Dreamers at Arizona universities will still pay in-state tuition – for now

Dreamers at the state’s three universities will continue paying the same tuition as other Arizona residents, at least for the time being.

The Board of Regents voted Thursday to continue its policy of interpreting Arizona law to say that those in the Deferred Action for Childhood Arrivals are entitled to the same legal – and financial – considerations as anyone else who meets state residency requirements.

Thursday’s vote comes a week after the Arizona Court of Appeals concluded that a similar policy by the Maricopa community colleges violates Proposition 300, a 2006 voter-approved law that says those not in the country legally are not entitled to in-state tuition. The same law prohibits tuition waivers, scholarships or any other aid funded with public dollars.

Bill Ridenour
Bill Ridenour

But regents Chairman Bill Ridenour noted that the Maricopa board voted Tuesday to appeal that ruling to the Arizona Supreme Court. Ridenour, who called the appellate court decision a “difficult lose” for DACA recipients, said he wants to wait to see what the state’s high court decides before making any policy changes.

Ridenour also noted that students begin returning to campuses for the fall semester in August.

“We are very appreciative of the need for some kind of certainty for those students with our universities,” he said. Ridenour said there is no reason that the current tuition policy, adopted two years ago, should be scrapped unless and until there’s a final Supreme Court ruling.

Only regent Jay Heiler voted against keeping tuition for dreamers at the in-state rate.

“We have a Court of Appeals decision founded largely in state law as enacted by the voters,” he said. “I feel this board needs to honor that.”

Jay Heiler
Jay Heiler

But Heiler does not want to require DACA recipients – there are less than 300 in the state university system – to pay the full out-of-state rate.

He pointed out that the board already has a policy on the books allowing students who graduate from Arizona high schools but do not meet other residency requirements to pay a “differentiated rate.”

In essence, this is designed to cover the actual costs of educating students, avoiding the prohibition against subsidized tuition in Proposition 300. The regents have set that rate at 150 percent of in-state tuition.

It is not being used by DACA recipients because the regents decided to offer in-state tuition after a trial judge ruled in favor of the policy adopted by Maricopa County colleges.

Heiler found himself in the minority as other regents said they were content to leave the tuition for dreamers where it is right now.

“I believe that, until we have settled law that is contrary to our ability to do this, that it’s the right thing for us to continue to offer the in-state tuition,” said Rick Myers.

Regent Ron Shoopman agreed.

“One of the things this board strongly believes is that we want to provide access and as low a possible tuition as possible within the confines of the reality that we find ourselves, so all students who attend the universities and especially those that graduate have better futures guaranteed,” he said. “We want that for all our young people.”

And Ram Krishna said there’s another fact to consider.

He pointed out that both the University of Arizona and Northern Arizona University have programs that are designed to guarantee incoming students that their tuition will remain unchanged for the four years to get an undergraduate degree.

“We need to comply with that,” Krishna said.

Arizona State University has no such policy but has promised to limit year-over-year increases.

Ridenour, who is an attorney, said after Thursday’s meeting he is making no predictions on what the Supreme Court will conclude.

“I think it will be well briefed,” he said. Ridenour said he expects input not only from the parties involved — the Maricopa colleges, which implemented the policy, and Attorney General’s Office, which challenged it — but also others who have an interest in the outcome.

“Obviously, there’s a lot of politics involved,” he said. “There’s laws involved.”

He agreed with Heiler on one key point: The best outcome would be for the federal government to clarify the status of DACA recipients.

It was the Obama administration that enacted the DACA program in 2012, entitling those who arrived in this country illegally as children to remain and to work.

But Brnovich argued – and the appellate court agreed – that decision by the administration not to deport dreamers did not give them legal immigration status, making them ineligible for in-state tuition.

During the presidential campaign, Donald Trump vowed to rescind DACA on his first day in office. But now, five months later, the program not only remains but his administration has said it continues to study what to do next.

There are those, however, who are pressuring the Trump administration to live up to that promise.

In a letter Thursday to the U.S. Attorney General Jeff Sessions, the attorneys general from 10 states urged that the DACA be phased out because it was enacted “without any statutory authorization from Congress.”

Arizona Attorney General Mark Brnovich was not among those who signed the letter. But Brnovich has argued in court documents seeking to deny driver’s licenses to dreamers that there is no legal authority for DACA.

Jay Heiler: Doing civic work without being in government

Jay Heiler

Jay Heiler could be caught in the middle of a contentious U.S. Senate race right now. Instead, he joined boutique law firm Beus Gilbert PLLC.

A member of the Arizona Board of Regents, a charter school entrepreneur and former chief of staff to Gov. Fife Symington, Heiler contemplated challenging U.S. Sen. Jeff Flake for his seat last fall. But that was before Flake announced his retirement.

Now Heiler, 58, is perfectly content to cheer on Republican nominee Martha McSally from the sidelines as he starts a new chapter in his life. Heiler joined Beus Gilbert in July, carrying over his consulting work to the firm that specializes in real estate law and commercial litigation.

Cap Times Q&AWhat will you be doing at Beus Gilbert?

I’m going to be practicing law across several different fields with both sides of the practice, which is commercial litigation on one hand and real estate and entitlement law on the other. Then, I’m also bringing my own practice into the firm of government affairs and government relations, which really overlaps both to some degree. It just seemed like a really good fit and really great people to work with.

Where do your passions lie in the legal world?

The highest and best use of the law is to right wrongs, to advance justice, and in the public sector, to improve the life of the community and the lives of individuals in the community. St. Thomas Aquinas said the law is an ordinance for the common good made by those who have care over the community. That’s always seemed like a pretty good definition to me.

You came from a solo practice, correct?

I was just doing consulting work, but I went and activated my law license and I’m now back at it. I was an assistant attorney general when I got out of school. I was a prosecutor originally. I was in journalism as an undergraduate, then went to law school, worked as a prosecutor, then I went back into journalism and wrote editorials at the newspaper in Richmond, Virginia, The Richmond Times-Dispatch.

All those years when I was practicing on my own, I never really wanted to create a firm because I didn’t want everything that came along with that. I really just wanted to operate as long as I could as a lone wolf and keep my time free and my schedule flexible to build Great Hearts, which is a charter school organization. I’ve been at that for about 16 years now.

Why was now the right time to join a firm?

The fact is that this particular firm is very appealing because of the human elements involved and the practice fields the firm is best of class in. It’s also that phase of my professional journey where I just want to interact more with other leading professionals and build a great institution.

Speaking of Great Hearts, what do you make of the recent calls for increased transparency in the charter school system?

Lying at the bottom of all that conversation, which can be a productive conversation, is really a lot of tension over for-profit educational models in K-12. Great Hearts is not a for-profit educational model. Great Hearts is a nonprofit. But it is unlike the other, larger growth charter organizations in Arizona in that way. The construct of for-profit education is well known and has been around for many decades in higher education and it has a varied history. But the idea is still relatively new of for-profit presence at least as the operator of the school in K-12 education. I think everybody’s processing that now and having a discussion about it, which is good. It’s a discussion that should be held.

How did you start Great Hearts?

The idea came from understanding that charter schools were a market concept and the idea behind them was the introduction of some for market competition into K-12 as a means of lifting it. But as I considered doing that, I realized the way markets work is with scale and brands. There are always leaders in markets that make the most impact and achieve the most in a given sector. So the idea was to bring to the Phoenix community a scalable education model that would not only be better than public schools on offer, it would in fact, be better than private schools on offer.

You used to work for Symington. Do you ever miss working in the public sector?

Part of the reason I wanted to start Great Hearts was because I missed that. I wanted to create a valuable civic work that one could do without working in government and that’s how I’ve always thought of Great Hearts. It has always been in my nature that when I looked ahead to when I was old or near the end of my life, I wanted to have done something that mattered.

How did you meet Symington?

We were introduced by the then-editor of the editorial pages of The Republic, who was a guy named Bill Cheshire. Fife was having a tough first year in office at that point so we met and we just immediately hit it off.

What do you make of the news that Symington may run for the U.S. Senate?

I think he’s still got it in his system, too. But I think there’s still lots of turns in that road, starting with what happens in this Senate race and what happens with Senator Kyl. But if Fife decides to run for the Senate, that’ll be worth watching.

You recently considered running for the U.S. Senate, why?

I was asked to consider that at that time because it appeared many Republican voters were going to be looking for an alternative. So it wasn’t something that I had been planning, but I didn’t say no. And once you don’t say no, the process starts. It was something that I was very seriously considering, but when Senator Flake withdrew as early as he did, that left plenty of time for other candidates to also enter the picture. I truly believe that Martha [McSally] was an outstanding candidate and in many regards, a better candidate than I would be.

Regent considers run for U.S. Senate

Republican Jay Heiler, a regent and the founder of charter school operation Great Hearts Academies, is considering a run for U.S. Senate against Republican incumbent Jeff Flake.

Heiler would join former state senator Kelli Ward in the Republican primary against Flake. Last week, U.S. Rep. Kyrsten Sinema announced her bid for Senate, and two other Democrats, Deedra Abboud and Jim Moss, are also running.

Recent polling numbers have shown Flake in a vulnerable position against other Republicans and Democrats.

Heiler said he thinks the country is facing a lot of serious issues, and people have a lot of dissatisfaction with the political class right now.

“This is not something that I have ever pointed toward or planned for, but given all the circumstances right now, it’s something I feel called to consider,” he said.

But he didn’t want to say anything about other candidates, including Flake, saying there would be plenty of time for that if he decided to run.

He said he expected to decide on whether to run within the next month.

‘Dreamers’ lose at state Supreme Court

In this photo taken outside the Arizona State Supreme Court in Phoenix, Monday, April 2, 2018, immigrant students with deferred deportation status hold a banner in support asking the Supreme Court to rule in favor of continuing their access to in-state tuition costs. (AP Photo/Anita Snow)
In this photo taken outside the Arizona State Supreme Court in Phoenix, Monday, April 2, 2018, immigrant students with deferred deportation status hold a banner in support asking the Supreme Court to rule in favor of continuing their access to in-state tuition costs. (AP Photo/Anita Snow)

Thousands of dreamers are going to have to pay more next year if they want to attend any of the state’s three universities or community colleges.

In a brief order Monday, the Arizona Supreme Court ruled that it is illegal to allow those in the Deferred Action for Childhood Arrivals program to pay the same tuition as other state residents.

Monday’s order is not a major surprise. During a court hearing last week the justices had a series of pointed questions for Mary O’Grady, who was defending the policy enacted by the Maricopa Community Colleges of permitting dreamers to pay in-state tuition.

What is surprising is the speed at which the seven-member court reached a conclusion. But the justices had hinted at their desire for some finality on the issue, and soon, noting that the colleges and universities were currently setting tuition for the coming school year.

Despite Monday’s order, there may still be some financial help of sorts for DACA recipients, at least at the state university system.

The Board of Regents already has a policy on the books, established before the universities begin charging resident tuition,  that sets charges at 150 percent of the in-state rate for any student who graduated from an Arizona high school after attending school here for at least three years.

That policy was crafted by Regent Jay Heiler. He said that does not run afoul of the 2006 voter-approved law at issue in the case before the Supreme Court which spells out that any person who is not a U.S. citizen or “legal resident” or is “without lawful immigration status” is ineligible to be charged the same tuition at state colleges and universities available to residents.

More to the point, Heiler said that 150 percent figure appears to cover the actual cost of instruction. And that, he said, means the state and its taxpayers would not be illegally subsidizing the cost of education for dreamers.

That would still be a financial hit for those affected, pushing undergraduate tuition at the University of Arizona, for example, above $18,000. By contrast, tuition and mandatory fees for those who started at UA last year is $12,228.

It is still far better, however, than what it would cost if these students were forced to pay full out-of-state tuition of more than $32,000.

But this policy, if enacted, could result in further litigation.

First, the policy requires that the student be “lawfully present” in Arizona.

That is a different legal standard than the 2006 law which deals with “lawful immigration status.” But Regents Chairman Bill Ridenour, who is an attorney, said he believes that DACA recipients are, in fact, lawfully present.

That comes down to the nature of DACA.

Instituted by the Obama administration, it allows those who arrived in this country illegally as children to remain if they meet certain other conditions. Aside from exempting them from fear of deportation, it also allows them to work in this country legally.

That provides some basis for Ridenour’s belief that dreamers will qualify.

For example, there is a list of frequently asked questions about DACA published by the U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security.

“An individual who has received deferred action is authorized by DHS to be present in the United States,” the document says.

There also is a state law that lists the documents that satisfy a person’s obligation to prove he or she is lawfully present in this country. That includes “a United States citizenship and immigration services employment authorization document” — precisely the document issued to DACA recipients.

Where it all fell apart was the attempt by O’Grady, in defending in-state tuition for dreamers, to convince the Supreme Court that “lawful presence” means the same thing as “lawful immigration status,” the language used in the 2006 law to deny in-state tuition to dreamers.

The legal fight started shortly after the DACA program was instituted. The Maricopa colleges governing board, depending on those employment authorization documents, voted to allow DACA recipients to attend paying in-state tuition.

Tom Horne, then the attorney general, filed suit.

In 2015, Maricopa County Superior Court Judge Arthur Anderson sided with the colleges, citing those employment documents.

Based on that ruling, the regents followed suit and instituted their own policy allowing DACA recipients to pay in-state tuition. Other community colleges also have instituted similar policies.

The Court of Appeals, however, said the 2006 ballot measure is limited solely to those with “lawful immigration status.”

Appellate Judge Kenton Jones, writing for the court, said the decisions by the Obama administration to let those who arrived in this country illegally as children to remain and work “do not translate into the recipients eligibility for in-state tuition or other state or local public benefits.”

It is that ruling the Supreme Court upheld on Monday.

Ridenour said there is a simple answer for the whole problem: having Congress take action on a plan that would provide lawful immigration status to DACA recipients.