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. Preemption

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." Education has historically been seen as a local, not a federal, matter. 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. 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 . State Restrictions on Access

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. 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. In-state tuition and financial aid, in contrast, have generally been viewed as public benefits. 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. 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. 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. Similarly, the court found that IIRIRA did not create a private right of action, which means that individuals cannot sue to enforce it.
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.