The Justice Department has filed what it describes as the final wave of lawsuits against state and local governments that provide in-state tuition benefits to undocumented students, targeting Hawaii, Arkansas, Utah, and Washington, D.C., in a coordinated legal escalation that marks a decisive turn in the federal government’s long-running battle over immigration and education policy. The suits, announced in September 2026, challenge statutes and municipal codes that extend resident tuition rates to students who lack lawful immigration status, arguing that such policies are preempted by federal immigration law. This latest round of litigation follows a pattern established in earlier actions against California and other jurisdictions, and it signals that the Department of Justice is intent on pressing its interpretation of the Immigration and Nationality Act to its logical conclusion — even as the legal landscape remains deeply fractured across federal circuits.
For the thousands of undocumented students currently enrolled or seeking enrollment in public colleges and universities across these four jurisdictions, the lawsuits inject a new layer of uncertainty into what was already a precarious path to higher education. The DOJ’s position, if upheld, could dismantle tuition-equity programs that have been in place for years in some states and force state legislatures to either defend costly litigation or recalibrate their education policies under the threat of federal preemption. At the same time, the suits raise fundamental questions about the limits of state authority in the absence of comprehensive federal immigration reform — questions that are likely to end up before the Supreme Court.
The Four Jurisdictions at the Center of the DOJ’s Final Enforcement Wave
The Justice Department’s decision to name Hawaii, Arkansas, Utah, and the District of Columbia as defendants in this final wave of litigation was not arbitrary. Each jurisdiction had enacted laws or policies that the DOJ determined were in direct conflict with Section 1623 of the Immigration and Nationality Act, which bars states from providing postsecondary education benefits to undocumented immigrants unless they offer the same benefits to U.S. citizens regardless of state residency. The DOJ argues that in-state tuition is a benefit that must be made available equally to U.S. citizens from any state if it is offered to undocumented students — a standard that none of these jurisdictions meet.
Hawaii’s law, codified in state statute, allows students who meet certain residency and attendance requirements to qualify for resident tuition regardless of immigration status. Arkansas had adopted a policy through its higher education coordinating board that extended in-state rates to undocumented students who graduated from Arkansas high schools. Utah’s program, one of the oldest in the nation, has provided tuition equity to undocumented students since 2002 and requires students to attend Utah high schools for at least three years and sign an affidavit of intent to legalize their status. The District of Columbia’s Tuition Assistance Grant Program, which provides funding for D.C. residents to attend public colleges nationwide, was also challenged on the grounds that it does not require proof of lawful presence for eligibility.
Each of these programs, while differing in structure and statutory basis, shares a common goal: to make higher education financially accessible to students who were brought to the United States as children and who have grown up as de facto members of their communities. The DOJ’s suits argue that whatever the merits of these policies as a matter of social equity, they are legally invalid under federal supremacy principles.
The Legal Theory Behind the DOJ’s Tuition-Benefit Challenges
To understand the DOJ’s legal theory, it is essential to examine Section 1623 of the Immigration and Nationality Act, the federal statute at the heart of these lawsuits. Enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Section 1623 provides that an alien who is not lawfully present in the United States is not eligible for any postsecondary education benefit on the basis of residence in a state unless every U.S. citizen is eligible for the same benefit regardless of whether the citizen is a resident of that state. In other words, if a state wants to offer in-state tuition to undocumented students, it must also offer that same rate to citizens from other states who have no connection to the state — a requirement that effectively makes the benefit financially and politically unworkable.
The DOJ’s position is that this statute preempts any state law that attempts to confer in-state tuition on undocumented students without simultaneously extending the same rate to all U.S. citizens. The department has consistently argued that the plain language of Section 1623 leaves no room for state discretion: the benefit must be available to all citizens on equal terms, or it cannot be offered to undocumented students at all. The lawsuits against Hawaii, Arkansas, Utah, and D.C. are grounded in this straightforward preemption argument, and the DOJ has framed them as the culmination of a deliberate enforcement strategy designed to test and ultimately settle the legal question.
A common question among students, educators, and policy analysts is: What is the DOJ actually asking the courts to do in these lawsuits? The answer is that the DOJ is seeking declaratory judgments that the challenged state and local laws are preempted by federal law, as well as injunctions barring the defendants from continuing to enforce those laws. If the DOJ prevails, the affected jurisdictions would be required to stop offering in-state tuition to undocumented students unless they simultaneously extend the same benefit to all U.S. citizens regardless of residency — a change that would have sweeping financial and administrative consequences.
Historical Context: How We Got Here
The DOJ’s tuition-benefit enforcement campaign did not emerge in a vacuum. For nearly two decades, states across the country have grappled with how to treat undocumented students in their public higher education systems. The passage of the DREAM Act at the federal level — which would have provided a path to lawful status for certain undocumented youth — has been repeatedly proposed and repeatedly stalled in Congress, leaving states to act unilaterally. By 2026, more than 20 states and the District of Columbia had adopted some form of tuition equity policy, ranging from explicit statutory provisions to administrative rules set by boards of regents or higher education coordinating bodies.
The Obama administration generally took the position that Section 1623 did not bar states from offering in-state tuition to undocumented students, as long as the state had a residency-based system that applied uniformly. The Trump administration reversed course, launching a series of lawsuits against states that had adopted tuition-equity laws, including California, New York, and others. The Biden administration initially paused these enforcement actions but later resumed them in a modified form. By the time the current DOJ leadership filed this final wave of suits, the issue had become a perennial flashpoint in the broader debate over immigration federalism.
One critical development that shaped the legal terrain was the 2022 decision by the U.S. Court of Appeals for the Ninth Circuit in California v. U.S. Department of Justice, which upheld California’s tuition-equity law against a preemption challenge. That decision, while binding only within the Ninth Circuit, provided a roadmap for other states to defend their programs. However, the DOJ has continued to press the issue in other circuits, hoping to create a circuit split that would compel Supreme Court review. The suits against Hawaii, Arkansas, Utah, and D.C. — which fall within the Ninth, Eighth, Tenth, and D.C. Circuits, respectively — are designed to achieve exactly that outcome.
What the Lawsuits Mean for Undocumented Students on the Ground
For undocumented students in the targeted jurisdictions, the immediate practical impact of these lawsuits is a climate of profound uncertainty. Students who have already enrolled in college on the basis of in-state tuition rates now face the possibility that those rates could be revoked mid-semester or for future terms. High school seniors who were planning to apply to in-state public universities under tuition-equity policies must now weigh whether those programs will still exist by the time they matriculate. The psychological and financial toll of this uncertainty is difficult to overstate.
Consider the specific situation in Utah, where the tuition-equity program has been in place since 2002 and has enabled thousands of students to attend the state’s public colleges and universities at resident rates. Many of these students are DACA recipients — participants in the Deferred Action for Childhood Arrivals program — who have work authorization and social security numbers but who remain in a legally ambiguous status. Utah’s program requires students to sign an affidavit of intent to legalize their status, a provision that the state has argued demonstrates compliance with federal law. The DOJ counters that no such affidavit can cure the fundamental conflict with Section 1623.
In the District of Columbia, the stakes are equally high. The D.C. Tuition Assistance Grant Program is unique in that it provides funding for D.C. residents to attend public colleges in other states, effectively allowing students to pay in-state rates at institutions across the country. Disqualifying undocumented students from this program would not only affect their access to affordable education but could also have ripple effects on the universities that have come to depend on D.C. students as a source of enrollment and diversity.
Arkansas and Hawaii present their own distinct challenges. Arkansas’s policy was established through administrative action by the state’s higher education coordinating board, which means it could be more vulnerable to legal challenge than a statute enacted by the legislature. Hawaii’s program, by contrast, is embedded in state law and benefits from the state’s unique geographic and demographic context, including its large immigrant community from Asia and the Pacific Islands.
The Judicial Outlook: Circuit Splits and the Likely Path to the Supreme Court
The DOJ’s strategy of filing suits in multiple circuits is a deliberate attempt to create a conflict among federal appellate courts that would make Supreme Court review all but inevitable. As of this writing, the Ninth Circuit has upheld a tuition-equity program against a preemption challenge, while other circuits have not squarely addressed the question. If the DOJ prevails in any of these new suits — or if it loses in one circuit while winning in another — the resulting circuit split would provide the Supreme Court with a compelling reason to grant certiorari and resolve the issue once and for all.
The composition of the Supreme Court in 2026 adds another layer of complexity. The Court’s conservative majority has shown a willingness to limit state authority in areas where federal immigration law is deemed to occupy the field, as seen in decisions like Arizona v. United States (2012) and Kansas v. Garcia (2020). However, the Court has also recognized that states retain significant police powers in areas not expressly preempted by federal law, and the tuition-equity question sits at the intersection of these competing principles. Justices may be reluctant to strike down state laws that have been in effect for years and that enjoy broad public support, particularly in states with large immigrant populations.
How long will these lawsuits take to resolve? The timeline depends on the speed of the district courts in each jurisdiction, the willingness of the parties to seek expedited review, and the availability of the Supreme Court to hear the case. A realistic estimate is that the litigation will take at least two to three years to reach a final resolution, barring any legislative intervention by Congress. In the meantime, students and universities will have to navigate a patchwork of conflicting lower-court rulings, with some jurisdictions potentially issuing injunctions that temporarily block the DOJ from enforcing its interpretation of Section 1623.
Strategic Implications for States and Higher Education Institutions
The DOJ’s lawsuits are not merely legal actions; they are strategic signals to every state that has adopted or is considering adopting a tuition-equity policy. Even states that are not named in this final wave of suits should take notice, because the DOJ has made clear that it views any tuition-equity program that does not meet the Section 1623 standard as unenforceable. For state legislatures and higher education boards, this means that any new tuition-equity proposals will be drafted with an eye toward the DOJ’s legal arguments, potentially incorporating provisions designed to bring the programs into compliance with federal law — such as extending the same benefits to all U.S. citizens regardless of residency.
For universities and colleges, the practical challenges are immediate. Financial aid offices must now prepare contingency plans for the possibility that their in-state tuition classifications for undocumented students will be invalidated. Admissions offices must decide how to communicate with prospective students and their families about the uncertain status of tuition benefits. And university counsel must evaluate the risk of continued enforcement of existing policies pending the outcome of litigation. Some institutions may choose to voluntarily modify their policies in an effort to avoid being named in future lawsuits, while others may decide to defend their programs as a matter of principle.
The financial implications are also significant. In-state tuition rates are typically two to three times lower than out-of-state rates, meaning that a loss of tuition-equity could increase the cost of attendance for undocumented students by thousands of dollars per year. For students from low-income families — which constitute a disproportionate share of the undocumented student population — this increase could be prohibitive, effectively pricing them out of higher education altogether. The resulting decline in enrollment would not only harm individual students but would also reduce tuition revenue for public universities, many of which are already facing budget pressures.
Broader Policy Context: The Absence of Federal Immigration Reform
At the root of the tuition-benefit controversy is the failure of Congress to enact comprehensive immigration reform. For more than two decades, the DREAM Act and similar proposals have been introduced in nearly every session of Congress, only to stall due to partisan gridlock, competing priorities, and fundamental disagreements over the scope of any legalization program. In the absence of federal action, states have filled the vacuum with their own policies — some welcoming, some restrictive — creating the kind of patchwork that the Immigration and Nationality Act was designed to prevent.
The DOJ’s lawsuits can be understood as an attempt to reassert federal primacy in an area where states have effectively been making policy by default. But the approach has its critics, who argue that the DOJ is using litigation to achieve what Congress has been unable to do legislatively: a uniform national rule prohibiting tuition equity for undocumented students. Proponents of the state programs, by contrast, argue that the DOJ is misreading Section 1623 and that states have the authority under their own police powers to set tuition rates for their public universities.
The broader question — whether undocumented students should have access to in-state tuition at all — is fundamentally a policy choice that the Constitution leaves to the political branches. Until Congress acts, the courts will continue to be the arena in which this debate is fought, and the DOJ’s final wave of tuition-benefit suits ensures that the fight will continue at the highest level of the judiciary.
For the students caught in the middle, the stakes could not be higher. Education remains one of the most reliable pathways to economic mobility and social integration, and the denial of affordable tuition can foreclose that pathway entirely. The DOJ’s suits may ultimately clarify the law, but they cannot resolve the deeper human and ethical questions at the heart of the immigration debate — questions about who belongs, who deserves opportunity, and what it means to be a member of a community. As these cases move forward, they will test not only the limits of federal power but also the capacity of the legal system to deliver justice in an area where the political branches have failed to provide clear guidance.
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