Arizona Regents Could Be “Personally Liable” For DACA In-State Tuition Decision

July 20, 2017

Eileen Klein, President Arizona Board of Regents
2020 N. Central Ave., Suite 230
Phoenix, AZ 85004-4593

Request for Written Explanation

Dear President Klein,

The Attorney General’s Office has been considering the appropriate action to take regarding ABOR and its tuition policies in light of these events and legal proceedings. Weighing heavily in this analysis is the Office’s general practice of not initiating new legal action based on a favorable Court of Appeals decision until a mandate has been issued and, where there is an appeal, until the Arizona Supreme Court has spoken. This practice serves the interests of justice and ensures efficient adjudication of issues.

Nevertheless, 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 policies. See A.R.S. § 35-212. Moreover, ABOR members could face personal liability for failure to collect tuition in compliance with state law. See, e.g., A.R.S. § 35-143. Finally, per the enclosed letter, private parties have provided formal notice of potential legal action against ABOR.

The Attorney General’ s Office requests that ABOR voluntarily provide a written summary of its position on the tuition policy. Please include an explanation of any legal authority demonstrating that ABOR’ s position is not in contravention of Arizona law. We ask you to provide a response no later than Thursday, August 10, 2017.

The Arizona Attorney General’s Office sent a letter to the Arizona Board of Regents this week in response to their decision in June to grant in-state tuition to Deferred Action for Childhood Arrivals (DACA) students. The Attorney General’s Office advised the regents that they could “face personal liability for failure to collect tuition in compliance with state law.”

The regents ignored the unanimous decision by the Court of Appeals in State v. MCCCD, and voted on June 29 to “sustain a tuition policy originally established in reliance on the Superior Court’ s erroneous ruling in the case,” wrote Attorney General staff referring to the ruling in Maricopa County Superior Court. The judge ruled that a DACA recipient, who presents an Employment Authorization Document and who meets Arizona law residency requirements, was eligible for resident tuition.

Maricopa County Superior Court Judge Arthur Anderson ruled that undocumented youths who came to the United States as children, known as DREAMERs are eligible to pay the same in-state tuition as other Arizona resident students at state schools. Anderson found that it is the federal government that determines who, and who is not, in the United States legally. Anderson found that illegal youth, who have employment authorization documents, have an “appropriate documentation of lawful presence.”

The Attorney General’s Office argued that the trial court ruling was based on a false premise that people, who had deferred action status through DACA, were legally in the country under federal immigration laws.

The Court of Appeals agreed. Writing for the three judge panel, Presiding Judge Kenton Jones concluded “that DACA recipients are not automatically eligible for in-state tuition benefits, but rather must look to Arizona’s statutory provisions regarding alien eligibility for in-state tuition benefits.”

Arizona’s statutory provision is embodied in Proposition 300. Proposition 300 was passed by Arizona voters in 2006, and prohibits public benefits for anyone living in Arizona without legal immigration status.

“Proposition 300 passed with over 70 percent of the vote, and it included eligibility standards for in-state tuition. I am sympathetic to all young adults looking to improve their lives, but as Attorney General my job is to defend the law and not second guess the will of Arizona voters,” said Arizona Attorney General Mark Brnovich at the time of the ruling.

On Thursday, the Attorney General’s Office requested that the Arizona Board of Regents (ABOR) “voluntarily provide a written summary of its position on the tuition policy.” The Attorney General requested “an explanation of any legal authority demonstrating that ABOR’s position is not in contravention of Arizona law.”

ABOR was given until Thursday, August 10, 2017 to provide a response.

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