Order Code RS22500
Updated December 8, 2006
Unauthorized Alien Students, Higher
Education, and In-State Tuition Rates:
A Legal Analysis
Jody Feder
Legislative Attorney
American Law Division
Summary
Currently, federal law prohibits states from granting unauthorized aliens certain
postsecondary educational benefits on the basis of state residence, unless equal benefits
are made available to all U.S. citizens. This prohibition is commonly understood to
apply to the granting of “in-state” residency status for tuition purposes. In recent years,
Congress has considered legislation that would amend federal law, and similar bills are
likely to be introduced during the 110th Congress. Meanwhile, some states have passed
laws aimed at making unauthorized state residents eligible for in-state tuition without
violating this provision. This report provides a legal overview of cases involving
immigrant access to higher education, as well as an analysis of the legality of state laws
that make in-state tuition rates available to illegal immigrants. For a policy analysis of
this issue, see CRS Report RL31365, Unauthorized Alien Students: Issues and
Legislation, by Andorra Bruno and Jeffrey J. Kuenzi.
As noted above, federal law currently discourages states and localities from granting
unauthorized aliens certain higher education benefits. Specifically, Section 505 of the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) mandates that
unauthorized aliens “shall not be eligible on the basis of residence within a State (or a
political subdivision) for any postsecondary education benefit unless a citizen or national
of the United States is eligible for such a benefit (in no less an amount, duration, and
scope) without regard to whether the citizen or national is such a resident.”1 Although
there is neither report language nor agency regulations available to provide guidance, this
provision appears to be designed to prevent states from offering illegal aliens in-state
tuition at public institutions of higher education. While Section 505 does not explicitly
prohibit states from doing so, the provision could potentially impose a costly penalty on
those who do by requiring them to make cheaper in-state tuition rates available to
1 8 U.S.C. § 1623.

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nonresidents. Since the enactment of Section 505, there has been debate about whether
states and localities may offer in-state tuition to unauthorized alien students on some basis
other than residency in order to avoid violating the law. This report provides a legal
overview of cases involving immigrant access to higher education, as well as an analysis
of the legality of state laws that make in-state tuition rates available to illegal immigrants.
Legal Overview
The Supreme Court has, on several occasions, confronted questions regarding access
to education for individuals who are neither citizens or legal immigrants, but these cases
do not directly address whether the government can restrict the access of unauthorized
student aliens to in-state tuition or to higher education more broadly. Nevertheless, these
cases are instructive for purposes of evaluating the legal issues involved in unauthorized
student alien eligibility for higher education admission and/or in-state tuition rates.
Although the Supreme Court has not directly addressed the issue of unauthorized
immigrant access to higher education, the Court has considered the issue of unauthorized
immigrant access to elementary and secondary education. Indeed, in the 1982 Plyler v.
Doe case, the Court held that a Texas statute that would have prohibited unauthorized
student aliens from receiving a free public elementary and secondary education violated
the Constitution.2 In reaching this ruling, the Court determined that unauthorized
immigrants are entitled to protection under the Equal Protection Clause of the Fourteenth
Amendment,3 which provides that no state shall “deny to any person within its jurisdiction
the equal protection of the laws.”4 Because the Court ruled that unauthorized immigrants
are not a “suspect class” and education is not a “fundamental right” — both findings
would have triggered more intense judicial scrutiny of the Texas statute — the Court
evaluated the Texas statute under a variant of the less stringent rational basis standard of
review, requiring that the statute further a substantial state goal. The Plyler Court,
however, ruled that the state’s interests in enacting the statute — namely, to conserve the
state’s educational resources, to prevent an influx of illegal immigrants, and to maintain
high-quality public education — were not legitimately furthered by the legislation. As a
result, the Court struck down the Texas statute.5
Although the Plyler decision did not explicitly create an entitlement for unauthorized
student aliens to attend public elementary and secondary schools, the case has, in practice,
had the effect of establishing unauthorized immigrant access to public education, in part
because the decision appears to preclude states from justifying legislation similar to the
Texas statute that was struck down. The logic of the Plyler case, however, does not
necessarily extend to unauthorized immigrant access to higher education. Indeed, the
Plyler decision heavily emphasized the importance of a basic elementary and secondary
education. A state, therefore, could readily distinguish legislation restricting unauthorized
immigrant access to higher education on the grounds that higher education, unlike
elementary and secondary education, is not essential to “maintaining the fabric of our
2 457 U.S. 202 (1982).
3 Id. at 210.
4 U.S. Const., amend. XIV.
5 Plyler v. Doe, 457 U.S. at 227-31 (1982).

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society.”6 Although the Supreme Court has not ruled on this question, the distinction
between higher education and elementary and public education make it appear unlikely
that the Court would strike down legislation that restricted the access of unauthorized
student aliens to higher education.
Meanwhile, in Toll v. Moreno,7 the Court considered a challenge to a Maryland state
policy to deny in-state status to non-immigrant aliens holding G-4 visas even if such
aliens were state residents who would have otherwise qualified for in-state tuition rates
at state colleges and universities. Ultimately, the Court held that the state policy was
invalid under the Supremacy Clause of the Constitution. Under the Supremacy Clause,
the laws of the United States “shall be the supreme law of the land,” and state laws to the
contrary are preempted by federal law.8 Since immigration regulation is an exclusive
power of the federal government, “state regulation not congressionally sanctioned that
discriminates against aliens lawfully admitted to the country is impermissible if it imposes
additional burdens not contemplated by Congress.”9 Because federal law allowed G-4
aliens to establish residency in the U.S., the Court found that the Maryland policy to deny
residency status for purposes of qualifying for in-state tuition rates conflicted with federal
law and therefore violated the Supremacy Clause.10
It is important to note that Toll v. Moreno involved aliens who were lawfully present
in the U.S. and thus may not extend to protect unauthorized student aliens who are denied
state educational benefits such as admission to state colleges and universities or eligibility
for in-state tuition rates. Indeed, as long as a state policy to deny such educational benefits
to unauthorized student aliens is not found to conflict with federal immigration standards,
it is likely to be upheld by the courts, as demonstrated in the Equal Access Education v.
Merten case described below.
Thus far, it appears that only one federal court has addressed the question of whether
it is constitutionally permissible for a state to prohibit unauthorized immigrants from
attending state colleges and universities, let alone from receiving in-state tuition. In Equal
Access Education v. Merten, the plaintiffs claimed that several Virginia public institutions
of higher education had violated the Supremacy, Commerce, and Due Process Clauses of
the Constitution by denying admission to unauthorized student aliens.11 The institutions
adopted this policy in response to a 2002 memorandum from the Virginia Attorney
General that asserted that unauthorized aliens should not be admitted to Virginia’s public
colleges and universities. Although the Court dismissed the Commerce Clause and Due
Process Clause claims,12 it did allow the Supremacy Clause claim to proceed, at least in
part. Since immigration regulation is an exclusive power of the federal government, the
court ruled that the Supremacy Clause would not be violated unless the plaintiffs could
6 Id. at 221.
7 458 U.S. 1 (1982).
8 U.S. Const. art. VI, cl. 2.
9 Toll v. Moreno, 458 U.S. at 12-13 (citing DeCanas v. Bica, 424 U.S. 351, 358 (1976)).
10 Toll v. Moreno, 458 U.S. at 13-14.
11 305 F. Supp. 2d. 585 (E.D. Va. 2004).
12 Id. at 608-14.

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show that the Virginia institutions were using state, not federal, immigration standards in
order to deny admission to unauthorized aliens.13 Although the court ultimately dismissed
the plaintiffs’ Supremacy Clause claims for procedural reasons in a later proceeding,14 the
Equal Access Education case indicates that unauthorized student aliens might have
difficulty in establishing constitutional violations on the part of public institutions that
deny either admission or in-state tuition to unauthorized immigrants.
Legal Analysis of State Laws That Make In-State Tuition
Available to Illegal Immigrants
Other federal litigation regarding unauthorized student aliens has revolved around
the separate question of whether state laws that make unauthorized aliens eligible for in-
state tuition violate Section 505 of the IIRIRA’s prohibition against conferring
educational benefits on the basis of state residency. Indeed, several states have enacted
laws with respect to providing in-state tuition rates for unauthorized alien students.15 For
example, California enacted a law in 2001 that makes unauthorized aliens eligible for in-
state tuition rates at certain state community colleges and universities, but the state statute
bases eligibility on criteria that do not explicitly include state residency. To qualify for in-
state rates, a student must have attended high school in California for at least three years
and graduated from high school. In addition, unauthorized alien students are required to
file an affidavit stating that they have either filed an application to legalize status or will
file such an application as soon as they become eligible.16 California officials argue that
by using eligibility criteria other than state residency, their law does not violate the
Section 505 restriction on conferring educational benefits on the basis of state residency.
Although a state court recently rejected a challenge to the California law,17 a federal
court decision in Kansas appears to be the first of its kind to address whether state laws
that make unauthorized immigrants eligible for in-state tuition violate Section 505 of
IIRIRA. The case, Day v. Sebelius,18 involved a challenge to the legality of a Kansas state
law that makes unauthorized aliens eligible for in-state tuition if they attended a Kansas
high school for three years, received a high school diploma or equivalent from a Kansas
school, were not a resident of another state, and signed an agreement to seek legal
immigration status.19 Specifically, the suit, which was filed by non-resident students (or
parents who support them) who attended Kansas state institutions but paid out-of-state
tuition, alleged that the Kansas law violated, among other things, Section 505 of the
IIRIRA and the Equal Protection Clause of the Constitution.
13 Id. at 608.
14 Equal Access Educ. v. Merten, 325 F. Supp. 2d 655 (D. Va. 2004).
15 For more information on state legislation, see National Conference of State Legislatures, In-
State Tuition and Unauthorized Student Immigrants, July 26, 2006,
[http://www.ncsl.org/programs/immig/Immig_InStateTuition0706.htm].
16 Cal Ed Code § 68130.5.
17 Sara Hebel, Judge Upholds Immigrant-Tuition Law, The Chronicle of Higher Education, Oct.
20, 2006. The plaintiffs are reportedly planning to appeal this decision.
18 376 F. Supp. 2d. 1022 (D. Kan. 2005).
19 K.S.A. § 76-731a(b)(2).

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The court ultimately dismissed six of the seven claims that were asserted in the case,
including the equal protection claim, on the grounds that the plaintiffs lacked the standing
to bring suit. Standing requirements, which are concerned with who is a proper party to
raise a particular issue in the federal courts, are derived from Article III of the
Constitution, which confines the jurisdiction of federal courts to actual “Cases” and
“Controversies.”20 The case-or-controversy requirement has long been construed to
restrict Article III courts to the adjudication of real, live disputes involving plaintiffs who
have “a personal stake in the outcome of the controversy....”21 Under the Supreme Court’s
jurisprudence, plaintiffs appearing before an Article III court must show three things in
order to meet constitutional standing requirements: (1) he/she has suffered an “injury in
fact” that is concrete and particularized (not common to the entire public), and actual or
imminent; (2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely that the injury will be redressed by a favorable decision.22
According to the Day v. Sebelius court, the plaintiffs failed to establish standing with
respect to most of their claims because the plaintiffs could not demonstrate that they were
injured in fact by the Kansas statute, which did not actually apply to the plaintiffs, who
had paid out-of-state tuition rates both before and after enactment of the statute.23
Furthermore, the court noted that even if the plaintiffs had been found to have suffered
an injury in fact, they had still failed to demonstrate that a favorable court decision with
respect to most of their claims would have redressed that injury. For example, if the court
had found that the Kansas statute violated the Equal Protection Clause of the Constitution,
the plaintiffs would not receive any benefit because the invalidation of the Kansas
legislation would not change the fact that the plaintiffs would still be required to pay out-
of-state tuition rates.24
Although the court rejected six of seven claims on the grounds that the plaintiffs
lacked standing, the court found that the plaintiffs did have standing to sue with regard
to their claim that the Kansas statute violated Section 505 of IIRIRA. The court, however,
dismissed this claim because it found that the plaintiffs did not have a private right of
action, which is a right that authorizes an individual to sue in court. In the statutory
context, administrative agencies, rather than individuals, are typically the only party that
is authorized to bring a lawsuit against entities that violate the law, unless the statute
expressly or impliedly grants a private right of action to individuals to sue to enforce the
statute. Because the Day v. Sebelius court found that IIRIRA neither explicitly nor
implicitly gives individuals a remedy to enforce immigration laws,25 the plaintiffs did not
have a private right of action, and the court dismissed their Section 505 claim. The
plaintiffs are reportedly appealing the decision.
20 U.S. CONST. art. III, § 2, cl. 1.
21 Baker v. Carr, 369 U.S. 186, 204 (1962).
22 See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
23 Day v. Sebelius, 376 F. Supp. 2d. at 1033, 1039-40.
24 Id. at 1034.
25 Id. at 1039-40.

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Although lawsuits that challenge state laws that grant in-state tuition to unauthorized
student aliens may be brought in other states, plaintiffs in such lawsuits are likely to face
difficulties similar to those of the Kansas plaintiffs in establishing standing or a private
right of action to sue. Given these difficulties, it’s unlikely that individual plaintiffs could
successfully challenge such state laws.
In recognition of this problem, the Washington Legal Foundation, a legal advocacy
group, recently filed several complaints with the Department of Homeland Security
(DHS). In these complaints, the foundation argued that certain state tuition laws violate
Section 505 of IIRIRA and called on DHS to enforce the statute against states that offer
in-state tuition rates to unauthorized student aliens since it appears that individuals
cannot.26 Thus far, DHS does not appear to have responded to these complaints. If,
however, the agency were to interpret the states’ actions to be a violation of Section 505,
its options could include withholding federal funds from the states in question or issuing
an order that directs the states to comply with the law. Such action by DHS, if
forthcoming, could result in legal challenges by the affected states. If that were to occur,
then it would be up to the federal courts to determine whether state programs that
authorize in-state tuition for unauthorized alien students are a violation of federal law.
In considering such a question, a court would likely begin by examining the statutory
language at issue. The Supreme Court often recites the "plain meaning rule," that, if the
language of the statute is clear, there is no need to look outside the statute to its legislative
history in order to ascertain the statute's meaning,27 and more often than not, statutory text
is the ending point as well as the starting point for interpretation.
On its face, the plain meaning of Section 505 appears clear: unless identical rates are
offered to out-of-state residents, unauthorized aliens are not eligible for in-state tuition
rates “on the basis of residence within a State.” Thus, the statutory language implies that
in-state tuition eligibility may be based on factors other than residency, including factors
that are currently the basis for eligibility under many state statutes. Under this reasoning,
a court might determine that state programs that authorize in-state tuition for unauthorized
aliens are legal as long as eligibility for those programs is based on factors other than
residency. Opponents of this interpretation, however, are likely to argue that certain state
eligibility factors, such as high school attendance within the state, essentially serve as a
proxy for state residency in violation of the congressional intent reflected in Section 505.
Although the courts may deem such an argument to be persuasive, they are probably more
likely to conclude, based on the plain language of the statute, that state programs that
authorize in-state tuition for unauthorized aliens do not violate Section 505 as long as
eligibility is not explicitly based on residency.
26 Press Release, Washington Legal Foundation, WLF Files Civil Rights Complaint Against State
of New York Regarding Benefits for Illegal Aliens (Sept. 7, 2005),
[http://www.wlf.org/upload/090705RS.pdf]; Press Release, Washington Legal Foundation, WLF
Files Civil Rights Complaint Against State of Texas Regarding Benefits for Illegal Aliens (Aug.
9, 2005), [http://www.wlf.org/upload/080905RS.pdf].
27 See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002); Caminetti v. United States,
242 U.S. 470 (1917).

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