In Delaware, the state line beats the border

“All animals are equal, but some animals are more equal than others,” George Orwell wrote in Animal Farm. On Oct. 1, the Justice Department sued the University of Delaware and its board of trustees over a tuition policy. According to the complaint, an American citizen from out of state pays about $42,470 a year. A qualifying student who is in the country illegally pays $15,740, the Delaware resident rate.Federal law bars that arrangement, DOJ argues, and Assistant Attorney General Brett Shumate calls it “a simple matter of federal law.” Congress wrote the rule in 1996: a state can’t give unlawfully present people residency-based college benefits unless citizens get the same benefits regardless of where they live. Delaware, DOJ alleges, skipped the reading assignment.I’m a father of three sons, two still in college, and I’ve spent 30 years reading fine print for a living. As an expert witness on fiduciary duty since 2015, I ask the same first question in every case: who holds the money, and who answers for it? A board of trustees that sets prices this unevenly should expect questions. This fine print needs to be explained. The gap is $26,730 a year, or $106,920 over four years, on tuition alone. Delaware taxpayers appropriated $145 million to the university in fiscal 2025. That’s the logic of the in-state rate: residents’ taxes help fund the school, so residents get a break. Extending the break to people here illegally while charging a citizen from out of state 2.7 times as much turns that logic upside down.The eligibility rules read like a residency test with extra paperwork: three years at a Delaware high school, a diploma or GED certificate, living with a parent or guardian, enrolling within 18 months, and evidence of seeking citizenship or permanent residency. The complaint says the trustees created the policy under the school’s charter. Federal law lets a state extend public benefits to people here unlawfully only through an enacted state law. DOJ says a trustees’ guideline isn’t one.Courts have noticed. Texas ended its program in June 2025 after the DOJ sued, and the 5th Circuit refused this July to revive it, ruling 2-1 that federal law bars residency-based benefits for people here illegally unless citizens get them regardless of residency. A federal judge in Illinois blocked that state’s tuition and aid laws the same month. Oklahoma, Kentucky, Kansas, and Nebraska have also ended theirs. California, where I live, has offered the discount since 2001 and got sued in November. Delaware is the DOJ’s 26th case.Defenders have a real argument. In March, U.S. District Judge Katherine Menendez dismissed the DOJ’s challenge to Minnesota’s law because any student who graduates from a Minnesota high school qualifies, including out-of-state citizens, so residency doesn’t decide eligibility. I coached youth sports for years, and kids don’t pick their parents’ decisions. I have sympathy for those students. The statute doesn’t ask for it.Delaware’s policy differs, DOJ says. It sits inside the school’s residency guidelines, and a citizen who finished high school in Pennsylvania pays $42,470 regardless of grade point average. If Delaware can show its program is open to citizens and noncitizens alike, as Minnesota’s was, it can say so in court. Delaware sits in the 3rd Circuit, so the 5th Circuit’s ruling doesn’t bind this court, and the judge gets to read the statute fresh.OPINION: WASHINGTON ISN’T BROKEN. IT’S JUST RUN BY INSIDERS WHO DON’T CARE ABOUT YOUThree fixes need no new bureaucracy. If Delaware wants to subsidize these students, lawmakers should vote on it, attach a price tag, and own the result. California at least used a statute and a roll call, so voters know whom to thank. Next, the university should publish how many students use the discount and what it costs. A school that takes $145 million from taxpayers can produce a spreadsheet. Finally, Congress should close the high-school-graduation workaround that saved Minnesota, so a rule written in 1996 doesn’t hinge on whose lawyer drafts the cleverest eligibility clause.Epictetus opens the Enchiridion by sorting the world into what’s up to us and what isn’t. Who gets a tuition break is up to us. We should decide it in an open vote with the cost on the table, since a trustees’ guideline nobody reads makes a poor ballot box. Delaware calls itself the First State. It can be the first to explain itself to taxpayers.Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a Bachelor of Science in criminal justice from Northeastern University and has completed postgraduate studies at UCLA, the University of Pennsylvania, and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.