A group of Kansas students without lawful immigration status are seeking to intervene in the federal government’s challenge to a 2004 state law that provides in-state tuition to students who live in the United States illegally.
A group called Kansas Students for Affordable Tuition filed a motion on Wednesday seeking to defend the state law saying the attorney general doesn’t adequately represent its interests because he’s agreed to have the law declared unconstitutional.
The group – called KanSAT – says its members are targets of the lawsuit. They said a judgment striking down the law would erase a legal protection that they count on to afford tuition to attend higher education institutions in Kansas.
“Students without lawful immigration status in Kansas — such as KanSAT’s members — face severe financial hardship if required to pay out-of-state tuition rates after relying on regular tuition rates for years,” the student’s lawyers argue in their filing.
“KanSAT’s members, like many students without lawful immigration status, come from low-income backgrounds and are not eligible for federal financial aid,” their brief said.
“That makes paying out-of-state tuition rates particularly difficult. If they are forced to pay out-of-state tuition rates, KanSAT members may be forced to drop out of their educational programs after investing years of study and substantial financial resources.”
The student group is represented by lawyers from the American Civil Liberties Union Foundation of Kansas and the Mexican American Legal Defense Fund.
The group said the attorney general failed to represent its interest when he “willingly entered into an expedited agreement to have (the state’s) own law declared unconstitutional and to be enjoined from enforcing it — a failure underscored by the governor of Kansas’s own motion to intervene, alleging inadequate representation of the state’s interests.”
Last week, President Donald Trump’s administration filed a lawsuit challenging the tuition statute, similar to legal challenges the federal government brought against similar laws in New Jersey, Texas, Kentucky, Oklahoma, Illinois, Minnesota, Virginia, Nebraska and California.
Very quickly after the lawsuit was filed, Republican Kansas Attorney General Kris Kobach, a longtime critic of the in-state tuition law, joined in a proposed consent decree with the U.S. Justice Department to have the law declared invalid under federal law.
The consent order must be approved by U.S. District Judge Holly Teeter, a Trump appointee.
Democratic Gov. Laura Kelly then filed a motion to intervene in the case since Kobach won’t defend the law that was passed by the Kansas Legislature and has withstood multiple repeal attempts over the years in the Legislature including last session.
Not only may Kelly run into legal opposition from the attorney general in her effort to intervene in the case, the student’s group noted that her term expires next January, meaning that a new governor could withdraw from the case soon after taking office.
The group’s lawyers pointed to Virginia where the the outgoing attorney general joined the federal government in a consent judgment to invalidate Virginia’s tuition statute, only for his successor to withdraw that consent weeks later.
“That case illustrates that governmental litigation positions may change rapidly following changes in elected leadership,” the group says in its motion to intervene.
“Whoever occupies the governor’s office after January 2027 will owe no obligation to preserve the litigation choices of her predecessor, and
KanSAT’s members should not have to depend on the outcome of an election to preserve their interests,” the group’s lawyers said.
Further, the group said that while it may share the governor’s objective of defending the challenged provision of law and “welcomes her intervention,” it may not share her “identical interest.”
“Because this suit specifically targets Kansas students without lawful immigration status, those students hold a personal interest that no other party can adequately represent,” the group said.
KanSAT is described in the pleading as an unincorporated association whose members reside in and attend public colleges and universities in Kansas.
It is comprised of students without lawful immigration status who have lived in Kansas since childhood and rely on paying regular tuition rates to afford college in the state, according to the legal filing.
KanSAT promotes and advocates for ensuring “access to affordable higher education in Kansas, including maintaining regular tuition rates for certain students without lawful immigration status.”
KanSAT says in the filing that one of its members is seeking a bachelor’s in mechanical engineering at Wichita State University. He is now in this third year.
He has lived in Kansas for more than a decade and relied on paying regular tuition rates when he decided to attend Wichita State University, the legal filing said.
He has paid for his education through personal funds and private scholarships.
“If the challenged provision is enjoined, his per-semester tuition will increase from approximately $3,896.25 to $9,229.05,” the brief said.
“He cannot afford such an increase and will almost certainly drop out of his program if he is forced to pay out-of-state tuition.”
In its lawsuit, the Justice Department has said that “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.”
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.
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 applying the in-state tuition rates as called for under the regulation.
Last month, a 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.
