State Attorney General Mark Brnovich can bring back a claim in court to recover public money that he claims the Arizona Board of Regents illegally spent when granting in-state tuition to some public university students who have no immigration status.
No public university or community college in Arizona currently grants in-state tuition to undocumented immigrants. But the Maricopa County Community College District did for over four years and so did the state’s three public universities for about two years.
The claim is part of a larger case where Brnovich sought to expand the scope of his office, which the state Supreme Court rejected on Nov. 25. Brnovich claims that ABOR illegally expended public funds when in 2015 it allowed some state residents, who have a federally-issued work permit and protections from deportation through a 2012 program known as Deferred Action for Childhood Arrivals, to pay in-state tuition.
A lower court had dismissed that illegal expenditures claim, but the Arizona Supreme Court allowed for the issue to be reconsidered.
Oscar Hernandez, a Phoenix resident and Arizona State University graduate, was one of the DACA students who benefited from in-state tuition rates. He attended Paradise Valley Community College and transferred to ASU in 2016. He received a full-ride scholarship through a national organization and graduated in 2018 with a degree in public policy.
“Ultimately, the victory for them is that we are not getting in-state tuition and that’s the case already. We also don’t get financial aid,” he said. “If any DACA recipient, if any undocumented student is going to college right now it’s because they deserve to be there, it’s because they are working really hard, and they are doing it. And they’re still doing it without the help of the state.”
Hernandez said it’s difficult to grasp why Brnovich would go after ABOR for helping more Arizona residents get an affordable education.
“It’s not about policy, it’s not about logic, it’s not about even trends. It’s just about what people think we deserve,” Hernandez said. “No matter what we do, no matter how much support from the American people we have, no matter how, in some cases, we can do more than an average citizen, they don’t want us to succeed. This state shows us that.”
After graduating, Hernandez taught in a public elementary school for two years. He is now preparing to apply for law school, he said.
The issue of in-state tuition for DACA recipients, also known as dreamers, has long been litigated in Arizona. ABOR wasn’t a leader in the issue.
When the Maricopa County Community College Districts granted in-state tuition to students with DACA, which opened for application in August 2012, ABOR did nothing.
In 2013, then state Attorney General Tom Horne sued the community college district for that tuition practice, arguing that granting in-state tuition to DACA students living in Arizona violated a 2006 voter-approved law that only allows citizens or residents with a lawful immigration status to classify for in-state tuition.
While the county’s community college system allowed Arizona residents with DACA to pay in-state rates for their studies, the state’s three public universities still charged them significantly higher rates of tuition.
As a 2013 lawsuit challenging the MCCCD tuition practice went through the Maricopa County Superior Court, local community leaders – many of them community college students and high schoolers with DACA – advocated for the ABOR, which oversees the three public universities, to allow state residents with DACA to pay in-state tuition rates.
ABOR instead waited for the courts.
It wasn’t until May 2015, when a Superior Court judge favored the community colleges in finding that DACA recipients meet residency requirements under Arizona law for in-state tuition, that ABOR granted resident rates to DACA students.
That only lasted until 2017, when the state appeals court reversed the lower court’s ruling. In 2018, the state Supreme Court affirmed the appeals court finding.
At Arizona State University, there were about 93 students with DACA enrolled there in the fall of 2015, 188 in the fall of 2016 and 259 in the fall of 2017, according to an ASU spokesperson.
In a statement, ABOR Chair Larry Penley said he’s confident the remaining illegal expenditure issue will be resolved in their favor.
Bronovich’s office didn’t respond to a request for the amount of the alleged illegal expenditure.
“Our lawsuit has always been about sky-rocketing tuition that’s effecting (sic) hard-working Arizona families and taxpayers and about ensuring our public universities are operating within the law,” said spokeswoman Katie Conner in an email.