DOJ Targets In-State Tuition for Noncitizens in Kentucky as Texas Students Fight Back

Undocumented students and immigrant advocacy organizations are still reeling after Texas, earlier this month, swiftly sided with a U.S. Department of Justice lawsuit against its policy of permitting in-state tuition for undocumented students. The two-decade-old law, which Republican state lawmakers had recently tried and failed to quash, was dismantled within a matter of hours in a move some critics called collusive.

Now the DOJ is employing the same strategy all over again—this time in Kentucky. The department filed a complaint in U.S. District Court for the Eastern District of Kentucky on Tuesday challenging the in-state tuition policy for undocumented students. The lawsuit, which names Democratic governor Andy Beshear, Commissioner of Education Robbie Fletcher and the Kentucky Council on Postsecondary Education, takes issue with a policy that allows graduates of Kentucky high schools who live in the state, regardless of citizenship, to access in-state tuition benefits.

“No state can be allowed to treat Americans like second-class citizens in their own country by offering financial benefits to illegal aliens,” U.S. attorney general Pamela Bondi said in a statement. “The Department of Justice just won on this exact issue in Texas, and we look forward to fighting in Kentucky to protect the rights of American citizens.”

Beshear is trying to distance himself from the legal battle. Crystal Staley, communications director for the governor’s office, said in a statement that the office hasn’t been served with a lawsuit, nor did it receive advance notice or hold prior conversations with the department about the regulation. She emphasized that the in-state tuition policy was established by the Kentucky Council on Postsecondary Education more than a decade ago.

“Under Kentucky law, CPE is independent, has sole authority to determine student residency requirements for the purposes of in-state tuition, and controls its own regulations,” Staley wrote. “The Governor has no authority to alter CPE’s regulations and should not be a party to the lawsuit.”

The Kentucky Council on Postsecondary Education also only became aware of the lawsuit Wednesday morning and reported that afternoon that it had not yet been served legal documents.

“Our staff General Counsel is reviewing pertinent federal laws and state regulations at this time to determine next steps,” Melissa Young, the council’s communications senior fellow, wrote in an email to Inside Higher Ed.

As of Wednesday evening, no new developments in the case had taken place, but Kentucky attorney general Russell Coleman, a Republican, indicated in a statement to Inside Higher Ed that his office planned to support the lawsuit.

“Preserving in-state tuition for our citizens at the commonwealth’s premier public universities is important to fostering Kentuckians’ potential and encouraging a vibrant state economy,” Coleman said in the statement. “Our Office will support the Trump Administration’s efforts to uphold federal law in Kentucky.”

As in Texas, a group of Republican lawmakers proposed legislation earlier this year to prevent noncitizens in Kentucky from qualifying as residents and accessing in-state tuition benefits. But the bill didn’t proceed further.

The new lawsuit heightens fears among undocumented students’ advocates that the Trump administration could target in-state tuition policies across the country, which help undocumented students in 23 states and D.C. pay for college when they can’t access federal financial aid. Advocates also worry the Trump administration could continue to sue red states to secure policy wins desired by both Republican state lawmakers and the federal government. (In Kentucky, Republicans control the attorney general’s office and the State Legislature.)

Monica Andrade, director of state policy and legal strategy at the Presidents’ Alliance on Higher Education, predicted after the Texas lawsuit, “This might only be the beginning, and there might be future actions that extend beyond Texas.”

Now she worries she’s been proven right.

Pushback in Texas

The move in Kentucky comes as undocumented students and civil rights organizations are fighting back in Texas.

The Mexican American Legal Defense and Educational Fund, a Latino civil rights organization, filed a motion on behalf of undocumented students in Texas to intervene in the DOJ lawsuit. The motion argues that the speed at which Texas and the DOJ came to an agreement and the judge closed the case provided no opportunity for a hearing or for the public to weigh in.

“Our federal courts are public agencies,” said Thomas A. Saenz, president and general counsel at MALDEF. “They’re supposed to undertake their work in the public eye. The two parties and the court did all of this behind closed doors in one afternoon, without setting a public hearing … That is a complete abuse of the judicial system.”

“To come up with a consent judgment like that, they had to have been planning this for weeks,” he said. “Every Texan should be offended if something their legislators passed and then never repealed was so easily killed by the attorney general acting in collusion with the Department of Justice.”

MALDEF is representing unnamed affected students, including three DACA recipients: a third-year biomedical science student at the University of Texas Rio Grande Valley who is planning to pursue medical school, a student earning a master’s in higher education at University of Houston who was planning to apply to Ph.D. programs and a master’s student in clinical mental health counseling at the University of North Texas.

“She cannot afford to pay out-of-state tuition and will likely be forced to drop out of her program,” the motion says of one student.

The goal is for the student group to become a party in the lawsuit so that it can appeal the decision. Texas and the federal government have until early July to oppose MALDEF’s motion to intervene, but if the judge denies an intervention, MALDEF could appeal that decision as well.

Andrade said that what MALDEF is doing could possibly be replicated in other states if the DOJ challenges more in-state tuition laws, though some states might face different challenges that require different approaches. For example, Republican lawmakers in Arizona included a provision in their House budget, approved June 12 by the House Appropriations Committee, that colleges can’t use public money to reduce tuition for noncitizens, The Arizona Capitol Times reported. Some cited the Texas lawsuit.

The Presidents’ Alliance is in “close coordination with legal, with advocacy and institutional partners to explore—whether it’s immediate or longer-term—actions that we can take” to prepare for different kinds of attacks, Andrade said. “Folks in the states where we’re having conversations, their laws comport with federal law. But given everything that’s been going on, that doesn’t mean that folks should not be preparing for any type of challenge.”

The organization is also trying to advise Texas undocumented students who are “scrambling,” in the absence of any state guidance to higher ed institutions as to when the tuition rate change goes into effect and to whom the shift applies. It’s unclear, for example, whether students with DACA or Temporary Protected Status are included.

“We’re telling students to continue to take their classes and do not make any drastic changes based on this,” Andrade said.

TheDream.US, a scholarship provider for undocumented students, is also gearing up to help Texas students find more affordable programs if they can’t pay their colleges’ out-of-state tuition prices. MALDEF predicted some students’ costs would increase up to 800 percent—in some cases, from $50 to $450 per credit hour.

Gaby Pacheco, president and CEO of TheDream.US, said the organization is prioritizing helping students connect with online programs, because many live in Texas border towns, where commuting to a more distant college could require having to cross immigration control checkpoints.

In the meantime, Texas institutions and students are embroiled in “confusion and uncertainty and chaos” as they await more information, she said.

Daniel I. Morales, an associate professor of law and Dwight Olds Chair at University of Houston Law Center, said what happened in Texas is the latest example of a national trend: the “absolute erasure” of state and local issues in favor of the administration’s priorities.

Morales said two decades ago, Texas’s in-state tuition policy was born out of Republican governor Rick Perry’s recognition of “the reality locally in Texas, that we have an enormous undocumented population that is enormously productive if given the opportunity to go to college,” which benefits the state economy. But now, state lawmakers fear risking their career trajectories if they don’t prioritize partisan national interests, he said.

He doesn’t know what’s going to happen in Kentucky. But if it goes the way of Texas and the attorney general files a joint motion with the DOJ, civil rights organizations such as MALDEF would have to be the ones to fight it, with students as the plaintiffs, he said.

“Students, if they don’t have the resources to pay out-of-state tuition, they don’t have the resources to litigate, either,” at least not on their own, he said. “There’s very little recourse.”