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‘Dreamers’ tuition case turns on conflicts over definitions

The question of how much it will cost “dreamers” to get a higher education in Arizona could turn on who the state Supreme Court decides is in this country with “lawful immigration status.”

In new legal filings, the attorney for the Maricopa community colleges told the justices that phrase is the same as “lawful presence.” Mary O’Grady said those in the Deferred Action for Childhood Arrivals program fit that definition because the Department of Homeland Security has — at least for the moment — allowed them to not only remain without fear of deportation but also to work.

But Attorney General Mark Brnovich, in his own new legal briefs, contends that acceptance into the DACA program does not translate into being in this country legally.

All that is important because Proposition 300, approved by voters in 2006, specifically says that anyone who is not a citizen or legal resident or who is “without lawful immigration status is not entitled to classification as an in-state student.”

Brnovich contends — and the Court of Appeals agreed — that does not entitle dreamers to pay the lower tuition being charged by the Maricopa colleges, some other community colleges and the state university system. The Supreme Court has agreed to hear arguments early next month and reach its own conclusion.

In some ways the fight is less about the law and more about who gets to define what some words mean.

Mary O'Grady

Mary O’Grady

O’Grady points out that Proposition 300 doesn’t actually have a definition of “lawful immigration status.”

Instead, she said, it makes a reference to the 1996 federal Illegal Immigrant Reform and Immigrant Responsibility Act. And that law talks about those who are not “lawfully present” in this country.

She also noted that another provision of Proposition 300 requires colleges and universities to report students who are denied financial assistance because they were “not lawfully present.”

What makes that significant, O’Grady argues, is DACA.

That program, approved by the Obama administration in 2012, specifically allows those in the program to not only remain without fear of deportation but also to be issued Employment Authorization Documents entitling them to work here.

“Because DACA recipients’ stays in the United States are authorized by the Department of Homeland Security while they are in the DACA program, they are lawfully present under this statutory definition,” O’Grady wrote. And that, in turn, allows them to attend community colleges and universities paying only in-state tuition if they meet other residency requirements.

Brnovich, for his part, urged the justices to reject what he sees as a stretch in verbiage.

He told the justices that the key elements of the 2006 law limit in-state tuition to only those with “lawful immigration status.” And Brnovich said they should not accept O’Grady’s bid to conflate that phrase “lawful presence.”

“If Proposition 300 is to be rewritten in the name of absurdity, the substantive provisions should control the reporting provisions — not the other way around,” he said.

What the justices decide ultimately will affect more than the Maricopa colleges who were sued in 2013 by Tom Horne, Brnovich’s predecessor, after the board concluded that DACA recipients, by virtue of the EADs they possess, are entitled to the presumption of being here legally.

Two years later, Maricopa County Superior Court Judge Arthur Anderson sided with the colleges. That, in turn, spurred the Arizona Board of Regents to establish a similar policy.

At last count, about 300 dreamers are attending one of the state’s three universities while paying in-state tuition.

The difference in costs is significant.

At the University of Arizona, for example, current tuition and mandatory fees for new students this year is $12,228 for those who qualify as residents. The figure for new out-of-state students is $35,658.

Pima Community College also now offers in-state tuition to DACA recipients.

In her legal arguments, O’Grady conceded that one argument presented to voters in 2006 to approve Proposition 300 was that the state should not be subsidizing the education of individuals brought to this country illegally as children. And she said that when the measure became law, even the Maricopa colleges never argued for in-state tuition.

But O’Grady said all that is now irrelevant because DACA did not exist in 2006, repeating her contention that those in the program are “here with the approval of the United States.”

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