The U.S. Department of Justice and Oklahoma’s Attorney General filed a joint motion in Muskogee’s Eastern District federal district court Aug. 5 to overturn a state law that authorizes in-state tuition for undocumented immigrants.
Federal law “prohibits aliens not lawfully present in the United States from getting instate tuition benefits that are denied to out-of-state U.S. citizens,” the complaint relates. “There are no exceptions.”
Yet Oklahoma “extends eligibility for in-state tuition benefits at state postsecondary educational institutions to individuals who are not lawfully present in the United States, while requiring U.S. citizens from other states to pay higher tuition rates.”
In 2007 the Oklahoma Legislature enacted House Bill 1804, which authorized the Oklahoma State Regents for Higher Education (OSRHE) to adopt a policy that allows students to be eligible for enrollment and resident tuition in any of the 25 state colleges and universities within the State System of Higher Education if the student )1 graduated from a high school in this state, and )2 resided in Oklahoma with a parent or legal guardian while attending an Oklahoma high school for at least two years prior to graduation.
If the student cannot present valid documentation of U.S. nationality or immigration status that permits study at a state college or university, the student is nevertheless eligible for resident tuition if the student also )1 provides a copy of “a true and correct application or petition filed with the U.S. Citizenship and Immigration Services (USCIS) to legalize the student’s immigration status,” or )2 files an affidavit of “intent to legalize his/her immigration status at the earliest opportunity the student is eligible to do so.”
Furthermore, under State Regents policy, an undocumented immigrant student who provides a copy of “a true and correct application or petition filed with USCIS” cannot be disqualified on the basis of his/her immigration status from any scholarship or financial aid provided by the state so long as the student lived in Oklahoma at the time of graduation from high school, has lived with a parent or legal guardian for two years prior to graduation from high school, and satisfies the college’s or university’s admission standards.
“This treatment of undocumented aliens stands in stark contrast” to how State Regents policy “treats U.S. citizens from outside Oklahoma and documented foreign nationals” who reside in this state, the federal complaint declares.
Documented foreign nationals on valid educational visas are eligible for in-state tuition “only if they become lawful permanent residents, have lived in Oklahoma for at least 12 consecutive months, and satisfy the domicile requirements set by OSRHE.”
Documented foreign nationals with full-time employment visas and their lawfully present dependents are eligible for out-of-state tuition waivers only so long as they remain “in fulltime working status.”
“This unequal treatment of Americans is squarely prohibited and preempted by federal law,” which expressly provides that “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence with a State … for any post-secondary education benefit” unless a citizen or national of the United States is eligible for that same benefit “without regard to whether the citizen or national is such a resident.”
In its complaint, the federal government claims that “by enabling the State Regents for Higher Education to adopt the challenged policy rather than enacting it by statute,” Oklahoma violated the requirement of federal immigration law that a state can provide eligibility for certain benefits to aliens who are not lawfully present in the United States “only through enactment of a State law that affirmatively provides for such eligibility.”
The petition points out that the federal government regulates immigration “under its constitutional and statutory authorities” and enforces immigration laws via its Executive Branch agencies, including the Justice Department, the Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Customs and Border Protection, and USCIS.
State law, Regents’ policy violate 2 executive orders President Trump issued an executive order on Feb. 19, 2025, “Ending Taxpayer Subsidization of Open Borders,” that ordered federal departments and agencies to “ensure to the maximum extent permitted by law that no taxpayer-funded benefits go to unqualified aliens.”
Another executive order Trump issued on April 28, “Protecting American Communities from Criminal Aliens,” ordered federal officials to ensure the “equal treatment of Americans” and to “take appropriate action to stop the enforcement of State and local laws, regulations, policies, and practices favoring aliens over any groups of American citizens that are unlawful, preempted by Federal law, or otherwise unenforceable…” The President’s orders “reflect Congress’s intent … to reduce incentives for illegal immigration by limiting access to certain public benefits.”
A “key objective” of Congressional Acts passed in 1996 was to “encourage self-sufficiency among immigrants, limit their dependence on public assistance, and prevent public benefits from serving as an incentive for unlawful immigration.” Congress declared that “aliens within the Nation’s borders” should “rely on their own capabilities and the resources of their families, their sponsors, and private organizations.”
Self-sufficiency “has been a basic principle of United States immigration law since this country’s earliest immigration statutes,” the federal petition states.
Also on Aug. 5, the Justice Department and the Oklahoma Attorney General’s office asked the federal court to enter a final judgment declaring that the Oklahoma statute which allows in-state tuition for undocumented immigrants, as well as the State Regents’ policy, “violate the Supremacy Clause” of the U.S. Constitution “and are therefore invalid.” They also requested a permanent injunction to prohibit the State of Oklahoma from enforcing the statute and the policy.
U.S. District Judge Ronald A. White referred the case on Aug. 6 to Magistrate Judge D. Edward Snow, and Snow recommended White grant the joint motion for entry of a consent judgment.
The federal complaint and the proposed consent judgment “mark the end of a longstanding exploitation of Oklahoma taxpayers, who for many years have subsidized colleges and universities as they provide unlawful benefits to illegal immigrants in the form of in-state tuition,” Attorney General Gentner Drummond said.
Two decades ago Texas was the first state to give in-state tuition to undocumented students who lived and attended high school in the Lone Star State. Subsequently 24 other states, including Oklahoma, adopted the same policy.