Facing lawsuit from DOJ, Nebraska looks to end in-state tuition for undocumented students

The Department of Justice filed a civil lawsuit against Nebraska on Tuesday, alleging that offering in-state tuition benefits and scholarships for undocumented students is unlawful.

Immediately after the lawsuit was filed, officials with both the federal and state governments filed a joint proposed consent decree asking a judge to find various parts of Nebraska state statute unlawful. In a statement, Gov. Pillen called the litigation “the latest example of the tremendous partnership between the State of Nebraska and the Trump Administration” and said Nebraskans “expect that illegal aliens won’t get the benefit of in-state tuition and financial aid.”

The main statute at issue dictates which students are eligible for in-state tuition at Nebraska’s public colleges and universities. Under current state law, which was passed in 2006, non-citizens are eligible for in-state tuition if they graduated from a Nebraska high school and resided in the state for at least three years, among other requirements.

In its complaint, the DOJ claimed the policy is unconstitutional because non-citizen students pay less in tuition than an out-of-state citizen. In a statement, Nebraska Attorney General Mike Hilgers said the statute “unlawfully extended benefits to illegal immigrants which were not available to American citizens.”

The DOJ also challenged various Legislature-enacted scholarship programs that are open to undocumented students, including the Nebraska Opportunity Grant, the Access College Early Scholarship Program Act and the Door to College Scholarship Act.

Federal law states that undocumented students “shall not be eligible on the basis of residence within a State” unless “a citizen or national is eligible for such a benefit without regard to whether the citizen or national is such a resident.” The DOJ argued that this federal law preempts Nebraska’s state law.

Several similar lawsuits have been brought by the DOJ since mid-2025. Judges in Texas, Kentucky and Oklahoma have ruled in favor of the DOJ. Lawsuits in Illinois, Virginia and California are pending. In Minnesota, a federal judge dismissed a similar DOJ lawsuit last month.

The Nebraska case has been assigned to U.S. District Court Judge Brian Buescher, the only Republican appointee on Nebraska’s federal bench. Buescher was appointed during President Donald Trump’s first term.

Buescher will still have to decide whether or not to approve the consent decree.