Attorney general demands explanation of Arizona's tuition policy for 'dreamers'

PHOENIX — With the threat of a lawsuit looming, the state’s attorney general wants regents to explain why they believe “dreamers” are legally entitled to pay the same tuition as other Arizona residents.

Attorney General Mark Brnovich’s office is considering legal action against the Arizona Board of Regents for a policy it considers illegal, chief deputy Michael Bailey told regents President Eileen Klein in a letter. A recent ruling by the state Court of Appeals voided a similar tuition policy of the Maricopa community colleges.

Bailey indicated that, everything else being equal, Brnovich would prefer not to open up a new legal battle against 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 said. Bailey said he wants an answer by Aug. 10.

The fight has been years in the making.

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

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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, known as dreamers, 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 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.”