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Brnovich threatens ABOR with suit over ‘dreamer’ policy

With the threat of a lawsuit looming, Attorney General Mark Brnovich wants members of the Board of Regents to explain why they think they can let “dreamers” pay the same tuition as other Arizona residents.

In a letter obtained by Capitol Media Services, Michael Bailey, Brnovich’s chief deputy, told regents President Eileen Klein that his office is considering what legal action to take against the board for a policy that it considers illegal. That conclusion was buttressed by a recent ruling by the state Court of Appeals voiding a similar tuition policy of the Maricopa community colleges.



Bailey indicated that, everything else being equal, his boss generally would prefer not to open up a new legal battle with the regents, at least not until the Arizona Supreme Court considers the issue and makes a final determination.

But he told Klein that it may not matter what Brnovich thinks now that former state Sen. Russell Pearce and Justice Watch have said they will sue to overturn the regents’ policy if the attorney general’s office does not. And Bailey warned that could have sharp implications.

“We feel compelled to make you aware that ABOR may be at risk of liability for improper public expenditures as a result of its present tuition policy,” Bailey wrote. “Moreover, ABOR members could face personal liability for failure to collect tuition in compliance with state law.”

For the moment, Klein isn’t saying what she will advise the board — or tell Brnovich.

“We will reply to the letter in a timely manner,” she told Capitol Media Services. Bailey said he wants an answer by Aug. 10.

Eileen Klein

Eileen Klein

The fight has been years in the making.

A 2006 voter-approved law makes in-state tuition and state-financed aid off limits to those “without lawful immigration status.”

In 2012, however, the Obama administration approved the Deferred Action for Childhood Arrivals program. It allows those who arrived in this country illegally as children to remain without fear of deportation if they meet certain circumstances.

DACA recipients also are issued Employment Authorization Documents entitling them to work here legally.

Based on that, the Maricopa colleges concluded they were entitled to the same in-state tuition as others who meet residency standards.

That conclusion was challenged by Tom Horne, Brnovich’s predecessor. But in 2015, after a Maricopa County Superior Court judge sided with the college, the regents voted to follow suit.

Earlier this year, however, the Court of Appeals unanimously overturned that ruling. And when the Maricopa college board voted to seek Supreme Court review, the regents opted to leave their own policy in place, at least for now.

The possibility of a lawsuit against the regents for that decision should come as no surprise.

That vote to retain the tuition policy was not unanimous: Regent Jay Heiler warned colleagues that ignoring the appellate court decision carries legal risks for the board.

Bailey, in his letter to Klein, specifically asked for “an explanation of any legal authority demonstrating that the Arizona Board of Regents’ position is not in contravention of Arizona law.” That, he said, will go to what action, if any the attorney general will take against the regents.

Bailey conceded that his agency has “a general practice of not initiating new legal action based on a favorable Court of Appeals decision … and where there is an appeal, until the Arizona Supreme Court has spoken.” And it could be months until the high court makes a decision.

All that, however, is complicated by that outside threat of litigation.

In a letter earlier this month, Judicial Watch attorney James Peterson told Brnovich the regents policy is in “open defiance of the law and controlling legal precedent.” Peterson asked the attorney general to take action against the board.

Simply ignoring the demand would not make the issue go away: Arizona law specifically allows for citizen lawsuits to enforce the law if state officials do not act within 60 days of a demand. That would be up on Sept. 9.

Ryan Anderson, a spokesman for Brnovich, said any decision his boss makes on whether or not to sue the regents will not be driven by Pearce and Judicial Watch.

“We’re not going to be bullied or pressured into action by an outside group,” Anderson said. But he acknowledged that the demand letter has created an “artificial timeline” that will force Brnovich to reach some conclusion earlier than he might have otherwise.

“The timeline has moved up, perhaps, or at least considerations are a little different given the timeline that Judicial Watch has put on this matter,” he said.

For practical reasons, Brnovich may have to act even quicker than that Sept. 9 deadline.

Classes begin in mid-August. And once students have paid their tuition it may be difficult to change the policy and try to demand additional dollars from them.

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