United States v. Beshear

United States v. Beshear

What’s at stake

Whether undocumented immigrants who graduate from Kentucky high schools have access to the same affordable college education as their classmates.

Summary 

Like over two dozen other state laws, a Kentucky regulation has long allowed undocumented immigrants who graduate local high schools to attend public college at the same in-state tuition rates as their peers. Issued in 2002, the regulation was designed to comply with two federal laws that restrict how states may offer benefits to undocumented immigrants. For decades, thousands of students have relied on it to access an affordable college education.

In 2025, the U.S. Department of Justice decided that such tuition equity laws violate the two federal laws they were designed to satisfy. On June 17, 2025, the DOJ sued to strike down the regulation. Weeks later, the Kentucky agency that passed the regulation agreed to join the DOJ’s request for a “consent decree” that would invalidate the regulation without going through the normal process to repeal it.

Public Justice filed an amicus brief to defend the Kentucky regulation. We argue that not only is the regulation entirely valid and consistent with federal law, but that the government and state agency’s joint effort to erase it through the courts raises a more fundamental problem:  Under the Constitution, two co-parties may not use a collusive lawsuit to invalidate a democratically enacted law, especially when they do not give the affected people any chance to defend it.

Core legal problem

To keep federal courts within their proper role in our democratic system, and to make sure they hear both sides of the important issues they decide, the Constitution limits their jurisdiction to “cases” and “controversies”—that is, real live disputes between “adverse” litigants. A court may not strike down a democratically enacted law based only on a one-sided request by two parties who both want the same thing. Collusive suits like this one violate that principle and undermine our democracy. And in this case, the government’s efforts to end tuition equity threaten to make college unaffordable for thousands of students.

Update
On November 19, 2025, the court granted an association of undocumented students’ request to intervene in the case to defend the regulation.