On October 5, 2026, a federal judge in the Eastern District of Virginia dismissed the Department of Justice (DOJ)’s lawsuit challenging two Virginia laws that the Department claimed impermissibly provided undocumented students with in-state tuition.
The DOJ challenged two Virginia programs, “Domicile Pathway” and “Tuition Equity Pathway,” which provide in-state tuition rates at Virginia’s state colleges. The DOJ argues that the programs are preempted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). DOJ had argued that IIRIRA restricts states from making preferential postsecondary education benefits, such as in-state tuition, available to undocumented students, unless a U.S. citizen or national is eligible for such a benefit regardless of whether they are a resident of that state.
In his memorandum opinion granting the Commonwealth of Virginia’s motion for summary judgment, Judge Robert E. Payne upheld the programs, explaining that neither can be preempted by IIRIRA because the Domicile Pathway does not in fact provide tuition benefits to undocumented students, and because the Tuition Equity Pathway is not based on residence. Alternatively, Judge Payne notes that the Tuition Equity Pathway is not preempted because non-resident citizens also receive in-state tuition. The DOJ is expected to appeal.
Read the Opinion here. Read our previous post about the lawsuit here.