Saying they are comfortable with their decision, members of the Board of Regents told Attorney General Mark Brnovich Thursday they have no plans to hike tuition for dreamers — at least not until the Supreme Court orders them to do it.
In a letter to Michael Bailey, Brnovich’s chief deputy, regents President Eileen Klein urged him not to pursue legal action against the board over the policy to allow those in the federal Deferred Action for Childhood Arrivals program to pay in-state tuition if they meet other residency requirements.
She acknowledged that the Court of Appeals ruled just last month that an identical policy by the Maricopa County Community College District governing board is illegal. In that lawsuit brought by the attorney general’s office, the judges said that policy violates both state and federal law.
But Klein pointed out the Maricopa colleges are asking the state Supreme Court to overturn that decision. And she urged Bailey to wait until that ruling comes out — something that could take months — before proceeding against the university system.
Bailey, in his original demand last month for the regents to explain their policy, had indicated that, in general, his office prefers to await a final court ruling in pending cases before looking for others to sue over the same issue.
What’s different this time, though, is that former state Senate President Russell Pearce is threatening to sue if Brnovich does not.
He can do that because Arizona law specifically allows for citizen lawsuits to enforce the law if state officials do not act within 60 days of a demand. And that deadline is Sept. 9.
Judicial Watch attorney Jim Peterson, representing Pearce, renewed that threat Thursday after reading Klein’s letter to Bailey.
“The Board of Regents has thumbed its nose at the attorney general and the law,” he told Capitol Media Services. “If the attorney general does not act, Russell Pearce and Judicial Watch will.”
Board Chairman Bill Ridenour acknowledged the Judicial Watch threat. But he said board members are not concerned.
“Anyone can file litigation,” he said. But Ridenour said it would be a largely fruitless act.
“By the time they file litigation and we go through all the time lapses in the lower court, the Arizona Supreme Court surely will give us some direction by that time,” he said. And Klein said if the high court agrees with the appellate panel, he said the regents will act accordingly and scrap the in-state tuition policy.
Klein argued that it makes sense to await a Supreme Court decision before a new lawsuit is filed — and before her board reconsiders its policy.
“Immediate termination of in-state tuition would have a devastating impact on hundreds of innocent young people,” she said in her letter to Bailey. And with the Maricopa case before the high court, Klein said filing suit against the regents “would be an imprudent use of state resources.”
There’s another factor, however, at work.
In his July letter to Brnovich, Peterson pointed out that the law allowing citizen lawsuit when the attorney general refuses to act not only provides for the state to recover any improper expenditures — in this case, the difference between what dreamers would have to pay if they were not charged in-state tuition — but also costs and fees that could be equal to 40 percent of the amount recovered.
And there’s something else: a threat that the regents could be found personally liable for what the state failed to collect from the dreamers.
“We have discussed that at great length,” Ridenour said. “Any time that rears its ugly head, then the regents surely want to know what kind of standing that they have.”
But he said board members do not believe their own finances are at risk.
“There’s a statute that says the regents have immunity from personal liability when they’re acting in good faith,” Ridenour said. And he said it is squarely within the responsibility of the board to set tuition.
And Ridenour, who is an attorney, said the fact that the Court of Appeals declared that dreamers are not entitled to in-state tuition does not undermine the “good faith” defense of the board.
“It’s not the final authority,” he said.
The legal fight is over the scope of a 2006 voter-approved law that 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.”
In 2012, however, the Obama administration created the DACA program allowing people who arrived in this country illegally to remain if they meet certain conditions. DACA recipients also are issued documents allowing them to work.
Based on that, the Maricopa colleges governing board concluded these students are here legally, a contention backed up in a 2015 when Maricopa County Superior Court Judge Arthur Anderson threw out the lawsuit against the colleges by the attorney general.
It was after that ruling that the regents agreed to follow suit. Earlier this year, though, the Court of Appeals disagreed, leaving the final word to the Supreme Court.
If the high court agrees with the attorney general, the regents already have a fallback position in place. It entitles people who do not qualify for in-state tuition but have graduated from an Arizona high school to pay a tuition equal to 150 percent of the rate charged to residents.
Board members said that satisfies the 2006 law because that figure, on average, covers the actual cost of tuition without any subsidy of state tax dollars.
But Klein, in her letter to Bailey, said that is really not an answer.
“Charging DACA students non-resident tuition at the 150 percent rate or higher does not mean Arizona will collect more money than if it charges them in-state tuition,” she said. “The reality is that most DACA students will have to end or seriously curtail their college education because they will not be able to afford attendance at our universities.”