Superior Court judge rules in favor of ‘dreamers’

Saying that federal law and not the state determines who is here legally, a Maricopa County Superior Court judge ruled Tuesday that “dreamers” are entitled to the same lower tuition rates as other Arizona residents.

Judge Arthur Anderson rejected arguments by the Attorney General’s Office that students who are accepted into the Obama administration’s Deferred Action for Childhood Arrivals program are not “lawfully present” in the United States and therefore ineligible for in-state tuition.

Anderson said the federal Department of Homeland Security considers DACA recipients to be here legally.

He also pointed out that they even are issued Employment Authorization Documents that permit them to work. And Anderson noted there even is a section of Arizona law that says EADs are a form of permissible identification for certain benefits.

“The state cannot establish subcategories of ‘lawful presence,’ picking and choosing when it will consider DACA recipients lawfully present and when it will not,” the judge wrote.

Tuesday’s ruling most immediately affects students in the Maricopa Community College system. College officials had agreed to let DACA recipients pay the lower tuition rate if they met all the other residency requirements.

But while it sets no statewide precedents, it also is likely to buttress arguments by Pima Community College officials who, like their Maricopa counterparts, have offered in-state tuition to DACA recipients.

And it will help support arguments by the Arizona Board of Regents.  It is attempting to enact a special tuition structure for DACA recipients that, while not the same as in-state students, is less than the out-of-state tuition they have been paying.

The heart of the lawsuit is a 2006 voter-approved law which says someone who is “not a citizen or legal resident of the United States or who is without lawful immigration status is not entitled to classification as an in-state student.” It also denies any form of waivers of tuition or fees, grants, scholarships, financial aid, tuition assistance “or any other type of financial assistance that is subsidized or paid in whole or in part with state monies.”
In 2012, however, the Obama administration approved the DACA program which allows those who came to this country as children and meet other requirements to remain. It also provides them with documents authorizing them to work legally in this country.

Based on that, the Maricopa colleges governing board decided DACA recipients are eligible for in-state status.

Tom Horne, then the attorney general, filed suit, arguing that being accepted into the DACA program is not the same as “lawful status.”
In his ruling, Anderson pointed out the terms “citizen,” “legal resident” and    “lawful immigration status” were not defined in the measure.

But the judge said the way he reads federal law as well as the voter-approved measure, the exclusion from in-state status applies only to those who are not “lawfully present.” And that, said the judge, is not up to the state to determine.

“Federal law, not state law, determines who is lawfully present in the U.S.,” he wrote. And Anderson said the fact that they may have entered the country illegally or overstayed a visitor’s visa is irrelevant.

“The circumstance under which a person enters the U.S. does not determine that person’s lawful presence here,” the judge said.  Citing a federal appellate court ruling on Arizona driver’s licenses for DACA recipients, Anderson said the Department of Homeland Security “considers DACA recipients not to be unlawfully present in the United States because their deferred action is a period of stay authorized by the (United States) Attorney General.”

There was no immediate response from Mark Brnovich, who is Horne’s successor and inherited the lawsuit when he took office in January.

“We’re just celebrating in the moment,” said Rufus Glasper, chancellor of the Maricopa colleges system.

He said after voters approved the measure in 2006 requiring the higher tuition, enrollment dropped by about 15,000. Glasper said college officials estimated anywhere from 10,000 to 12,000 of those students were not here legally.

Under the new policy, Glasper said about 1,200 DACA recipients have qualified for in-state tuition.

What that means, he said, is paying $84 a credit hour versus the out-of-state rate of $314. For a student pursuing an associate’s degree, the difference can add up to $13,800.

The ruling comes one day after the Arizona Board of Regents took the first steps toward creating a special tuition status for DACA recipients.

Board members have been unwilling to mount a direct challenge to whether the 2006 voter-approved measure allows the universities to charge them in-state tuition. So instead they are proposing a new category at 150 percent of the in-state rate.

Regents Chairman Mark Killian said he thinks that rate is legally justifiable no matter what courts ultimately decide on the issue. He said it covers the actual cost, meaning it does not run afoul of any provisions barring taxpayers from subsidizing the expense of providing a college education.

A formal vote on that plan is set for next month.

Killian said Tuesday he had not yet seen the ruling in the Maricopa case. He said he will have the regents’ attorneys review it to see whether it might be appropriate to instead approve a different plan for DACA recipients, one with a lower tuition rate than that 150 percent figure.

There was no immediate response from Pima college officials.