Federal restrictions could hamper Nebraska's effort to eliminate in-state tuition for undocumented students

After a legislative attempt to overturn Nebraska laws granting undocumented students access to in-state tuition failed, the state and federal governments turned to another avenue: The courts.

Less than a week after the 2025-26 Legislative session ended, the U.S. Department of Justice filed a lawsuit against the State of Nebraska seeking to invalidate the state laws, which allow undocumented students who graduated from a Nebraska high school and lived in the state for years to pay in-state tuition rates at state colleges and universities. Those laws were passed in 2006 with a bipartisan majority.

Instead of fighting the lawsuit, the state immediately filed a joint proposed consent decree with the federal government in which the parties outlined their agreement on all issues.

They agreed that the court has jurisdiction to declare the statutes unconstitutional. They agreed that the statutes are unconstitutional because they violate the Supremacy Clause of the U.S. Constitution. And they jointly requested that a permanent injunction be issued to prevent in-state tuition benefits from being extended to non-citizens at any point in the state’s future.

In a press release issued by the Department of Justice after the lawsuit was filed, Nebraska Gov. Jim Pillen lauded the proposed agreement as “the latest example of the tremendous partnership between the State of Nebraska and the Trump Administration.”

Attorney Alex Arkfeld, on behalf of Nebraska State Sen. Dunixi Guereca, filed a friend-of-the-court brief arguing that the collusive, or friendly, nature of the lawsuit meant that the court lacked jurisdiction. Collusive lawsuits with no “case or controversy,” meaning the parties agree on all issues, are generally barred in federal court.

“The parties to this action have openly acknowledged their complete alignment, describing this lawsuit as a tremendous partnership and combined effort to reach a mutually desired outcome,” Arkfeld wrote. “Consequently, there is no case or controversy, and this Court lacks jurisdiction to enter the consent judgment.”

It will be up to U.S. District Court Judge Brian Buescher to decide whether or not he has jurisdiction. He ordered both sides to submit legal briefs by Friday outlining their arguments – including why he has jurisdiction to decide the case given the parties’ agreement on the issues. Buescher said the briefs could be filed jointly or separately.

Nebraska Attorney General Mike Hilgers, who is representing the state, declined to comment on the legal strategy or whether the state will brief the issues jointly with the federal government.

Paul McGreal, a constitutional law professor at the Creighton University School of Law, said statements from Hilgers and Pillen could hamper arguments against collusion. McGreal said the use of the term “partnership” by Pillen is “pretty damning.”

“In the law, a partnership is two or more people agreeing to engage in a common business,” McGreal said. “Partners are not adverse to each other. They’re seeking a single aim or a single goal. And the fact that the governor came out and said, ‘me and the Attorney General are acting in partnership with the [federal] government,’ seems to – I mean, I’m not gonna say that conclusively shows it’s collusive, but it is powerful evidence that the parties were aligned.”

McGreal emphasized that there’s “nothing nefarious” or unethical about partnerships and cooperation between the state and federal governments. But if the state and federal government partnered to bring the lawsuit, it could close off a federal court’s ability to decide the case.

The collusion argument has been raised in at least one other case. Cases challenging in-state tuition provisions for undocumented students in Oklahoma and Texas followed a similar path to Nebraska at the outset: A complaint was filed by the federal government, and a joint consent decree immediately followed. In Texas, a judge approved the consent decree on the same day the lawsuit was filed. In Oklahoma, it took two days.

In those cases, judges permanently halted the enforcement of state laws providing in-state tuition benefits for undocumented students, and both cases are now pending in appellate courts after people impacted by the decision intervened. In Texas, the intervenors have argued that the federal government colluded with Texas officials to bring the suit.

Unlike the judges in Texas and Oklahoma, Buescher ordered a full briefing of the issues. In addition to asking attorneys to brief him on the suit’s adherence to the case or controversy requirement, he also ordered briefing on the “substantive legal issues” in the case and whether he needs to conduct an independent analysis of the statute’s constitutionality.