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Russell Pearce threatens suit over ABOR’s ‘dreamers’ policy

Russell Pearce

Russell Pearce (Photo by Howard Fischer/Capitol Media Services)

The prime architect of some of Arizona’s strongest laws aimed at illegal immigration is giving Attorney General Mark Brnovich 60 days to sue the Board of Regents over its policy to let “dreamers” attend school paying resident tuition or he will go to court himself.

Backed by the conservative legal advocacy group Judicial Watch, former state Senate President Russell Pearce claims that a 2006 voter-approved law requires that those not here legally can attend universities only if they pay full out-of-state tuition. And he said that a new ruling by the Court of Appeals striking down discounted tuition for dreamers in the Maricopa community colleges buttresses that argument.



In a letter Tuesday to Brnovich obtained by Capitol Media Services, attorney James Peterson claims the regents policy is in “open defiance of the law and controlling legal precedent.” Peterson wants the attorney general to seek a court order to immediately bar the regents from allowing students in the Deferred Action for Childhood Arrivals program from attending school paying the same tuition as other legal Arizona residents.

There was no immediate response from Brnovich who already is challenging the Maricopa colleges policy.

But it may not matter if the attorney general does not open a new legal front against the university system: Peterson, in his letter to Brnovich, points out that Arizona law specifically allows for citizen lawsuits to enforce the law if state officials do not.

The 2006 voter-approved law says someone who is “without lawful immigration status” is not entitled to in-state tuition at any state university or community college. It also makes off limits any tuition or fee waivers or any scholarships or financial assistance “subsidized or paid in whole or in part with state monies.”

It was approved by a 3-1 margin.

What’s at issue is the legal status of DACA recipients.

That program enacted by the Obama administration in 2012 allows those who came here illegally as children to remain if they meet other conditions. They also are given Employment Authorization Documents allowing them to work legally.

Based on that, the Maricopa governing board concluded they’re entitled to in-state tuition if they meet other residency requirements.

Brnovich’s predecessor, Tom Horne, sued, and Brnovich carried on the suit.

But in 2015 Maricopa County Superior Court Arthur Anderson concluded these students are “lawfully present.” And days later, the regents voted to follow suit, agreeing to in-state tuition for dreamers at the state’s three universities.

Pearce told Capitol Media Services that was a mistake.

“It was an illegal Superior Court ruling by a liberal judge who decided the law doesn’t matter,” he said. “You can’t have a legal residency if you’re not legally in this country.”

As it turned out, the Court of Appeals agreed. But the regents, in a 7-1 vote last month, decided to keep the current tuition policy in place until the Arizona Supreme Court weighs in.

Jay Heiler, the lone dissent, said Tuesday the threat of the regents being dragged into court should come as no surprise.

“That’s exactly what I was warning everyone else,” he said, noting he told his colleagues last month that ignoring the appellate court ruling carried a legal risk. And Heiler, who is an attorney, said if Brnovich or Judicial Watch sue, the regents are “on very tenuous ground.”

Pearce, first elected to the legislature in 2000 from Mesa, built a reputation on pushing legislation aimed at curbing illegal immigration. The capstone is likely SB 1070, a 2010 measure designed to give police more power to detain those who are not in this country legally.

While some sections were struck down by the U.S. Supreme Court, several remain. That includes what has been referred to as the “papers, please” provision, requiring police to question those they reasonably suspect are undocumented.

Pearce was ousted a year later in a recall election organized by those opposed to his policies.

Judicial Watch is best-known for its litigation and public information requests, usually attacking liberals and Democrats. It has derided the independent probe of ties between the Trump campaign and Russia and continues to demand access to emails that Democrat Hillary Clinton had on her personal server while she was secretary of state.

Less clear is what happens if Brnovich — or Judicial Watch — successfully gets a judge to force the regents to jettison their in-state tuition policy.

Heiler said he reads the 2006 law to allow the universities to charge dreamers a rate of 150 percent of resident tuition. He said that covers the actual cost of education, meaning there is no subsidy.

Pearce disagrees, saying he reads the law to allow those not considered to be here legally to attend universities or community colleges only if they pay the same rate charged to out-of-state students.

One comment

  1. Mr. Pearce is correct on all counts. It makes no difference what his political party is, his position is the law.

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