Delaware’s DEI Discount Goes to Court

The University of Delaware has recently discovered that charging full tuition is sometimes easier than getting cute with discounts. 

On October 1, the Department of Justice (DOJ) filed a lawsuit alleging that Delaware had “[violated] federal law by prioritizing the needs of illegal aliens over U.S. citizens in defiance of Congress’s commands.” More specifically, they accused the university of operating a tuition system that “grants in-state tuition to illegal aliens” who meet a number of residency and achievement criteria, all while charging U.S. citizens from outside Delaware the sticker price. Considering that the out-of-state rate (over $42,000) is nearly three times the in-state rate ($15,740), that’s a big deal. 

To buttress its case, the government cited 8 U.S.C. § 1623(a), which, according to the filing, “prohibits illegal aliens from being eligible to receive postsecondary education benefits based on residence within a state if such benefits are denied to U.S. citizens residing in other states.” In other words, if the University of Delaware wants to give prospective students without legal status tuition benefits, provided that they are “residents” of Delaware, then they better make sure that all U.S. citizens are eligible too. 

This lawsuit represents the continuation of an existing trend rather than the beginning of a new one. The Trump administration, as part of its broader crackdown on illegal immigration, is closely scrutinizing how universities determine eligibility for in-state tuition. To that end, the DOJ has filed more than two dozen lawsuits regarding in-state tuition benefits for illegal immigrants. Six states—Texas, Oklahoma, Kentucky, Kansas, Nebraska, and Illinois—have stopped granting illegal immigrants in-state privileges so far. But what makes the Delaware case unique is that all of the DOJ’s previous lawsuits have involved an entire state. This is the first time that the federal government thinks an individual university has gone rogue. 

That distinction matters. Because Delaware’s tuition scheme is a university regulation rather than a law, the federal government argues that the university also violated 8 U.S.C. § 1621(d), which requires state legislatures to pass an affirmative law in order for people without legal status to be eligible for certain state and local public benefits. So, for instance, if Oregon wanted illegal immigrants to be eligible for state housing benefits, it would have to pass a state law stating that clearly. Since there is no such law in Delaware, a win for the government would imply that the university’s lawyers really dropped the ball on this one. 

Whether the DOJ wins or loses this particular case, the lawsuit will become part of the University of Delaware’s storied history of social engineering. In 2007, the university required all 7,000 students living in campus dormitories to participate in programming where they were asked intrusive questions about their race, sexuality, and whether or not they had ever felt oppressed. Worse still, residence life staff noted any students who refused to answer, pushed back against the material, or gave the “wrong answer.” They later tried to convince these students that their very reasonable negative reactions to this rubbish constituted a grievous moral failing. 

Later, in 2021, Delaware hired 10 students to serve as “social justice peer educators.” The university’s own website framed this as critical “anti-racism” work that would create a “safe space” for students to “talk through their own identities.” Considering the university’s apparent preoccupation with students’ identities, it should be no surprise that Delaware was under federal investigation as early as March 2025—for a different DEI initiative than the one they were just sued for. 

Ultimately, the University of Delaware is learning the hard way that its pursuit of inclusivity cannot be limitless. Federal law may well not permit it to provide tuition benefits to illegal immigrants that it does not provide to all U.S. citizens. Should it lose this lawsuit, a discount for illegal immigrants could prove very expensive indeed.

Garion Frankel is editor at the James G. Martin Center for Academic Renewal.