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Regents grant in-state tuition to certain immigrants

Mark Killian, chairman of the Arizona Board of Regents. (Photo by Lauren Handley, Cronkite News)

Mark Killian, chairman of the Arizona Board of Regents. (Photo by Lauren Handley, Cronkite News)

Dreamers who enroll or continue at the state’s three universities will immediately be able to attend classes by paying the same tuition as Arizona residents.

In a unanimous decision Thursday, the Arizona Board of Regents directed the schools to grant in-state status to anyone accepted into the Obama administration’s Deferred Action for Childhood Arrivals program if they meet other residency requirements. That will cut their costs by more than half.

The move came less than 48 hours after a Maricopa County Superior Court judge upheld a similar policy at Maricopa Community Colleges.

Judge Arthur Anderson said DACA recipients are authorized by the federal government to be in this country. And that, he said, means are not subject to the 2006 voter-approved law which requires those not in the country legally to pay out-of-state tuition.

Thursday’s move by the regents comes with a risk.

Anderson’s ruling applies only to the Maricopa colleges who were defendants in the lawsuit. The universities were not parties in that case.

Potentially more significant, Attorney General Mark Brnovich has indicated he intends to file an appeal. And a contrary ruling by a higher court would set precedent for the state and be binding on the regents.

But Greg Patterson, a member of the board, said as far as he and his colleagues are concerned, all that is irrelevant, at least for the time being.
“We had a judge in superior court look at the statute, which is exactly on point and is the statute we follow, and interpret it to say DACA students qualify for in-state tuition,” he said. “I see no way that we could then … question the authority of this judge to interpret this statute.”

And if it’s overturned?

“Well, then it’s overturned,” Patterson said. “But we’re not going to anticipate that it might be overturned.”

An aide to Brnovich said the attorney general was not consulted prior to Thursday’s vote, as the board has its own independent counsel. And Ryan Anderson said his boss is still weighing whether to appeal the ruling in the Maricopa colleges case.

“Despite the trial court’s ruling, Attorney General Brnovich does not believe that President Obama has the right to unilaterally rewrite our immigration laws and roll over voter approved initiatives,” he said.

Gov. Doug Ducey, who is a member of the regents but did not attend Thursday’s hearing, called it “frustrating that the will of Arizona voters is being ignored by the courts.” But unlike Brnovich, the governor said he has no intention of fighting the vote.

“Given the current status of legal decisions, I understand and accept why the regents decided as they did,” he said.

The comments about the public intent stem from Proposition 300. The 2006 law says that in-state status – and the lower tuition that goes with it – cannot be applied to someone who is “not a citizen or legal resident of the United States or who is without lawful immigration status .” It also bars any other kind of financial assistance, fee waivers or other aid paid for even in part with state dollars.

But in 2012 the Obama administration adopted the DACA program allowing those who were brought here illegally as children to remain if they meet certain other conditions. The program even gives them federal Employment Authorization Documents.

Based on that, the Maricopa colleges governing board concluded that DACA recipients met the definition of being legally present in the country and eligible for in-state tuition. Tom Horne, Brnovich’s predecessor, then sued.

On Tuesday, Anderson said the federal government gets to decide who is here legally. And he said anyone who has an EAD issued by the Department of Homeland Security qualifies.

Thursday’s vote followed a half-hour executive session where the regents got advice from their legal counsel. But board member Bill Ridenour said his vote goes beyond the legal issue – and even the politics of illegal immigration.

“When you’re in the Board of Regents, it puts a human face on it and a human aspect to the struggles they go through,” he said.

“All they want is an opportunity for an education,” he continued. “All they want is an opportunity for good jobs. All they want is an opportunity for a better future for themselves and their families.”

Board President Eileen Klein said she has no idea how many DACA recipients already are attending state universities and paying the full charges, whether out of their own pockets or with the help of private groups that established scholarships in the wake of Proposition 300.

There also is no way of knowing how many new students might now enroll with the more affordable tuition.

The regents’ decision comes just days after the board took the first steps to create a special tuition category that would allow dreamers and some others to pay a rate equal to 150 percent of what is charged to in-state students.

Regents Chairman Mark Killian said the maneuver was an attempt to provide some financial relief to DACA recipients but not run afoul of the 2006 law. He figured the 150 percent figure – in the $16,000 range for students at the University of Arizona and Arizona State University versus the new non-resident rates ranging from $26,000 to more than $32,000 – would be legal because it would cover the actual cost of educating the students, meaning no subsidies using taxpayer dollars.

Thursday’s vote to honor EADs as proof of legal presence makes that change unnecessary, at least for DACA recipients.

But board President Eileen Klein said plans are to pursue the policy change anyway, as it also applies to students who graduated from Arizona high schools but moved away before attending college. It also, however, would provide a legal fallback position should appellate courts rule that DACA recipients are not legally present and ineligible for in-state tuition.

Superintendent of Public Instruction Diane Douglas, also is a voting member of the board, also did not attended Thursday’s meeting. She provided no comment about the vote.

The change in policy has been a long time coming.

It was first suggested in 2013 by Dennis DeConcini, the former U.S. senator who sat on the board. He proposed getting around the 2006 law by setting a special rate for dreamers of 110 percent of what is paid by residents.

DeConcini said then – as Ridenour said Thursday – he was moved by the stories told by the students. But he got the support of only one other board member, LuAnn Leonard.

Rick Myers, on the board then as now, said he could not support the proposal because he feared it would lead to the universities being added to the lawsuit already filed by the Attorney General’s Office against the Maricopa colleges. But Myers said he would support some number he believed would survive a legal challenge.

That eventually led to the 150 percent policy the board unanimously adopted earlier this week.


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