The lawsuit against the University of Delaware matters less for Delaware than for what it makes possible. The Department of Justice no longer needs a state statute to end in-state tuition for noncitizens; it needs only a university rule. Any public institution whose residency or aid rules for these students rest on board or administrative authority must now choose between narrowing the rule itself and defending it under threat of an injunction that binds every future board.
Inside Higher Ed reported on 2 October that the department had filed its 26th lawsuit against policies allowing undocumented students to pay in-state rates. It is the first to target an individual institution rather than a state or municipal government (DOJ Sues University of Delaware Over Noncitizen In-State Tuition Policy, Inside Higher Ed). Earlier suits ended such tuition in Kansas, Kentucky, Illinois, Nebraska, Oklahoma and Texas, affecting an estimated 180,000 students. At least 220,000 more live in states where litigation continues. The complaint seeks to bar in-state rates for undocumented students even if they are lawfully present, and to stop any new policy that would "favor illegal aliens over U.S. citizens".
Suing a state requires a statute to attack. Suing a university requires only a university rule. The constraint on the campaign moves from state law to the department's capacity, and legislative silence stops protecting anyone. The article does not say why Delaware was chosen. My reading is that its policy sits at institutional level, which would make it the template for further suits. The first task is a policy-source audit. List every rule governing noncitizen tuition and aid eligibility, and record whether it rests in statute, board policy or registrar and admissions practice. Only the first needs a legislature to change it. If any share sits below statute, the institution is in the Delaware category, and a judgment against the institution alone can end the rule.
The second error will be in the headcount. The phrase "even if they are lawfully present" reaches beyond the undocumented students most offices track. Count every student billed at resident rates who is neither a citizen nor a permanent resident, including those with lawful-presence status. That scope is my inference, because the article does not say which categories the complaint names. If the count exceeds the figure in current planning by more than about a third, rebuild revenue and retention estimates before deciding anything. Then sum, by cohort, the remaining years of institutional scholarships whose eligibility refers to immigration status. The "favor" language reaches aid as well as tuition. Each multi-year award is a promise the institution may be enjoined from keeping.
Reclassification is not a revenue gain. The expected net change per student is the probability the student stays, multiplied by nonresident tuition, minus resident tuition. The change is a loss whenever the stay probability falls below resident tuition divided by nonresident tuition. As an illustration, not a figure from the article, if resident tuition is 40 per cent of nonresident, fewer than 4 in 10 staying is a net loss. Form matters more than the money. The complaint seeks to prevent future policies, not only to end the current one. A voluntary change can grandfather enrolled students and can be reversed later. An injunction cannot. The article does not say whether the six state cases ended by ruling or settlement. Inference: adjudicated precedent may be thin, so a lone defender could be the one creating it.
This forces two decisions. Settle the treatment of enrolled students before the next billing cycle, because mid-year reclassification maximises stop-outs. Rewrite status-keyed aid to need or schooling-history criteria. Coordination with the state attorney general and peers is also cheaper before a complaint than after. The Mexican American Legal Defense and Education Fund (MALDEF) intervened in four state cases with mixed results, and its president, Thomas A. Saenz, said in September that advocates were considering a Supreme Court petition. Inference: an institution defending alone may become that vehicle.
The load-bearing facts from the article are these: this is the first institution-level suit, it is the 26th overall, there are six state outcomes, and the complaint's lawfully-present and future-policy language. Why Delaware was chosen, which categories are in scope, how the earlier cases ended, and the 40 per cent ratio are my inference or illustration.
Responding to DOJ Sues University of Delaware Over Noncitizen In-State Tuition Policy, Inside Higher Ed.