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By Hola Nebraska
The law, in effect since 2006, allowed certain undocumented students who graduated from Nebraska high schools to pay the resident tuition rate at public colleges and universities.
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A federal judge struck down a Nebraska law that allowed some undocumented students to pay lower tuition at the state’s public colleges and universities.
Tuition is the price students pay to take classes. At public universities, that cost is often different for resident and nonresident students. Students who qualify as state residents usually pay less than students who come from another state or do not meet residency rules.
The decision was issued Wednesday by U.S. District Judge Brian Buescher, who found that the state law was preempted by federal law and barred its enforcement.
The law had been in effect since 2006. Under that law, certain noncitizen students could pay the resident rate if they had graduated from a Nebraska high school, had lived in the state for at least three years and met other requirements.
The ruling eliminates a path that, for nearly two decades, allowed some students educated in Nebraska schools to pay a lower college cost at the state’s public institutions.
The resident tuition rate can be much lower than the nonresident rate
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The difference between resident tuition and nonresident tuition can amount to thousands of dollars a year.
At the University of Nebraska-Lincoln, for example, estimated tuition and fees for undergraduate students in 2025-2026 are $11,100 for residents and $30,330 for nonresidents.
The law that was struck down allowed certain undocumented students to be treated as residents for tuition purposes, as long as they met Nebraska’s requirements.
That difference is at the center of the case. The U.S. Department of Justice and the state of Nebraska argued that the law allowed an educational benefit for students without legal status that was not available under the same conditions to U.S. citizens from other states.
The Justice Department sued Nebraska in April
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The U.S. Department of Justice sued the state of Nebraska in April to have the law declared invalid.
The lawsuit also challenged other state statutes that allowed scholarship programs for undocumented students.
Both the Justice Department and the state argued that Nebraska’s law conflicted with a federal law on postsecondary education benefits for people who are not lawfully present in the United States.
That federal law states, in part, that a person without lawful presence in the country cannot receive a postsecondary education benefit based on residence within a state unless U.S. citizens can also receive that benefit.
In his 54-page opinion, Buescher wrote that Nebraska statutes establishing residency requirements for people without legal status to receive resident tuition violated federal law.
The law applied to students who graduated from Nebraska high schools
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The law that was struck down did not apply to all undocumented students equally.
To qualify, students had to have graduated from a Nebraska high school and lived in the state for at least three years, along with meeting other requirements established by the law.
The measure was aimed at students who had built part of their educational lives in Nebraska, even if they did not have legal immigration status.
Under the federal order, the state can no longer use that path to allow those students to pay the lower rate reserved for residents.
The ruling also affects statutes related to scholarship programs for undocumented students that were challenged by the Justice Department.
Organizations tried to take part in the case
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Two organizations sought to intervene as parties in the case: True Potential and Orel Alliance.
True Potential provides scholarships to recipients of the Deferred Action for Childhood Arrivals program, known as DACA. Orel Alliance works with Ukrainian immigrants and refugees.
Buescher rejected the request to intervene, finding that neither organization had legal standing to participate as a party in the case.
The organizations also asked to pause the process while a possible appeal before the U.S. Court of Appeals for the 8th Circuit was pending.
The judge rejected that request. In his decision, he said keeping the challenged statutes in effect through another academic year would be contrary to the public interest.
Nebraska’s attorney general did not defend the state law
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After the decision, Nebraska Attorney General Mike Hilgers issued a statement saying he was grateful for the outcome.
Hilgers said federal law does not allow benefits to be extended to people without legal status if those benefits are not available to U.S. citizens.
In the case, Hilgers did not defend the state law and accepted a proposed agreement with the federal government to invalidate it.
Outside parties had argued in amicus briefs that the lawsuit was collusive because the attorney general chose not to defend the law and entered into an agreement with the federal government.
Buescher rejected that argument. The judge said there was a case or controversy because the state law remained in effect and the state had not taken action to grant the remedy requested by the United States: invalidating the challenged statutes.
The ruling comes before the next academic year
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The Nebraska decision comes amid a legal push by the Justice Department against state laws that allow resident tuition rates for some undocumented students.
In Nebraska, the ruling invalidates a state policy approved in 2006 and maintained for years at the state’s public colleges and universities.
The judge noted that pausing the case while a possible appeal moved forward would have allowed the challenged statutes to remain in effect at least through the next academic year.
The decision could change the cost of attending public institutions for students who previously qualified under the now-struck-down state requirements.
The federal order bars enforcement of the resident tuition law
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Buescher’s order bars enforcement of the law that allowed certain undocumented students to pay resident tuition in Nebraska.
The judge also made some editorial changes to the proposed consent agreement between the state and the federal government. According to the ruling, those changes were minor wording adjustments.
The organizations that sought to intervene in the case could appeal the denial of intervention to the 8th Circuit.
The law that lowered college costs for some undocumented students, in effect since 2006, was blocked by the federal decision issued Wednesday.
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