The U.S. Department of Justice has filed a lawsuit against the University of Delaware, challenging the university's policy of providing in-state tuition rates to students who are unlawfully present in the United States.
The complaint, filed Thursday in federal court, alleges the university's policy violates federal law because it allows some students who are not lawfully present in the country to receive reduced in-state tuition based on Delaware residency, while U.S. citizens from outside Delaware are not eligible for the same rate.
The lawsuit centers on a provision of federal law, 8 U.S.C. Section 1623, which states that a person who is not lawfully present in the United States cannot receive a postsecondary education benefit based on residency in a state unless a U.S. citizen or national can receive the same benefit without regard to state residency.
In its complaint, the Justice Department asks the court to prohibit the University of Delaware from enforcing the challenged policy. It also seeks an order preventing the university from adopting future tuition policies that provide preferential treatment to unlawfully present students over U.S. citizens.
Associate Attorney General Stanley E. Woodward Jr. said the Justice Department intends to continue challenging state laws and university policies that, in the department's view, provide preferential treatment to people who are unlawfully present in the United States.
Assistant Attorney General Brett A. Shumate of the Justice Department's Civil Division described the issue as one of enforcing federal law governing higher-education benefits.
The University of Delaware is not accused of violating the federal law through a criminal proceeding. The case is a civil lawsuit seeking to block enforcement of the university's tuition policy.
The lawsuit is part of a broader Justice Department effort targeting state and institutional policies concerning in-state tuition for students who are unlawfully present in the United States.
The department said Thursday's filing brings the number of lawsuits it has filed over in-state tuition policies to 26.
The DOJ previously challenged similar policies in Nebraska. In April, the department reached a proposed consent decree with Nebraska concerning state laws that provided in-state tuition and financial assistance to students who were unlawfully present in the United States.
The Justice Department has also pursued cases involving states including Texas, Kentucky, Oklahoma, Illinois and Kansas. The department said courts have issued favorable orders in those cases, including decisions involving in-state tuition policies. A federal court in Kansas, for example, ruled in September that the state's in-state tuition statute was preempted by federal law. The University of Delaware complaint cites that decision, along with a July ruling involving Illinois and a Fifth Circuit decision involving Texas.
Federal law governing the issue dates to 1996. Section 1623 was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act and has applied to higher-education benefits provided since July 1, 1998.
The lawsuit against the University of Delaware remains pending. The university will have an opportunity to respond to the federal government's allegations in court.
The Justice Department's complaint and federal law do not establish that the University of Delaware has ultimately violated the law; those questions will be decided through the court proceedings.