The Justice Department sued the University of Delaware on Thursday, October 1, 2026, challenging its in-state tuition policy for eligible undocumented students. The suit asks a federal court to block the university from offering the reduced rate.
The department’s press release, dated September 30 and updated October 1, carried Press Release Number 26-1125. The case is the first in the department’s campaign to target an individual institution rather than a state or municipal government. It is the 26th lawsuit in the campaign.
The complaint accuses the school of “prioritizing the needs of illegal aliens over U.S. citizens in defiance of Congress's commands.” The DOJ argues the policy gives an advantage to state residents while citizens from other states pay the higher nonresident rate.
The department asks the court to bar the university and its Board of Trustees from enforcing the current policy. It also wants an order preventing new tuition policies that favor undocumented immigrants over U.S. citizens.
The complaint seeks to block the policy, not just its current rates
The lawsuit rests on a 1996 federal law. The law bars undocumented immigrants from receiving a postsecondary education benefit unless citizens or U.S. nationals can receive that benefit without regard to state residence, according to the complaint.
The government says Delaware’s resident-only tuition rate fails that test because students from other states cannot qualify. Its complaint describes the policy this way:
“The University of Delaware maintains a policy […] that makes resident illegal aliens eligible for in-state tuition while denying that same benefit to U.S. citizens from other states. That constitutes blatant unequal treatment favoring illegal aliens over U.S. citizens”.
Associate Attorney General Stanley E. Woodward Jr. said the department would keep challenging state laws and university policies it considers preferential treatment. He said Congress had barred reduced tuition for undocumented immigrants when the same rate is unavailable to all Americans.
Assistant Attorney General Brett A. Shumate of the Civil Division called the dispute a straightforward application of federal law. He said colleges cannot provide benefits to undocumented immigrants that they do not offer U.S. citizens, adding that the DOJ would not tolerate American students being treated as “second-class citizens in their own country.”
Delaware ties eligibility to high school attendance and a quick enrollment window
The university’s Student Residency Classification policy allows students to qualify if they attended a Delaware high school for at least three years and graduated or earned an equivalent diploma. Applicants must have lived with a parent or legal guardian while attending school and provide evidence they are seeking citizenship or permanent residency.
They also must enroll within 18 months of graduating. The classification policy excludes people in the United States on student or other temporary visas, as well as those intending or legally required to return to a former country of residence. It does not expressly exclude people who lack official citizenship documents.
The price difference is substantial. For the 2026–2027 academic year, the school lists full-time resident tuition at $15,740, compared with $42,470 for full-time nonresidents.
A 2012 Delaware law authorized public higher education institutions to charge the resident rate to eligible students. The law’s bill estimated that 11 students across the university and Delaware State University would qualify at the time.
The lawsuit joins a broader campaign, but Virginia upheld a different pathway
The DOJ says lawsuits against Texas, Kentucky, Oklahoma, Nebraska, Illinois and Kansas produced favorable orders permanently blocking similar laws and declaring them unconstitutional. The department includes an order from the Fifth Circuit among those results. Those cases ended the tuition policies in the six states, affecting an estimated 180,000 students. At least 220,000 more live in states where cases remain pending, according to the Higher Education Immigration Portal.
Florida eliminated its policy in February 2025 and later barred undocumented students from enrolling in any selective public university. The DOJ lists pending lawsuits in Minnesota, Virginia, California, New Jersey, Massachusetts, Rhode Island, Maryland, Colorado, New York, Connecticut, Vermont, Arizona, New Mexico, Oregon, Washington, Hawaii, the District of Columbia, Arkansas and Utah.
President Donald Trump’s April 2025 executive order directed the attorney general to identify and stop policies that favor “aliens over any groups of American citizens.” Attorney General Todd Blanche leads the department’s effort.
A Virginia decision shows the courts have not reached the same result in every case. On October 5, 2026, Senior U.S. District Judge Robert Payne in Richmond granted summary judgment to Virginia and upheld the state’s 2020 Dream Act. The federal government had argued that the 1996 law barred the state’s tuition pathways.
Payne found that guidance from Virginia’s State Council of Higher Education made immigrant students categorically ineligible for the domicile route. He wrote, “Because undocumented students are not eligible for in-state tuition under the domicile pathway, the domicile pathway law is neither in conflict with, nor preempted by, Section 1623 (a).”
He also rejected the government’s claim that the law’s tuition-equity route served as a proxy for residence. The route can depend on Virginia high school attendance and graduation, an equivalency test or income-tax filings, the judge said. He also cited other tuition options, including the academic common market for students from 14 states in the Southern Regional Education Compact.
Virginia’s average undergraduate tuition in 2025–2026 was just under $10,000 for residents and more than $28,000 for nonresidents, excluding room and board. A little over 1,200 students not domiciled in Virginia used the Dream Act to qualify last school year.
The university is reviewing the complaint as advocates weigh a Supreme Court appeal
A university spokesperson said on October 1 that the school was reviewing the complaint and declined further comment because litigation was pending. “The University of Delaware is aware of the complaint filed today by the U.S. Department of Justice, and we are reviewing it carefully,” the spokesperson said.
Thomas A. Saenz, president and general counsel of the Mexican American Legal Defense and Education Fund, described the lawsuits as a “nationwide campaign and assault by the administration on the rights of these students.” MALDEF previously sought to intervene in cases in Kansas, Kentucky, Oklahoma and Texas, with mixed results. In September, Saenz said the group and other advocates were considering asking the Supreme Court to take up the issue.
Supporters of tuition policies like Delaware’s argue they can increase tax revenue, create jobs and expand gross domestic product. They also say eligible students often came to the United States as children and should have access to resident rates.
The Higher Education Immigration Portal counts 6,651 first-generation immigrant students in higher education across Delaware, including undocumented students. It does not provide a definitive figure for the university, which does not disclose students’ citizenship status under privacy laws.
This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
