TODD BLANCHE SWORN IN AS TRUMP’S ATTORNEY GENERAL — HIS FIRST MOVES STUN WASHINGTON
DOJ Sues New York, Connecticut and Vermont Over In-State Tuition—But the Fight Turns on What “Based on Residence” Means
The Justice Department has opened three new fronts in its nationwide campaign against state tuition benefits for undocumented students.
On August 10, the federal government sued New York, Connecticut and Vermont, asking judges to block laws that allow certain students who are not lawfully present in the United States to receive in-state tuition rates and, in some cases, financial assistance at public colleges and universities.
The Justice Department says the policies violate federal immigration law because some undocumented students can receive educational benefits unavailable on the same terms to U.S. citizens who live outside those states.
The three lawsuits bring DOJ’s total number of challenges to similar state policies to 17.
And with New York, Connecticut and Vermont now in court, the department says it has sued every state within the Second Circuit that maintains a policy of the type it is challenging.
The political message from the Trump administration is straightforward.
“This is a simple matter of federal law,” Assistant Attorney General Brett A. Shumate said in announcing the cases.
But the legal issue underneath that message is more complicated.
Federal law does restrict states from giving certain higher-education benefits to immigrants who are not lawfully present while withholding those same benefits from Americans based on where those Americans live.
It does not, however, simply say that every undocumented student is categorically prohibited from receiving an in-state tuition rate.
The exact wording matters.
Under 8 U.S.C. §1623, an immigrant who is not lawfully present cannot receive a postsecondary education benefit on the basis of residence within a state unless a U.S. citizen or national can receive the same benefit, in no less amount, duration and scope, without regard to whether that citizen is a resident of the state.
That phrase—“on the basis of residence”—has become one of the most important parts of the national litigation.
The Trump Justice Department interprets it broadly.
States defending their programs have argued that some tuition rules depend not simply on residency but on other criteria such as attending and graduating from a high school in the state.
Federal courts have not treated every version of those policies identically.
That is why the new lawsuits against New York, Connecticut and Vermont cannot yet be described as settled law.
They are the beginning of three new cases.
The federal government still has to persuade the courts that the specific laws of each state fall within the prohibition Congress enacted.
New York provides a good example of the dispute.
DOJ’s complaint says undocumented students can qualify for resident tuition at SUNY or CUNY if they meet specified educational requirements.
Among the pathways identified in the complaint are attending an approved New York high school for at least two years, graduating and applying to SUNY or CUNY within five years, or completing an approved New York GED program and applying within the required period.
The statutes also require students without lawful immigration status to file an affidavit concerning an intention to seek legal immigration status when eligible.
Those criteria might initially appear different from simply saying:
Live in New York and receive New York tuition.
DOJ’s argument is that the distinction does not save the law.
The federal complaint alleges that attendance at New York public high schools is itself largely tied to residence within a New York school district.
From the government’s perspective, the high-school requirement therefore operates as a residency mechanism.
The department argues that an eligible undocumented student effectively receives the same resident tuition rate available to New York residents while an American citizen who does not satisfy New York’s residency-related requirements can be charged substantially more.
The financial difference can be substantial.
In its complaint, DOJ says annual SUNY tuition for an in-state student was approximately $7,070 compared with $17,730 for an out-of-state student.
At CUNY, the government cited a resident undergraduate tuition rate of $3,465 per semester, compared with $620 per credit for nonresident students.
New York’s lawsuit goes beyond tuition.
DOJ is also challenging provisions allowing certain students without lawful immigration status to participate in state financial-aid programs.
The complaint identifies programs administered through the New York Higher Education Services Corporation, including the Tuition Assistance Program and other state awards, and challenges provisions covering financial assistance at community colleges as well.
The Justice Department’s theory is consistent throughout.
If eligibility ultimately rests on being a New York resident—or on criteria that DOJ argues operate as a substitute for residence—then §1623 requires comparable treatment for American citizens regardless of whether they live in New York.
New York disputes the administration’s broader characterization.
After the lawsuit was filed, a representative for Gov. Kathy Hochul said the state was reviewing the complaint but was confident its statute was lawful.
The governor’s position is that students who attended New York high schools should have an opportunity to pursue higher education in the state.
Connecticut presents a similar dispute with somewhat different statutory details.
Connecticut began extending in-state tuition eligibility to certain undocumented students in 2011.
Under the current criteria described in the federal complaint, qualifying students generally must satisfy requirements connected to attendance at a Connecticut high school, graduation or an equivalent credential and other statutory conditions.
DOJ also challenges several Connecticut financial-aid provisions.
Its complaint identifies laws involving institutional financial aid and other education assistance, arguing that undocumented students meeting Connecticut requirements can receive benefits that an otherwise eligible American living outside Connecticut may not receive.
Connecticut is not conceding the point.
Attorney General William Tong has said the state will defend its policy.
Gov. Ned Lamont has likewise argued that students who grow up in Connecticut and graduate from its public schools should have an affordable route to college, including certain students who lack permanent lawful immigration status.
That response illustrates the state side of the policy argument.
States supporting these laws generally do not describe themselves as giving foreign nationals an advantage over Americans.
They describe the benefit as an investment in students who were educated in the state, often lived there for years and are part of the state community.
The Justice Department sees the comparison differently.
Its comparison group is not undocumented Connecticut students versus Connecticut citizens.
It is undocumented students receiving the resident rate versus American citizens from another state who must pay the nonresident rate.
That difference in comparison is central to the dispute.
Vermont’s law is newer.
In 2024, Vermont enacted legislation that made immigration status generally irrelevant to eligibility for in-state tuition and certain need-based financial assistance if the student otherwise satisfies Vermont requirements.
DOJ says that approach violates §1623 when it benefits immigrants who are not lawfully present while U.S. citizens outside Vermont remain excluded from the same resident benefits.
The federal complaint names the State of Vermont, Vermont State Colleges, the University of Vermont and State Agricultural College and the Vermont Student Assistance Corporation.
It seeks declaratory and injunctive relief preventing enforcement of the provisions DOJ considers preempted by federal law.
The department has described all three states’ policies in unusually strong terms.
Its August 10 announcement said they place “aliens over citizens” and argued that the challenged policies both violate federal law and create incentives for illegal immigration.
The first proposition is a legal claim now before federal courts.
The second is a policy argument.
The lawsuits themselves do not establish as a factual finding that offering in-state tuition causes additional unlawful immigration.
Congress did express concerns in 1996 about public benefits creating immigration incentives, language DOJ cites in its complaints.
But whether a particular state tuition policy actually produces measurable migration effects is a separate empirical question from whether the policy conflicts with §1623.
That distinction is particularly important because the Justice Department repeatedly uses constitutional language in describing the lawsuits.
DOJ says the state policies “unconstitutionally discriminate” against American citizens.
But the principal legal claims in the complaints are more specifically framed as federal preemption under the Supremacy Clause.
The government argues Congress enacted a federal rule controlling these benefits and that conflicting state provisions therefore must yield.
That is not exactly the same as saying a court has already found the states guilty of unconstitutional discrimination.
No such final judgment exists yet in these three cases.
New York, Connecticut and Vermont were sued on August 10.
The government has made its allegations.
The states now have the opportunity to answer them.
The Justice Department nevertheless enters those cases with several victories it can point to.
Its August announcement says favorable orders have been obtained in Texas, Kentucky, Oklahoma, Nebraska and Illinois.
Those results have prevented enforcement of analogous policies in those states.
But the procedural history of those victories matters.
Texas, for example, did not begin with the type of fully adversarial state-versus-federal fight now developing in Connecticut.
When DOJ sued Texas in June 2025, Texas officials agreed with the federal government that the state law conflicted with §1623.
The district court entered a consent judgment permanently preventing enforcement of the challenged provisions as applied to immigrants not lawfully present.
Oklahoma likewise produced a consent judgment.
Those outcomes are legally meaningful because the policies were blocked.
But a consent judgment is different from a court hearing competing interpretations from two parties vigorously defending opposite positions and then independently deciding which statutory interpretation is correct.
A federal judge in Minnesota later emphasized precisely that distinction.
In United States v. Walz, DOJ challenged Minnesota policies that allowed certain undocumented students to receive resident tuition and participate in the North Star Promise program.
Minnesota fought the case.
And on March 27, U.S. District Judge Katherine Menendez dismissed the federal government's complaint with prejudice.
Her reasoning goes directly to the issue the new cases may have to confront.
Minnesota’s law used criteria including attendance at a Minnesota high school and graduation from a Minnesota school.
The federal government argued those requirements were effectively residency requirements by another name.
Menendez rejected that interpretation.
She concluded that students could satisfy the statutory criteria even if their principal dwelling place was outside Minnesota.
Therefore, she found that the benefit was not provided “on the basis of residence” within the meaning of §1623.
The court also examined the Texas and Oklahoma consent judgments.
Menendez noted that those cases had not initially required the courts to resolve the statutory issue through contested merits litigation because the federal and state governments had agreed on the outcome.
She therefore declined to treat those consent judgments as persuasive authority resolving Minnesota’s different statutory structure.
That does not make Minnesota the final national answer either.
DOJ appealed the ruling to the Eighth Circuit in May.
The litigation remains ongoing.
And other federal courts have reached conclusions favorable to the Justice Department in cases involving statutes structured differently.
That developing split in reasoning is one reason the three Second Circuit cases matter.
The federal statute is the same.
The state laws are not.
A state law explicitly saying that an undocumented person qualifies because he or she is a resident may present a relatively direct §1623 issue.
A policy saying a student qualifies because he or she attended an in-state high school for several years can present a harder question.
If high-school attendance is merely evidence of residence, DOJ can argue the benefit is still residency-based.
If high-school attendance is an independent eligibility criterion available without regard to a student’s current residence, the state can argue §1623 does not apply.
New York could become particularly important on that issue because its statute relies heavily on high-school and GED-related criteria while DOJ simultaneously argues that those criteria are inseparable from New York residency.
Connecticut contains similar elements.
Vermont’s legislation appears more directly focused on treating state residents equally regardless of immigration status, potentially giving DOJ a somewhat different statutory argument there.
The financial-aid challenges could add another layer.
Section 1623 applies to “any postsecondary education benefit.”
That language is broader than tuition alone.
DOJ therefore argues that state-funded grants, scholarships and other assistance tied to residence can fall within the same federal restriction.
New York’s complaint challenges multiple forms of aid.
Connecticut’s complaint challenges several financial-assistance statutes.
Vermont’s complaint targets both reduced tuition and need-based aid.
So even if a court draws distinctions among particular tuition rules, it may still have to separately examine the eligibility requirements for scholarships or grants.
That is why describing all 17 lawsuits as one legal question can be misleading.
The Trump administration has a national strategy.
But each case depends on the language of an individual state’s statutes.
And the procedural posture can matter almost as much as the policy.
In Nebraska, the state joined the federal government in proposing a consent decree after DOJ sued.
Kansas similarly joined DOJ in proposing a consent decree when the federal government filed its case there, although that decree required court approval and other parties sought to intervene.
That is a very different litigation environment from Connecticut, where the attorney general has publicly promised to fight.
It is also different from Minnesota, where the state defended its statutes and won at the district-court level before DOJ appealed.
The national scorecard therefore cannot simply be described as courts uniformly accepting the administration’s interpretation.
The Justice Department has secured significant results.
But some resulted from states agreeing with DOJ.
At least one contested district-court decision went the other way.
And multiple appeals remain capable of changing the legal landscape.
DOJ nevertheless has an important appellate precedent in its favor.
Its New York complaint cites the Fifth Circuit’s 2023 decision in Young Conservatives of Texas Foundation v. Smatresk, which discussed §1623 and recognized its preemptive force when a state actually grants benefits to immigrants not lawfully present while withholding the same benefit from citizens under the conditions described by the federal statute.
But Menendez concluded that Young Conservatives did not resolve Minnesota’s case because the Minnesota eligibility structure was materially different and the Fifth Circuit is not binding on a federal district court in the Eighth Circuit.
The same geographic point now becomes relevant in New York, Connecticut and Vermont.
All three states sit within the Second Circuit.
DOJ says the August lawsuits mean it has now challenged every Second Circuit state maintaining one of these policies.
If one or more of the cases eventually reaches that federal appeals court, the Second Circuit could produce an important appellate interpretation of §1623 governing all three states.
That could bring greater clarity to a statute that has existed since 1996 but has produced surprisingly limited appellate litigation over the exact meaning of “on the basis of residence.”
The states also have broader policy arguments.
Supporters of in-state tuition for undocumented students generally argue that a student who spent years attending a state’s schools should not suddenly be treated as an outsider when entering college simply because of immigration status.
They contend that higher tuition can effectively place college out of reach for young people who may have been brought to the United States as children and received most of their education in the state.
Connecticut officials have framed their policy in essentially those terms.
They say the state is investing in students who grew up and graduated there.
The federal government’s response is equally straightforward.
Whatever policy arguments states make, Congress enacted a federal restriction.
DOJ says states remain free to design education policy only within that federal boundary.
If an undocumented resident gets a taxpayer-supported tuition rate while an American citizen from another state is forced to pay more solely because the American is not a resident, the administration argues that Congress has already forbidden that arrangement.
The strongest version of DOJ’s case is therefore not simply that undocumented students should receive no public educational assistance.
The statute does not say that in those terms.
The stronger argument is that a state cannot use residence to confer a higher-education benefit on someone not lawfully present while denying the same residence-based benefit to U.S. citizens from elsewhere.
The states’ strongest response is equally narrow.
They can argue that their programs do not actually award eligibility “on the basis of residence” in the way Congress prohibited—or that particular eligibility criteria apply without regard to immigration status and can also be satisfied by U.S. citizens.
Minnesota has already persuaded one federal judge of that argument.
Whether New York, Connecticut or Vermont can do the same will depend on their own statutory language.
That is why the Justice Department’s claim that the issue is a “simple matter of federal law” describes only one side of the litigation.
The text of §1623 is short.
Applying it is not always simple.
The difference between “resident tuition” as the name of a benefit and receiving that benefit legally because of residence can determine whether federal preemption applies.
So can the difference between current residency and years of in-state high-school attendance.
Those distinctions may appear technical.
For affected students, they can mean thousands of dollars per year.
And for the states, they determine how much authority remains to decide who qualifies for subsidized public higher education when federal immigration law is also involved.
The Trump administration has made clear that it intends to keep pressing the issue nationally.
DOJ says the three August 10 complaints bring its total to 17.
Its announcement lists additional litigation involving California, New Jersey, Kansas, Massachusetts, Rhode Island, Maryland, Colorado, Virginia and Minnesota, among other states or ongoing appellate proceedings.
The campaign therefore has already moved far beyond a dispute with one state legislature.
It is becoming a national test of a federal law that sat comparatively quietly for decades.
For the administration, the principle is that American citizens should never receive less favorable treatment because they live across a state line while undocumented residents receive taxpayer-supported tuition benefits.
For states defending the programs, the principle is that they should be allowed to educate students who have meaningful ties to their communities and satisfy state-created academic or residency-related criteria.
Federal courts now have to determine where Congress drew the line between those two positions.
The August 10 lawsuits do not answer that question.
They formally ask it.
And one earlier case provides an important warning against predicting the outcome simply from DOJ’s previous victories.
Texas and Oklahoma agreed to judgments blocking their laws.
Nebraska and Illinois produced rulings favorable to the federal government.
But Minnesota defended its policy and persuaded a federal judge that §1623 did not reach it because eligibility was not actually based on residence as the federal statute uses that term. DOJ is appealing.
New York, Connecticut and Vermont now enter that unsettled landscape.
DOJ may ultimately prove that their statutes cross the federal line.
The states may establish that their eligibility rules are legally distinguishable.
Or appellate courts may develop broader interpretations that reshape similar programs nationwide.
For now, one fact is clear.
The Trump Justice Department is no longer treating state tuition policies for undocumented students as isolated education decisions.
It is treating them as a federal immigration-law issue and systematically taking states to court.
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What remains unresolved is whether the courts will agree that all of the policies DOJ is targeting actually provide benefits “on the basis of residence” within the meaning Congress gave those words.
That distinction—not simply whether an undocumented student receives cheaper tuition—is where much of the real legal fight lies.
