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Today, the Department of Justice filed lawsuits against three states challenging laws that provide in-state tuition and financial assistance to illegal aliens. The Department filed complaints against New York, Connecticut, and Vermont, alleging these laws unconstitutionally discriminate against U.S. citizens who are not afforded the same reduced tuition rates or scholarships — and reward illegal aliens with benefits that out-of-state American citizens are not eligible for, all in direct conflict with federal law.
"Congress long ago made clear that States cannot put illegal aliens over our Nation's own citizens," said Associate Attorney General Stanley Woodward. "By granting illegal aliens in-state tuition, New York, Vermont, and Connecticut are doing just that. No more. As of today, we have now sued every state in the Second Circuit that seeks to thwart Congress's clear prohibition by placing alien over citizen. And our efforts will not cease until President Trump's promise is fulfilled: illegal aliens will not receive benefits denied to our Nation's own citizens."
"This is a simple matter of federal law: colleges cannot provide benefits to illegal aliens that they do not provide to U.S. citizens," said Assistant Attorney General Brett A. Shumate of the Justice Department's Civil Division. "This Department of Justice will not tolerate American students being treated like second-class citizens in their own country."
In the complaints, the United States seeks to enjoin enforcement of New York, Connecticut, and Vermont laws, regulations, and policies that require colleges and universities to provide in-state tuition rates for all aliens who maintain in-state residency, regardless of whether those aliens are lawfully present. The complaints also seek to enjoin all three states from enforcing laws that afford financial assistance and scholarships to illegal aliens. Today's filings mark 17 lawsuits the DOJ has brought challenging in-state tuition for illegal aliens — and DOJ has already won permanent injunctions in Texas, Kentucky, Oklahoma, Nebraska, and Illinois.
The New York complaint strikes at the heart of the state's 2019 New York State DREAM Act — the Senator José Peralta New York State DREAM Act — which extended in-state tuition and eligibility for state financial aid, including Tuition Assistance Program (TAP) grants, Enhanced Tuition Awards, Excelsior Scholarships, and a range of other state-administered programs, to illegal aliens attending SUNY and CUNY campuses.
The DOJ complaint challenges New York's implementation of these benefits under Education Law § 661 et seq., arguing the state is expressly preempted by 8 U.S.C. § 1623(a) — the federal statute that prohibits any state from granting a postsecondary education benefit to an alien not lawfully present unless a U.S. citizen is eligible for that same benefit without regard to state residency. New York has provided those benefits to illegal aliens without making them available on equal terms to out-of-state American citizens. That, the DOJ argues, is a direct violation of federal supremacy.
The defendants named in the New York complaint include the State of New York, the State University of New York (SUNY) system, the City University of New York (CUNY) system, and the relevant state education officials in their official capacities. The DOJ seeks a declaratory judgment that New York's laws violate the Supremacy Clause, a permanent injunction barring their enforcement, and an award of costs and fees.
The stakes for New York are significant. CUNY and SUNY collectively enroll hundreds of thousands of students across dozens of campuses in the five boroughs and beyond. The NYS DREAM Act has provided millions of dollars in state financial aid to illegal alien students since its enactment. If the DOJ prevails — and it has prevailed in five similar suits so far — New York's flagship public university systems will be required to stop providing those benefits to students who are not lawfully present in the United States, and the funds redirected accordingly.
New York Democrats passed the DREAM Act after years of failed attempts, hailing it as a matter of equity and economic pragmatism. The DOJ's position is blunter: federal law has never permitted it, the state knew it, and no amount of state-level political consensus changes what Congress expressly prohibited in 1996. With wins already on the books in five states and a Fifth Circuit ruling affirming the federal preemption argument, the legal wind is not at Albany's back.
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