By Howard Fischer
Capitol Media Services
PHOENIX -- The Trump administration is suing the Arizona Board of Regents over its policy of allowing people who are not in this country to pay the same tuition as all other Arizona residents.
In legal papers filed in federal court, the Department of Justice says the policy, approved by Arizona voters in 2022, violates a 1998 federal law.
It also runs afoul of a sweeping executive order issued last year by President Trump directing the agency to take action against any state that has practices that give benefits to aliens that are not available to all American citizens. That, the order says, includes "state laws that provide in-state higher education tuition to aliens but not to out-of-state American citizens.''
Similar lawsuits have been filed against more than a dozen other states, according to Assistant Attorney General Garrett Greene who signed the new lawsuit. And he said judges there have voided those policies in five states.
There is no question but that Proposition 308, the 2022 ballot measure, allows certain individuals who have graduated from a high school in Arizona and meet other conditions to pay the same tuition available to state residents, regardless of immigration status. At the same time, U.S. citizens from another state can be required to pay the higher non-resident tuition.
More to the point, none of that is linked to the student's legal status. In fact, one provision in that voter-approved law specifically says that "persons without lawful immigration status are eligible for in-state tuition.''
Attorney General Kris Mayes, anticipating such a lawsuit, actually issued a legal opinion last year contending that the wording of the 2022 ballot measure is sufficiently different than what is forbidden by federal law to allow it to withstand challenge.
The key, she wrote, is that eligibility for in-state tuition is not based on being an Arizona resident. Instead, to qualify, someone needed to have attended an Arizona high school "while physically present in this state for at least two years'' and having obtained a diploma in Arizona.
What that means, Mayes said, is that it is not residency that triggers eligibility. Therefore, she said, it does not run afoul of the federal law that prohibits states from offering in-state tuition to its Arizona residents, regardless of legal status, while denying the same benefit to U.S. residents from elsewhere.
"Although many people who meet the eligibility requirements will also be residents, not all will be,'' she said.
"For example, a student could meet the statute's attendance and graduation requirement, move to another state, and then plan to return to Arizona for college,'' Mayes wrote in her legal opinion. "That student would not be a current Arizona resident, but would be eligible for in-state tuition.''
She also said the law allows in-state tuition for someone who crosses into Arizona every day from another state to attend school here despite being a legal resident of that other state.
Conversely, she said, some Arizona residents will not be eligible for in-state tuition. That, said Mayes could be an Arizona resident who did not attend high school for the two years required by the law and did not graduate from high school here.
The Department of Justice, however, says the result is the same: Arizona residents in this country without legal status get to pay a rate of tuition lower than U.S. citizens who are residents of other states.
And then there's the fact that the federal government says that, in crafting Prop 308, state lawmakers knew exactly what they were doing. The voter-approved measure specifically says that "persons without lawful immigration status are eligible for in-state tuition.''
It's not just the Board of Regents that is being sued over the tuition policies at the three universities it oversees.
The new lawsuit also asks a federal judge to overturn Prop. 308 as violating the supremacy of federal laws on immigration. And that, according to federal attorneys, also would override policies of the Maricopa and Pima community colleges that base financial aid on the same basis that the universities decide who gets to pay in-state tuition, meaning Arizona high school graduation and not immigration status.
The issue of tuition for those who are not citizens traces its roots back to the Obama administration which created the Deferred Action for Childhood Arrivals program in 2012. It allows people who arrived in this country illegally as children before 2007 -- colloquially called "Dreamers'' -- to remain and even to work if they meet certain conditions.
Based on that, the Maricopa community college system and, later, the Arizona Board of Regents agreed to let DACA recipients pay in-state tuition. But the Arizona Supreme Court ruled in 2018 that is precluded by Proposition 300, a 2006 ballot measure that denies various public benefits to those not in the country legally -- including any form of subsidized tuition.
Proposition 308, approved by a margin of 51.2% to 48.8%, was crafted to create an exception.
In a prepared statement, Mayes took a swat at the administration for filing suit, not just here but against other states.
"This case is nothing more than a political vendetta aimed at undermining the will of Arizona voters and harming kids who have done nothing wrong,'' she said.
More to the point for Arizona Mayes said she still contends that nothing in Prop. 308 runs afoul of federal law.
"And that is why the federal government's claims are faulty and will be rejected by the courts,'' she said.
Regents spokeswoman Megan Gilbertson said the board is carrying out the law enacted by the state and approved by the voters.
"We are reviewing the lawsuit and will work closely with Arizona leaders on the appropriate next steps,'' she said.
Gilbertson said she did not have access to any firm numbers about how many students fit into the category of getting in-state tuition but not having legal status.
When the ballot measure was being debated in 2022, the American Immigration Council which favored Prop. 308 estimated that the lower tuition provision would mean that more than 3,600 dreamers would be able to enroll in college. The Department of Justice cited that report in its lawsuit.
But what is not in the lawsuit is another finding by the council that the ability of college-educated people to qualify for better jobs would generate an additional $4.9 million annually in federal income taxes and state and local taxes.
The lawsuit also cites a report released in January by the Arizona Center for Investigative Reporting which asked multiple colleges about how many undocumented students received in-state tuition.
That report noted that schools are not required to calculate that number. But it says that it did get information showing that about 432 such students at Arizona State University fell into that category, with nearly 200 at Pima Community College, and fewer than 70 at the University of Arizona.
The Department of Justice concluded that meant undocumented students at ASU cumulatively received close to $10.5 million in reduced tuition based on the $24,600 difference between in-state and out-of-state rates.
A spokesman for Pima Community College said the school had no comment. There was no immediate response from the Maricopa colleges.
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