(Updated to include comments from attorney general and House speaker and Senate president)
The federal government on Wednesday morning filed a lawsuit against the state of Kansas challenging a 1994 state law that provides in-state tuition at higher education institutions for students who don’t live in the country legally.
“Federal law prohibits illegal aliens in our Nation from being eligible for in-state tuition benefits that are denied to out-of-state United States citizens,” says the lawsuit brought by the U.S. Justice Department.
“There are no exceptions. Yet Kansas has ignored this federal law for over two decades,” the lawsuit said.
State law extends eligibility for in-state tuition benefits at Kansas postsecondary educational institutions to “illegal aliens,” while United States citizens from other states must pay higher tuition rates, the lawsuit said.
“This is blatant unequal treatment favoring illegal aliens over United States citizens,” the lawsuit said. “Worse, such preferential treatment is squarely prohibited and pre-empted by congressional will.”
The government says that federal law mandates that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a state . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit …without regard to whether the citizen or national is such a resident.”
As a result, the Kansas in-state tuition law violates the supremacy clause of the U.S. Constitution and must yield to federal law, the lawsuit said.
The Justice Department is asking a federal judge to declare the state law invalid and unconstitutional. The federal government is seeking a permanent injunction that prohibits the state from enforcing the law.
The lawsuit came a couple months after the Legislature failed to override the governor’s veto of a bill that would have repealed the in-state tuition law. The Legislature didn’t attempt an override because it was lacking enough votes.
“As I repeatedly told the Legislature, giving instate tuition rates to illegal aliens clearly violates federal law and a lawsuit from the Department of Justice was inevitable,” Kobach said in a statement.
“The legislators who refused to listen are the reason this lawsuit happened,” he said.
House Speaker Dan Hawkins said the governor knew that a lawsuit was looming.
“We warned Gov, Kelly that vetoing the bill could lead to exactly this outcome,” Hawkins said in a statement..
“Unfortunately, she chose politics, and now Kansas taxpayers are left footing the bill. I will be watching this lawsuit closely as it develops.”
Masterson, who is running for governor, echoed the speaker’s comments.
“The bill passed the Senate and would be in effect today were it not for the veto of our Democrat governor,” Masterson said.
“When I’m governor, common sense laws like banning taxpayer-funded benefits for illegal aliens will be signed into law immediately.”
The governor’s office did not immediately respond to the lawsuit.
Democratic state Sen. Ethan Corson, a candidate for governor, criticized the legal action.
“Today’s lawsuit is the latest example of Donald Trump’s cruel immigration policies designed to harm our communities,” Corson said in a statement.
“The young Kansans he is targeting were brought to this country as children and for many this is the only home they know.
“When I was at Garden City Community College, the kids targeted in this lawsuit were my friends and classmates, and I know first hand how hard they worked to use their education to improve not only their own lives, but their whole community.
“Our government should uplift dignity and humanity, not increase fear and division. In the state senate, I’ve kept my friends in mind when I’ve voted to protect access to education for all Kansans, and as governor I will not hesitate to stand up to Trump whenever he goes after our state and our people,” he said.
The lawsuit brought against the state of Kansas is similar to ones that the Justice Department has filed against New Jersey, Texas, Kentucky, Oklahoma, Illinois, Minnesota, Virginia, Nebraska, and California.
A federal judge in June 2025 halted the 2001 Texas law signed by former Republican Gov. Rick Perry that gave college students without legal residency access to in-state tuition.
On that same day, Texas Attorney General Ken Paxton filed a joint motion along with the Trump administration to end the law for in-state tuition for immigrants not living in the country legally.
Last August, Oklahoma Attorney General Gentner Drummond filed a joint motion with the U.S. Department of Justice to end a state law giving in-state tuition to immigrants who live in the country illegally.
Last March, a federal judge in Kentucky approved a consent decree between the U.S. Department of Justice and the Kentucky Council on Postsecondary Education that rescinded a regulation that provided in-state tuition for students living in the country illegally.
The judge declared the Kentucky regulation invalid under the supremacy clause of the constitution and blocked the Council on
Postsecondary Education from apply the in-state tuition rates as called for under the regulation.
Earlier this month, federal judge struck down a Nebraska law allowing certain undocumented students to receive in-state tuition.
Not all of the court rulings have been consistent.
At the end of March, a federal judge ruled against the U.S. Justice Department in a lawsuit challenging Minnesota’s in-state tuition law.
U.S. District Judge Katherine Menendez – nominated to the court by former President Joe Biden – ruled that the in-state tuition program in Minnesota wasn’t preempted by a 1996 federal law prohibiting states from providing immigrants not lawfully in the United States with any postsecondary education benefit that is denied to U.S. citizens.
The judge agreed with the state of Minnesota that its in-state tuition law did not conflict with federal law because Minnesota does not provide benefits to undocumented students on the basis of residence.
Kobach said the Minnesota law is different from the Kansas statute.
He cites language in Kansas law that says “illegal” immigrants are “deemed” to be residents of Kansas. “Such deeming is solely for the purpose of making such illegal aliens eligible for postsecondary education benefits.”
“The Minnesota statute is different,” Kobach said. “The Minnesota statute doesn’t designate them as residents.
“The Kansas law expressly designates these individuals who are illegally in the country and attend a Kansas high school shall be considered residents for the purposes of tuition.
“That’s the key difference,” he said.
Last legislative session, Kansas lawmakers tried to pass a bill that would eliminate in-state tuition at higher education institutions for students who don’t live in the country legally.
It was part of a larger bill banning immigrants living in the country illegally from receiving most state or local benefits.
The bill passed 22-18 in the Senate and 78-46 in the House.
As much as he tried, Kobach couldn’t get lawmakers to override the governor’s veto of the bill.
On the last day of the session, Kobach met in a closed door-session with Senate Republicans to discuss how he believes that federal law requires the state to end the in-state tuition program.
Nevertheless, the Legislature didn’t try to override the veto, given that it was five votes short in the Senate and six short in the House. The veto override had to start in the Senate.
Kobach had cautioned lawmakers that the Trump administration could bring a challenge to the 1994 law like it had in several other states last year.
Last February, Kobach issued an opinion declaring that the state’s program providing tuition for immigrant students who live in the state illegally violates federal law.
“For more than 20 years, Kansas has been violating federal law with impunity,” Kobach said in a statement at the time.
“Now, the Trump Department of Justice is cracking down on states that have been violating that specific law banning in-state tuition for illegal aliens.
He said states have already been sued, and the federal government has already prevailed in two of them.
“Kansas legislators would do well to bring Kansas into compliance with the law rather than being sued by the federal government,” Kobach said.
