Attorneys for the state asked the Court of Appeals Tuesday to block community colleges and the state university system from offering in-state tuition to “dreamers.”
Assistant Attorney General Rusy Crandell acknowledged that the Obama administration has ruled that those brought here as children can remain as part of the Deferred Action for Childhood Arrivals program.
That status also permits those in the program to work legally in this country. And the 9th U.S. Circuit Court of Appeals has said they also are entitled to state licenses to drive despite a law and executive order specifically designed to prevent that.
But he told the judges that 1998 voter-approved law says in-state tuition is reserved for those with “lawful immigration status.” And Crandell said that does not include DACA recipients.
“Only Congress can authorize lawful presence,” he said. By contrast, he said DACA is simply a decision by the president not to pursue and try to deport those who fall within the category.
But Mary O’Grady, representing the Maricopa community colleges, said the state can’t make that distinction.
She said that 1998 law specifically refers to federal statutes dealing with how and when states can deny benefits to those not in the country legally. And the way O’Grady reads that federal statute, Arizona not only lacks authority to deny in-state tuition to those who qualify for DACA but is actually mandated to grant them that status if they meet other residency requirements.
Hanging in the balance is not just what happens to DACA recipients in Maricopa colleges who adopted the policy after Obama approved DACA in 2012. Several other community college systems also have decided that those in DACA should get in-state tuition.
And after a trial judge upheld what Maricopa colleges are doing, the state Board of Regents voted to follow suit.
Nothing in the case before the court would keep DACA recipients — and even those who have no legal status at all — out of either community colleges or universities. But requiring them to pay out-of-state tuition would be a significant practical hurdle.
At the University of Arizona for example, tuition and mandatory fees for Arizona undergraduates is $10,872 for continuing students and $11,403 for new ones; for non-residents the comparative numbers are $30,025 and $32,630.
Crandell told the judges that they have to follow the language of the state statute. That represents the will of voters that only those with “lawful immigration status” are entitled to the break, as any difference is made up by taxpayers.
The legal issues are complicated by the fact that DACA did not exist in when voters approved the restriction in 1998.
But Crandell said that the unilateral decision by the president in 2012 to create the program does not undermine the intent of voters. More to the point, he argued that DACA recipients do not qualify under any federal law to be considered lawfully present.
“If they did, there would be no need for deferred action,” Crandell said.
O’Grady, however, said that, if nothing else, DACA recipients are “lawfully present” in this country.
“We cannot pick and chose which people who are lawfully present we are going to give in-state tuition to and which we’re going to deny in-state tuition to,” she told the court.
Crandell said that’s precisely what voters approved in 1996.
But O’Grady pointed out that what voters approved also says that the 1996 ballot measure spells out that Arizona was acting “in accordance with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.” And that, she argued, requires the state to accept the federal determination that lawful presence is enough to qualify for in-state tuition.
It isn’t just O’Grady on behalf of the Maricopa colleges asking the appellate judges to uphold in-state tuition for DACA recipients.
Victor Viramontes, representing several affected students, pointed out to the judges that a federal appellate court, ruling in a different case, has concluded that DACA recipients are authorized to be in this country. Viramontes knows something about that case which deals with driver’s licenses: His organization, the Mexican American Legal Defense and Education Fund is one of the groups that has fought efforts by Arizona to deny licenses to DACA recipients.
The judges gave no indication when they will rule.