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ABOR to mull ‘dreamers’ tuition, legal questions abound

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Arizona regents meet Thursday to decide how much more dreamers attending the state’s three universities will have to pay in tuition this fall.

The meeting follows last week’s ruling by the Court of Appeals that both federal and state law prohibit universities and community colleges from offering in-state tuition to those in the Deferred Action for Childhood Arrivals program.

The appellate judges said that is available only to those who are “lawfully present” in this country. And the judges said they do not consider being accepted into the DACA program as meeting that requirement.

Bill Ridenour

Bill Ridenour

Regents Chairman Bill Ridenour said the first order of business is whether the board needs to do anything at all, at least at this point.

While the appellate judges said in-state tuition for dreamers is illegal, the Maricopa Community College District governing board, whose policy was declared illegal, voted 4-3 late Tuesday to appeal to the Supreme Court. That means the ruling could be overturned.

Potentially more significant, the appellate court did not order the Maricopa colleges to stop charging resident tuition for their own DACA students. So there is technically no legal obligation for the Maricopa colleges — or the regents — to immediately change their policy on providing in-state tuition to its own similarly situated students.

But Ridenour, who first wants to hear from legal counsel, said that doesn’t by itself decide the issue.

“Obviously, we want to stay within the law,” he told Capitol Media Services. “By the same token, we need to figure out what we can do for these students.”

Even if in-state tuition is a legal option while the case goes to the Supreme Court, there’s also the political question of whether to continue charging DACA recipients tuition that clearly does not cover the cost of their education. That clearly was on the mind of Tracy Livingston, one member of the Maricopa board, in telling DACA recipients Tuesday night why she could not support their pleas to seek Supreme Court review.

“We not only represent you,” said Livingston, who also is a Republican candidate for state superintendent of public instruction. “We represent every citizen of this state as taxpayers.”

And she said there’s something else.

“As much as this breaks my heart, let’s keep in mind that (Proposition 300) did overwhelmingly pass,” she said, referring to the 2006 ballot measure which specifically says that in-state tuition cannot be offered to those who are not citizens, legal residents or “without lawful immigration status.” That same voter-approved law cited by the Court of Appeals prohibits those students from receiving any “tuition waivers, fee waivers, grants, scholarship assistance, financial aid, tuition assistance or any other type of financial assistance that is subsidized or paid in whole or in part with state monies.”

There is a middle ground.

The regents already have a policy on the books that Arizona residents who can’t meet the “lawful immigration status” standard can pay what regent Jay Heiler calls “a differentiated, non-subsidized rate,” designed to cover the actual cost of education but less than the full out-of-state tuition. The regents have figured that as 150 percent of residential tuition.

If they choose that option Thursday, a DACA student at the University of Arizona would pay about $18,300 in tuition and mandatory fees. That compares with the $12,228 for continuing students.

And it’s still less than the $32,429 for out-of-state students.

But legal questions remain as to whether a discounted rate is available to DACA recipients.

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Kenton Jones

Appellate Judge Kenton Jones, writing the majority opinion, said Proposition 300 is only part of the problem in offering in-state tuition to those not here legally.

He said the 1996 Illegal Immigration Reform and Immigrant Responsibility Act which says anyone “not lawfully present” is not eligible for “any postsecondary education benefit” based solely on residency. And that, said Jones, includes in-state tuition.

Regent Rick Myers acknowledged that potentially leaves in question whether a 150 percent tuition for DACA recipients would pass legal muster.

“That’s why we’re going to have to get our legal counsel and go through this,” he said. “Our intent is to try to do the right thing within the law.”

But Myers made it clear that, on a personal level, he wants to do what he can to keep tuition for DACA recipients as low as possible.

“These students are an asset to the state,” he said.

“They grew up here in the state and we educate them through K through 12,” Myers continued. “I’d like to see us continue to educate them and let them realize their potential and help our state be more competitive.”

Regent Jay Heiler said he believes that the regents need not charge full out-of-state tuition no matter what the Supreme Court ultimately rules. He said several other states, also governed by federal immigration laws, allow DACA recipients to attend school paying residential rates.

Jones acknowledged as much, noting that California, New Mexico and Colorado have decided that local high-school graduates can get in-state tuition.

Whatever the Supreme Court rules on the Maricopa colleges policy will have ripple effects beyond the regents with its estimated 240 DACA recipients getting resident tuition. Other community colleges in Arizona also offer discounted tuition to DACA recipients.

DACA is a 2012 creation of the Obama administration, allowing those who arrived in this country illegally as children to remain if they meet certain other conditions. They also are issued Employment Authorization Documents permitting them to work.

It was those factors that first caused the Maricopa colleges governing board to conclude they were lawfully present in the country and entitled to resident tuition. The regents followed suit, implementing in-state tuition for DACA recipients, after a trial judge agreed with the college, rebuffing a bid by the attorney general’s office to overturn that ruling.

But Jones, in writing the appellate court ruling, said that does not legalize their presence in the country.

“DACA policy … permits the issuance of EADs so recipients may lawfully sustain themselves while in this country,” he wrote. “These benefits do not translate into the recipients’ eligibility for in-state tuition or other state and local public benefits.”

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