Unauthorized Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis
Released: 2016-01-11T00:00:00

Summary:
The existence of a sizable population of "DREAMers" in the United States has prompted questions about unauthorized aliens' eligibility for admission to public institutions of higher education, in-state tuition, and financial aid. The term DREAMer is widely used to describe aliens who were brought to the United States as children and raised here but lack legal immigration status. As children, DREAMers are entitled to public elementary and secondary education as a result of the Supreme Court's 1982 decision in Plyler v. Doe. There, the Court struck down a Texas statute that prohibited the use of state funds to provide elementary and secondary education to children who were not "legally admitted" to the United States because the state distinguished between these children and other children without a "substantial" goal, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
Once DREAMers complete high school, however, they may have less access to public higher education. Plyler's holding was limited to elementary and secondary education, and the Court's focus on the young age of those whom Texas denied a "basic education" has generally been taken to mean that measures denying unauthorized aliens access to higher education may be subject to less scrutiny than the Texas statute was. Thus, several states have adopted laws or practices barring the enrollment of unauthorized aliens at public institutions of higher education. In addition, Congress has enacted two statutes that restrict unauthorized aliens' eligibility for "public benefits," a term which has generally been construed to encompass in-state tuition and financial aid. The first of these statutes, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA, P.L. 104-193), bars the provision of "state and local public benefits" to aliens who are "not lawfully present in the United States" unless the state enacts legislation that "affirmatively provides" for their eligibility. The second, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA, P.L. 104-208), bars states from providing "postsecondary education benefits" to aliens who are "not lawfully present" based on their residence in the state unless all U.S. citizens or nationals are eligible for such benefits, regardless of their residence.
State measures that variously deny or grant access to public higher education, in-state tuition, or financial aid have been challenged on the grounds that they violate the Equal Protection Clause, like the Texas measure at issue in Plyler. They have also been alleged to violate the Supremacy Clause of the U.S. Constitution, which establishes that federal law is "the supreme Law of the Land" and may preempt any incompatible provisions of state law. Based on the case law to date, it would appear that states do not, as a general matter, violate the Equal Protection or Supremacy Clauses by excluding unauthorized aliens from public institutions of higher education. On the other hand, access to public higher education has generally not been construed as a public benefit for purposes of PRWORA, such that it may only be provided to "unlawfully present" aliens if a state enacts legislation that affirmatively provides for their eligibility.
In-state tuition and financial aid have generally been seen as public benefits for purposes of PRWORA. However, courts have rejected the view that state statutes providing in-state tuition to unauthorized aliens are preempted unless they expressly refer to PRWORA, or to unauthorized aliens being eligible. Courts have also found that IIRIRA does not bar states from providing in-state tuition to unauthorized aliens who complete a certain number of years of high school in the state and satisfy other criteria. In one case, the court reached this conclusion because it construed IIRIRA as barring only the provision of in-state tuition based on residence in the state, not based on other factors. In another case, the court found that IIRIRA did not create a private right of action such that individuals may sue to enforce alleged violations.

paragraphs: T he existence of a sizable population of "DREAMers" in the United States has prompted questions about unauthorized aliens' eligibility for admission to public institutions of higher education, in-state tuition, and financial aid. The term DREAMer is widely used to describe aliens who were brought to the United States as children and raised here but lack legal immigration status. As children, DREAMers are entitled to public elementary and secondary education as a result of the Supreme Court's 1982 decision in Plyler v. Doe . There, the Court struck down a Texas statute that prohibited the use of state funds to provide elementary and secondary education to children who were not "legally admitted" to the United States because the state distinguished between these children and other children without a "substantial" goal, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Plyler Court did not, however, purport to address unauthorized aliens' access to higher education, and several states subsequently adopted laws or practices barring their enrollment at public institutions of higher education. Congress has also restricted unauthorized aliens' eligibility for "public benefits," a term which has generally been construed to include in-state tuition and financial aid.
Emphasizing DREAMers' ties to the United States, including their attendance at public elementary and secondary schools, some would permit them to remain in the United States legally, or expand their access to higher education. For example, in every Congress from the 109 th to 113 th , Members have introduced, either as separate bills or parts of other measures, versions of the Development, Relief, and Education for Alien Minors (DREAM) Act—from which DREAMers take their name—that would create a pathway to citizenship for them, as well as remove certain restrictions on states' ability to grant in-state tuition to unauthorized aliens. No such legislation has been enacted by Congress to date. However, several states have passed their own DREAM Acts, which permit some DREAMers to receive in-state tuition or, less commonly, state financial aid (but cannot provide a pathway to citizenship because Congress has exclusive power over naturalization). The Obama Administration also began granting deferred action—a type of relief from removal—to qualifying DREAMers in 2012. Because aliens granted deferred action are generally viewed as "lawfully present" for purposes of federal immigration law, they could potentially be deemed eligible for certain educational benefits that are denied to aliens who are "unlawfully present." However, not all aliens commonly known as DREAMers have been granted deferred action, and even those who have been granted deferred action are considered to be lawfully present only while they are in deferred action or other similar status.
Others, however, emphasize DREAMers' presence in the United States in violation of federal immigration law, and seek to ensure that public benefits are made available only to U.S. citizens, lawful permanent residents (LPRs), and nonimmigrants with legal status. Several states have, for example, adopted measures barring unauthorized aliens from attending public institutions of higher education. Certain states have also reiterated, or sought to expand upon, existing federal restrictions upon unauthorized aliens' receipt of public benefits in order to ensure that they do not receive in-state tuition or state financial aid.
This report surveys key legal issues pertaining to unauthorized alien students' access to higher education, in-state tuition, and financial aid. 
subsections: section_title: Basic Legal Principles
paragraphs: State measures that would deny or provide access to public institutions of higher education, in-state tuition, and financial aid to unauthorized aliens have been challenged on various grounds. While these grounds can vary depending upon the specific statute or practice in question, the grounds most commonly asserted appear to be violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution. Thus, these provisions are the focus of discussion in this report, and the following paragraphs provide an overview of the basic principles implicated in discussions of equal protection and preemption. 
subsections: section_title: Equal Protection
paragraphs: The Equal Protection Clause of the Fourteenth Amendment bars states from "deny[ing] to any person within [their] jurisdiction the equal protection of the laws." Aliens have been found to be encompassed by the Fourteenth Amendment's usage of "person." As a result, measures that would treat aliens differently than citizens may be subject to challenge on equal protection grounds. The level of scrutiny applied by the courts in reviewing such measures frequently determines whether the measure is upheld or struck down. With "rational basis review," the challenged measure will generally be upheld if it is a rational means of promoting a legitimate government objective. The measure is "presumed constitutional," and those challenging the law have the burden of negating all possible rational justifications for the classification. In contrast, with "strict scrutiny," the challenged measure will be upheld only if the government can demonstrate that the measure is necessary to achieve a compelling interest and is narrowly tailored for that purpose. Courts have also applied other tests, falling between rational basis review and strict scrutiny, in some cases due to the persons or rights affected by the measure. 
The level of scrutiny applied to measures that classify on the basis of alienage depends, in part, on whether the measure is federal, or state or local. Because Congress's plenary power over immigration permits it to enact measures as to aliens that would be unconstitutional if applied to citizens, federal classifications based on alienage are subject to rational basis review, and have generally been upheld. For example, in its 1976 decision in Mathews v. Diaz , the Supreme Court upheld a federal law that barred LPRs who had not resided in the United States for five years from enrolling in Medicare Part B, because it viewed the measure as a valid exercise of the federal government's authority to regulate the entry and residence of aliens, not as "irrational." State and local measures, in contrast, have generally been subject to strict scrutiny, unless (1) the restrictions involve "political and governmental functions," or (2) Congress has "by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass." However, it is important to note that the Supreme Court decisions applying strict scrutiny to state or local measures that treated aliens differently than citizens all involved lawful permanent resident aliens (LPRs), and the Court in Plyler expressly declined to apply strict scrutiny to the Texas statute because "undocumented status is not irrelevant to any proper legislative goal." Instead, the Plyler Court applied a level of scrutiny that has since come to be characterized as "intermediate scrutiny," requiring the state to show that the challenged measure furthered a "substantial" goal. Some have suggested, however, that the heightened level of scrutiny given to the Texas measure in Plyler reflects the facts and circumstances of the case—which involved a law that a majority of the Court viewed as depriving "minor children" of a "basic education"—and is not generally applicable to classifications involving unauthorized aliens. 
Neither education, nor receipt of public benefits, has been recognized as a fundamental right for purposes of equal protection, such that its denial would result in the application of strict scrutiny. The Plyler Court subjected the denial of access to public elementary and secondary education to intermediate scrutiny. However, as previously noted, this degree of scrutiny may reflect the facts and circumstances of the case. Similarly, receipt of public benefits has generally been seen to fall within the "area of economics and social welfare," and classifications affecting such interests, standing alone (i.e., not involving a suspect classification of persons), are generally subject to rational basis review.
section_title: Preemption
paragraphs: The doctrine of preemption, in turn, derives from the Supremacy Clause of the U.S. Constitution, which establishes that federal law, treaties, and the Constitution itself are "the supreme Law of the Land, ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." Thus, one essential aspect of the federal structure of government is that states can be precluded from taking actions that would otherwise be within their authority if federal law would be thwarted thereby. 
Because the Constitution entrusts Congress with the power to regulate immigration, state or local measures that purport to regulate immigration—by determining which aliens may enter or remain in the United States, or the terms of their continued presence—are, per se, preempted, regardless of whether Congress has legislated on the matter. Other measures, which affect aliens, but do not constitute regulation of immigration, could also be found to be preempted, depending upon the scope of any congressional enactments. Specifically, federal statutes may preempt state and local measures in one of three ways: 
1. the statute expressly indicates its preemptive intent ( express preemption ); 2. a court concludes that Congress intended to occupy the regulatory field, thereby implicitly precluding state or local action in that area ( field preemption ); or 3. state or local action directly conflicts with or otherwise frustrates the purpose of the federal scheme ( conflict preemption ). 
State actions in fields that have traditionally been subject to state regulation are sometimes said to be accorded a presumption against preemption whenever Congress legislates in the field. Education has historically been seen as a local, not a federal, matter. However, a presumption against preemption does not appear to have been applied, to date, in any case involving unauthorized aliens' access to higher education, in-state tuition, or financial aid. To the contrary, at least one court has questioned whether a presumption against preemption continues to apply in the immigration context.
Two federal statutes are generally noted in discussions of whether state measures regarding unauthorized aliens' access to public higher education, in-state tuition, and state financial aid are preempted. The first of these, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), enacted in August 1996, defines state public benefit to mean 
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State ... or by appropriated funds of a State ...; and (B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State ... or by appropriated funds of a State, 
and generally bars states from providing such benefits to aliens who are "not lawfully present in the United States" unless they enact legislation that "affirmatively provides" for such aliens' eligibility. PRWORA also generally bars U.S. government agencies from providing federal public benefits —which are defined in the same way as state public benefits —to unauthorized and other aliens who are not "qualified aliens" for purposes of PRWORA. The second statute, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, enacted a little over a month after PRWORA, bars states from providing "postsecondary education benefits" to aliens who are not "lawfully present" based on their residence in the state unless other U.S. citizens or nationals are eligible for such benefits, regardless of their state of residence, but does not define benefit . IIRIRA has been described as "narrowing" states' authority under PRWORA, but this early characterization of IIRIRA may have been undermined by subsequent interpretations of IIRIRA, discussed below.
section_title: State Restrictions on Access
paragraphs: State measures that would deny unauthorized aliens access to public institutions of higher education and in-state tuition have been challenged by plaintiffs and commentators on the grounds that they violate the Equal Protection or Supremacy Clauses. However, the limited case law to date suggests that restrictions on access to higher education do not, as a general matter, deprive unauthorized aliens of equal protection. Such restrictions have also not been seen as preempted by PRWORA as a general matter, although specific measures could potentially be found to be preempted, or otherwise impermissible, on other grounds. Restrictions on access to in-state tuition have also been seen as permissible. In-state tuition has generally been considered a public benefit, and PRWORA and IIRIRA restrict the circumstances in which states may provide public benefits to unauthorized aliens. PRWORA has also been construed to restrict unauthorized aliens' access to federal and state financial aid.
subsections: section_title: Public Higher Education
paragraphs: To date, it does not appear that any state measure barring unauthorized aliens from public institutions of higher education has been found to be impermissible on equal protection grounds. The Supreme Court's 1982 decision in Plyler v. Doe has generally been taken to mean that the Equal Protection Clause precludes states from denying unauthorized alien children access to public elementary and secondary schools. However, Plyler did not purport to address access to higher education, and several aspects of the Court's 5-4 decision in Plyler suggest that its applicability in the context of higher education may be limited. In particular, the Court noted both the young age—and the lack of culpability —of those whom Texas would have deprived of the "basic education" needed for democratic self-governance and economic self-sufficiency in determining that the Texas measure warranted heightened scrutiny. This heightened scrutiny, in turn, resulted in the measure being invalidated because none of the goals proffered by the state—which included protecting itself from an "influx of illegal immigrants" and preserving state funds for use in educating students who are likely to remain within the state—was "substantial." Some commentators have suggested that state laws barring unauthorized aliens from public institutions of higher education should be subject to a similar level of scrutiny because higher education currently plays the same socioeconomic role that primary and secondary education played in the 1970s and 1980s. However, no court appears to have adopted this view, and contrary arguments could be made. For example, one could argue that college students are adults, who have the ability to conform their conduct to "societal norms," and that lack of access to higher education does not result in the "enduring disability" of illiteracy noted by the Plyler Court. Perhaps because of this uncertainty as to the standard of scrutiny that would be applied, post- Plyler challenges to state measures denying unauthorized aliens access to public institutions of higher education have generally been brought on grounds other than equal protection, usually preemption, as discussed below.
Federal district courts have found preemption in three cases, although none of these cases should be construed to mean that state restrictions on access to public institutions of higher education are preempted as a general matter. To the contrary, as explained below, two cases found preemption based on the language of the specific state statute at issue, while the court in the third relied upon an interpretation of PRWORA that has not been widely adopted. In the first case, Hispanic Interest Coalition of Alabama v. Bentley , a federal district court found that provisions of Alabama's H.B. 56 that bar "any alien who is not lawfully present in the United States" from enrolling in or attending "any public postsecondary education institution in this state" were per se preempted because the state attempted to regulate immigration by relying upon its own definition of who is lawfully present, instead of the federal one. However, an appellate court subsequently vacated the injunction barring enforcement of these provisions after they were amended to remove the language the district court had found imposed the state's definition, rather than the federal definition, of who is lawfully present. Similarly, in the second case, Montana Immigrant Justice Alliance v. Bullock , a state court found that a Montana law which, among other things, barred "illegal alien[s]" from receiving "state services," including qualification as a student at state institutions of higher education, was preempted because it relied upon classifications of aliens not used in federal law and upon state officials' determinations of aliens' status. 
In the third case, League of United Latin American Citizens [LULAC] v. Wilson , a federal district court found that the provisions of California's Proposition 187 barring persons who are "not authorized under federal law to be present in the United States" from admission to public institutions of higher education were preempted because "Congress ... occupied the field of regulation of public postsecondary education benefits to aliens" when it enacted PRWORA. The LULAC court offered no rationale for this conclusion, however, and its interpretation of PRWORA has been expressly rejected by another federal district court. The LULAC court's interpretation also arguably does not reflect the prevailing interpretation of PRWORA. In other cases, dealing with benefits unrelated to higher education, courts have found that PRWORA does not preempt the field of aliens' access to benefits because it expressly permits states to provide public benefits to aliens who are not "qualified aliens" in specified circumstances. 
Challenges on other grounds, not involving equal protection or preemption, may also be possible depending upon the facts and circumstances surrounding particular state measures. For example, in 2013, beneficiaries of the Deferred Action for Childhood Arrivals (DACA) initiative challenged their exclusion from Virginia community colleges on the grounds that the state's determination that they are ineligible to establish Virginia domicile was "contrary to Virginia law." This suit was reportedly withdrawn after the state adopted a policy of providing in-state tuition to DACA beneficiaries.
section_title: In-State Tuition
paragraphs: State measures that would deny unauthorized aliens in-state tuition would also appear to be permissible as a general matter. At least one commentator has suggested that the holding of Plyler should be extended not just to access to higher education, but also to eligibility for in-state tuition. However, no court appears to have adopted this view, and it would seem difficult to maintain given that in-state tuition is generally seen as a public benefit, as discussed below, and federal law restricts unauthorized aliens' receipt of public benefits. PRWORA, in particular, establishes a "default rule" that unauthorized aliens are ineligible for public benefits unless a state enacts legislation that "affirmatively provides" for their eligibility. Thus, state measures that essentially reflect PRWORA's default rule—that unauthorized aliens are ineligible—seem unlikely to be found to be preempted by federal law. Such measures also seem unlikely to be found to violate the Equal Protection Clause because Congress established the default rule that unauthorized aliens are generally ineligible for public benefits, and its plenary power over immigration extends to restricting aliens' eligibility for public benefits. As previously noted, federal measures limiting aliens' eligibility for public benefits are subject to more deferential review than state measures, and will generally be upheld so long as there is a reasonable basis for the limitation. Further, the Supreme Court has indicated that states may impose restrictions upon aliens' receipt of public benefits that would otherwise be impermissible if Congress has "by uniform rule prescribed what it believes to be appropriate standards for the treatment of an alien subclass." Thus, while two pre-PRWORA Supreme Court cases invalidated state measures that barred certain aliens from receiving in-state tuition and state financial aid, these cases should not necessarily be construed to mean that similar measures would necessarily be invalid post-PRWORA, particularly insofar as the measures affect unauthorized aliens.
At least one commentator, apparently concerned about PRWORA's restrictions on the provision of public benefits to unauthorized aliens, has also suggested that in-state tuition should not be viewed as a public benefit because it does not involve "direct financial assistance," or payments of money, to students. However, the only court that appears to have addressed the issue held otherwise, finding that a California law—which permits unauthorized aliens who complete at least three years of secondary school within the state and meet other criteria to receive in-state tuition—provides a public benefit for purposes of PRWORA because in-state tuition involves a calculable amount. This decision was subsequently overturned on other grounds, but the view that in-state tuition constitutes a public benefit has been espoused by another court and the Colorado Attorney General. The view that in-state tuition constitutes a public benefit would also appear to be supported by cases addressing whether other government services and assistance constitute public benefits for purposes of PRWORA. These cases have generally found that a public benefit is something that "assist[s] people with economic hardship," and could "create [an] incentive for illegal immigration." An argument could be made that in-state tuition is a public benefit in light of these decisions on the ground that it makes college more affordable for needy students. Some have also suggested that eligibility for in-state tuition is an incentive for illegal immigration.
It is, however, important to note that, insofar as it is a public benefit, in-state tuition is a benefit for the student, not the student's household, and PRWORA neither authorizes nor requires states to restrict the eligibility for in-state tuition of U.S. citizen students whose parents are unauthorized aliens. Some states have previously sought to classify U.S. citizen students who reside within the state as "out of state" residents because their parents—who also reside within the state—are unauthorized aliens. These states have sometimes argued that they "are merely complying with federal law" in adopting such measures. However, courts have uniformly rejected this view as "fundamentally misconstru[ing]" PRWORA, which does not purport to restrict the provision of public benefits to U.S. citizens, and as impermissibly distinguishing between similarly situated U.S. citizens based on their parentage. One court, in particular, emphasized that these measures would "classify U.S. citizens as aliens, and in doing so, create a second-tier of U.S. citizenship that depreciates the historic values of Plaintiffs' citizenship by affording Plaintiffs some of the benefits that other similarly situated U.S. citizens enjoy but not all of the benefits."
section_title: Financial Aid
paragraphs: Neither courts nor commentators appear to have raised any significant questions about the permissibility of state measures denying state financial aid (i.e., financial aid provided using only state funds) to unauthorized aliens post-PRWORA, perhaps because financial aid has been widely recognized as a public benefit for purposes of PRWORA and IIRIRA. This means that any state that would provide state financial aid to unauthorized aliens must enact legislation that affirmatively provides for their eligibility, as required by PRWORA. Also, depending upon the interpretation of IIRIRA that is adopted, the state may need to avoid conditioning eligibility upon residence when enacting such legislation. See "State Measures Granting Access: In-State Tuition ," below. 
PRWORA has also apparently been construed to bar unauthorized aliens from receiving federal financial aid. Amendments made to the Higher Education Act in 1986 permit those "in the United States for other than a temporary purpose" who can provide evidence from immigration officials of their intent to become permanent residents to qualify for federal financial aid. These amendments could, on their face, potentially be read as permitting at least some unauthorized aliens to receive federal financial aid. However, consistent with the view that PRWORA "invalidated all existing" federal, state, or local measures regarding noncitizens' eligibility for public benefits to the degree that these measures conflict with PRWORA, the Department of Education has determined that only those aliens who fall within PRWORA's definition of qualified alien are eligible for federal financial aid. This definition includes LPRs; aliens granted asylum; refugees; aliens paroled into the United States for a period of at least one year; aliens whose deportation is being withheld; aliens granted conditional entry; and Cuban and Haitian entrants. All other aliens excluded from PRWORA's definition of "qualified alien," although certain aliens (e.g., those who have been subject to domestic violence) are treated as if they were qualified aliens for purposes of PRWORA. 
section_title: State Measures Granting Access
paragraphs: State measures that would grant unauthorized aliens access to public institutions of higher education, in-state tuition, and financial aid would also appear to be generally permissible. Because access to public institutions of higher education has not been viewed as a public benefit for purposes of PRWORA, states may generally provide for unauthorized aliens' access without enacting legislation to this effect. In-state tuition and financial aid, in contrast, have generally been viewed as public benefits. This means that states must enact legislation that affirmatively provides for unauthorized aliens' eligibility for such benefits. Also, depending upon how IIRIRA is interpreted, states may need to base unauthorized aliens' eligibility on factors other than their residence in the state (e.g., high school attendance and graduation in the state). 
subsections: section_title: Public Higher Education
paragraphs: Under current law, states would not appear to be barred from granting unauthorized aliens access to public institutions of higher education. They would also not appear to be required to enact legislation that "affirmatively provides" for unauthorized aliens' eligibility on the ground that access to higher education has generally not been viewed as a public benefit for purposes of PRWORA. Some commentators have suggested that it should be viewed as such because institutions of higher education rely upon federal and state funds in educating students, and the LULAC court characterized access to higher education as a public benefit in a decision issued shortly after PRWORA's enactment. However, the LULAC court did not articulate any rationale for viewing access to higher education as a public benefit, and another district court subsequently adopted the opposite view based on the definition of public benefit given in federal law. This definition encompasses "postsecondary education ... or other similar benefit[s] for which payments or assistance are provided to an individual, household, or family eligibility unit by [a government] agency ... or by appropriated funds." In particular, the latter court noted that admission does not involve "payments" to students or their households. Admission could arguably also be said not to constitute "assistance" if this term is interpreted in light of its "plain meaning" as "aid" or "help." The case law generally construing the meaning of public benefit for purposes of PRWORA also suggests that access to public higher education is unlikely to be viewed as a public benefit. These cases have generally taken the term public benefits to refer to resources that "assist people with economic hardship," and could "create [an] incentive for illegal immigration." An argument could be made that eligibility to enroll at a public institution of higher education does neither of these things. Eligibility to enroll, if acted upon, creates an obligation for the alien to pay, rather than provides for payment to the alien. Also, the availability of nonimmigrant visas for foreign students arguably lessens the need to enter or remain in the United States unlawfully in order to attend public institutions of higher education.
section_title: In-State Tuition
paragraphs: States would also not appear to be barred from providing in-state tuition to unauthorized aliens so long as the state complies with PRWORA and, potentially, IIRIRA in doing so. PRWORA generally prohibits states from providing public benefits to unauthorized aliens unless they enact legislation that "affirmatively provides" for unauthorized aliens' eligibility, and in-state tuition has generally been viewed as a public benefit for purposes of PRWORA. Some state statutes providing public benefits, such as in-state tuition, have been challenged on the grounds that the statute is barred by PRWORA because it does not expressly reference PRWORA, or clearly specify that "illegal aliens" are eligible, so as to "put the public on notice." This view appears to be based on the conference report accompanying PRWORA, which states that "[o]nly the affirmative enactment of a law by a ... legislature and signed by the Governor after the date of enactment of this Act, that references this provision, will meet the requirements of this section." However, as enacted, PRWORA does not require that states refer either to PRWORA, or to an enactment benefitting "illegal aliens," and reviewing courts have found that there are no such requirements. In reaching this conclusion, the courts have noted that Congress has elsewhere required states to reference specific provisions of federal law when enacting particular measures, and PRWORA does not do so. Thus, they concluded, Congress is presumed not to have intended to impose such a requirement with PRWORA. Courts have also found that nothing in PRWORA requires states to include in any enactments making unauthorized aliens eligible for public benefits language that "clearly put[s] the public on notice that tax dollars are being used to benefit illegal aliens," although one court did suggest that a state could not be said to have "affirmatively provided" for unauthorized aliens' eligibility if it were to "confer[] a benefit generally without specifying that its beneficiaries may include undocumented aliens." At least one court has also found that state legislatures may delegate to administrative agencies or local governments the authority to determine whether unauthorized aliens are eligible for particular benefits. However, the significance of these decisions in the higher education context may be limited by state statutes which require that new tuition classifications be created and/or approved by the legislature.
What, if any, limits IIRIRA may impose upon states enacting legislation that would provide for unauthorized aliens' eligibility for in-state tuition is less clear because the courts have taken different approaches in the two challenges decided, to date, to state laws permitting unauthorized aliens to receive in-state tuition based on high school attendance in the state. Some have suggested that these measures run afoul of IIRIRA insofar as they do not provide for all U.S. citizens and nationals to receive in-state tuition. However, in the most recent of these two cases, Martinez v. Regents of the University of California , the California Supreme Court upheld a California statute which provided that all students (other than nonimmigrant aliens) are exempt from paying nonresident tuition at public institutions of higher education if they attended high school in California for three or more years, graduate from a California high school or attain the equivalent thereof, and meet other criteria. A state appeals court had found that this statute ran afoul of IIRIRA because it effectively provided in-state tuition to unauthorized aliens based on their residence in the state, without also providing it to U.S. citizens and nationals residing in other states. The California Supreme Court reversed, however, because the statute specifically conditioned eligibility for in-state tuition upon high school attendance and graduation within the state. Thus, the high court found that the measure did not conflict with IIRIRA since IIRIRA refers to in-state tuition based on residence, not based on high school attendance and graduation. Further, because the high court viewed the statute as unambiguously providing for in-state tuition based on high school attendance and graduation, not residence, it declined to consider the legislative history materials that the appellate court had viewed as evidencing an intent to benefit unauthorized aliens. However, the high court also expressed the view that, even if the legislative history were to reflect such an intent, there is "nothing ... legally wrong with the Legislature's attempt to avoid [IIRIRA] ... mere desire to avoid the restrictions provides no basis to overturn the [California statute]."
Previously, however, in Day v. Sebelius , the federal district court in Kansas dismissed a suit filed by out-of-state students alleging that a Kansas statute like the California one was barred by IIRIRA, on the grounds the students lacked standing and had no right to sue to enforce IIRIRA. Specifically, as to standing, the court found that the plaintiffs could not demonstrate that they were injured in fact by the Kansas statute, given that the statute did not apply to them, and they paid out-of-state tuition both before and after its enactment. Similarly, the court found that IIRIRA did not create a private right of action, which means that individuals cannot sue to enforce it. The court's decision was subsequently affirmed by a federal appeals court, and the Supreme Court declined to grant certiorari. 
Following the Day decision, the Washington Legal Foundation (WLF) filed several complaints with the Department of Homeland Security (DHS) alleging that certain in-state tuition laws violated IIRIRA. The WLF specifically called on DHS to enforce IIRIRA against states that offer in-state tuition to unauthorized aliens based on high school attendance in the state on the grounds that the Day court had found that private individuals cannot do so. DHS does not appear to have responded publicly to these complaints, although it elsewhere expressed the view that states may decide whether to provide in-state tuition to unauthorized aliens. However, recent litigation in state court has raised the possibility that private individuals could potentially bring suits challenging at least some state practices in providing in-state tuition to unauthorized aliens based on standing as state taxpayers. 
section_title: Financial Aid
paragraphs: Fewer states provide state financial aid to unauthorized aliens than provide in-state tuition, and neither plaintiffs nor commentators appear to have raised significant issues regarding states providing for unauthorized aliens' eligibility for state financial aid, separate and apart from their eligibility for in-state tuition. However, in the event of such a challenge, it seems likely that state financial aid would be found to constitute a public benefit for purposes of PRWORA and IIRIRA for reasons previously discussed. Thus, state measures that would provide for unauthorized aliens' eligibility would generally be seen as permissible so long as the state enacts legislation that makes clear that unauthorized aliens are eligible. The state may also need to provide for unauthorized aliens' eligibility upon some basis other than residence in the state, at least given one of the two interpretations of IIRIRA to date. 
section_title: Conclusion
paragraphs: Further developments in this area seem likely, particularly in terms of federal and state legislative proposals and enactments. The enactment of laws permitting unauthorized aliens to receive in-state tuition was cited in 2014 as a "trend" in state immigration legislation. The courts, in contrast, may be unlikely to reconsider existing precedents as to the right to higher education, or whether in-state tuition and financial aid constitute public benefits for purposes of PRWORA and IIRIRA. There could, however, potentially be developments in the state courts based on litigation asserting state taxpayer standing to challenge alleged violations of IIRIRA, or challenging state measures' conformity with provisions of state law.