DOJ sues Kansas over in-state tuition for immigrants law. Kobach won’t defend it
The Department of Justice is suing Kansas over a 2004 law that allows some immigrants without legal status in the U.S. to receive in-state tuition at Kansas colleges and universities.
Rather than defend the statute, Attorney General Kris Kobach filed a joint motion siding with the DOJ in its interpretation that the law is invalid.
Gov. Laura Kelly, a Democrat, filed a subsequent motion hours later seeking to intervene and defend the law “in her capacity as the chief executive officer of the state,” according to a press release.
The legal challenge, filed on Wednesday in U.S. District Court in Topeka, comes months after a handful of Republican holdouts teamed up with Democrats to help block a piece of legislation that would have undone the in-state-tuition for undocumented immigrants who attended at least three years of high school in Kansas and earned a diploma here.
Republican leaders in the House and Senate failed to muster the votes to enact the bill into law over Kelly’s veto, and no override attempt was made.
“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,” the DOJ complaint says. “There are no exceptions. Yet Kansas has ignored this federal law for over two decades.”
The complaint argues that the Kansas law is preempted by federal statute, citing two 1996 laws that limit what public benefits undocumented immigrants can receive.
“Illegal aliens present in the United States are not eligible for postsecondary education benefits based on state residency unless those same benefits are available to all American citizens, regardless of their state of residence,” says the DOJ filing, which cited Kobach’s scathing February analysis that called the Kansas policy a violation of federal law.
Response to DOJ lawsuit
The only named defendant in the complaint is the state of Kansas. But the state’s top attorney has no intention of defending the law in court.
Shortly after the complaint was lodged on Wednesday, Kobach’s office filed a joint motion with the DOJ proposing a consent judgment, like the ones reached in several other GOP-controlled states that have repealed in-state tuition laws at the behest of the Trump administration.
“As I repeatedly told the Legislature, giving in-state tuition rates to illegal aliens clearly violates federal law and a lawsuit from the Department of Justice was inevitable,” Kobach said in a statement.
Kelly framed Kobach’s decision to sign onto the consent decree request as an abdication of duty.
“Today, the Attorney General entered a filing indicating his unwillingness to defend a law that has been in effect for over two decades,” Kelly said in a statement. “Since he is refusing to stand up for Kansas law, I have filed a motion to intervene to ensure all Kansas children have the opportunity to pursue an education, become contributing members of society, and a benefit to our economy.”
Micah Kubic, executive director of the American Civil Liberties Union of Kansas, characterized the coordinated legal effort as “a cruel misuse of our courts” and an “aggressive attempt to slam that door shut and punish young Kansans who dare to dream.”
Senate President Ty Masterson, an Andover Republican and governor hopeful, blamed Kelly for torpedoing the legislation that would have undone the reduced-tuition offering for qualified immigrants.
“This bill passed the Senate and would be in effect today were it not for the veto of our Democrat governor,” Masterson said. “When I’m governor, common sense laws like banning taxpayer funded benefits for illegal aliens will be signed into law immediately.”
Rep. Susan Ruiz, a Shawnee Democrat, said in a statement that the Legislature “spoke loud and clear” when Republicans couldn’t come up with the votes to override Kelly’s veto
“Our Governor vetoed the bill, and Republican leadership chose not to try to override,” Ruiz said. “I believe many legislators see the value of allowing undocumented young people the chance at fulfilling their dreams and enhancing our Kansas workforce.”
Twenty-two states and the District of Columbia currently offer undocumented immigrants in-state tuition, according to the Presidents’ Alliance on Higher Education and Immigration, a nonpartisan coalition of college and university leaders.
Federal judges in various states have delivered conflicting rulings on whether state laws that offer undocumented immigrants in-state tuition are preempted by federal law.
