Following a U.S. Department of Justice lawsuit, Kentucky Attorney General Russell Coleman told the Council for Postsecondary Education it should end its policy of giving in-state tuition to undocumented students who graduate from Kentucky high schools.
The justice department alleges Kentucky is violating federal law by allowing high school graduates without legal status to get in-state tuition for state colleges and universities because the same benefit isn’t provided to every U.S. citizen. Coleman, a Republican, agreed Thursday, saying the council doesn’t have the authority to “grant residency status” and must follow the priorities set out by Congress.
“Federal law is clear — illegal immigrants are not eligible for special educational benefits that are kept from American citizens. If the [council] and Governor Beshear want to continue ignoring federal law, I fully expect them to lose in court,” Coleman said in a statement. “We hope the CPE will take our advice, withdraw their unlawful policy and refocus on helping Kentucky students reach for their full potential.”
A spokesperson told Kentucky Public Radio that the Council for Postsecondary Education “is taking Attorney General Coleman’s opinion under advisement as it works to resolve this issue.” Although Democratic Gov. Andy Beshear was named in the lawsuit, the governor’s office has said that he has no control over this policy and shouldn’t be named as a party in the lawsuit.
The council is run independently by 13 council members whom the governor appoints and it is administratively attached to the governor’s office.
The DOJ filed a similar lawsuit against Texas in June, with the state reversing course within hours, coming to an agreement to end in-state tuition for undocumented immigrants. The department also filed a complaint against Minnesota for its laws providing reduced or free tuition to students without documented status.
According to the National Immigration Law Center, 23 states besides Texas and Kentucky provided in-state tuition to students who graduated from high schools in the state, regardless of immigration status, as of June, 2024.
According to the law center, federal law does not prohibit states from providing such tuition — rather, it says the state must provide the same benefits to other U.S. citizens "in the same circumstances." It has yet to be determined whether Kentucky’s regulations meet that criteria.
Earlier this year, President Donald Trump signed executive orders to ensure that “no taxpayer-funded benefits go to unqualified aliens.” Trump claimed that such benefits are “siphoning dollars and essential services from American citizens.” This latest round of lawsuits from the Trump administration appears to be a part of that crusade.
The Kentucky regulation creates a pathway for those who don’t have legal status, but live and attend high school in Kentucky to gain access to in-state tuition. It also requires people who hold refugee status, permanent residency visas or certain nonimmigrant visas to establish residency if they want in-state tuition. It’s a policy that has been in place for at least 15 years, according to Beshear’s office.
The regulation doesn’t allow certain visa holders to get in-state tuition, for example people holding temporary travel visas for business or pleasure or those holding student visas. It also separately defines a list of circumstances under which U.S. citizens can establish residency, which includes the location of a person’s high school and numerous other possible criteria which can be used to determine residency.
The DOJ argued that the regulation conflicts with federal law that prohibits public colleges and universities from providing benefits to people who are living in the U.S. without legal status that are not also offered to U.S. citizens. In the filing, they also argue that Kentucky statutes don’t explicitly require tuition be granted to undocumented immigrants — and that federal laws would preempt them if they did.
It’s an argument which Coleman agreed with in his letter, calling his analysis “straightforward,” pointing to the more complicated residency requirements set out for citizens while undocumented students must only show they graduated from a Kentucky high school.
“Yet citizens or nationals must have their residency determined according to the detailed criteria set out elsewhere in the regulation before receiving the same benefit,” Coleman said. “Simply put, the Council’s regulation provides undocumented aliens a benefit unavailable to students lawfully present in other States.”
In-state undergraduate tuition is a significant boon to making college more affordable; at the University of Kentucky, for example, in-state tuition knocked off $20,638 from tuition fees in the 2024-25 school year.
A spokesperson for the attorney general’s office clarified that the letter is not a formal opinion by the state’s chief law officer — which they typically don’t issue amidst pending litigation — and was offered as legal advice to the council.
State government and politics reporting is supported in part by the Corporation for Public Broadcasting.
