Regents criticized for allowing 'dreamers' to pay in-state tuition

Jay Heiler and Russell Pearce

Jay Heiler and Russell Pearce

PHOENIX — A five-year veteran of the Arizona Board of Regents said Friday his colleagues are wrong to keep allowing “dreamers” to pay the same in-state tuition at state universities as legal Arizona residents.

Jay Heiler said his colleagues, in deciding to keep the tuition policy in place for now, are acting in good faith. And he acknowledged that a June ruling by the state Court of Appeals voiding a similar policy by the Maricopa County Community College District is being appealed to the Arizona Supreme Court.

But Heiler is distancing himself from a letter, which was sent Thursday to the Attorney General’s Office by board President Eileen Klein on behalf of the other regents saying the policy on tuition for those in the Deferred Action for Childhood Arrivals program is justified and will remain. She also urged the Attorney General not to sue the board but instead wait for a ruling in the Maricopa case.

Put simply, Heiler, who is an attorney, said he believes the regents’ policy clearly violates a 2006 voter-approved law that prohibits the use of tax dollars to subsidize the tuition of students not in this country legally.

“Regardless of whether one agrees with the relevant law (which was enacted at the ballot by a large majority of Arizona voters), it could scarcely be more clear that the board’s presently established tuition rate violates it,” Heiler wrote in a letter Friday to Attorney General Mark Brnovich obtained by Capitol Media Services.

“The only lawful course and the only solid ground on which a fiduciary board can stand is to comply with the law and set a tuition rate which does not amount to a ‘subsidy,’” he wrote.

Heiler said there is a simple — and he believes legal — solution: Charge DACA recipients a non-subsidized rate, something that covers the actual costs of their education but far less than full out-of-state tuition. In fact, the regents already have a policy allowing those who graduate from an Arizona high school but don’t meet residency requirements to pay 150 percent of in-state tuition.

But former state Senate President Russell Pearce of Mesa, who is threatening his own lawsuit against the regents over their current policy, said he believes even that would be illegal. And Pearce told Capitol Media Services he may sue anyway even if the regents’ enact that 150 percent fallback position if the in-state tuition policy is ultimately ruled illegal by the Supreme Court.

The regents agreed to let DACA recipients pay in-state tuition in 2015 after Maricopa County Superior Court Judge Arthur Anderson, ruling in a lawsuit brought by the Attorney General’s Office, upheld a similar policy at the Maricopa colleges.

In June, however, a three-judge panel of the state Court of Appeals concluded unanimously that the policy violates Proposition 300, a 2006 ballot measure approved by voters on a 2-1 margin. It says anyone “without lawful immigration status” is not entitled to any tuition waiver, financial aid or any other financial assistance “that is subsidized or paid in whole or in part with state monies.”

The judges acknowledged that DACA, enacted by the Obama administration in 2010, does allow those who arrived in this country illegally as children to remain and work without fear of deportation. But they said that does not legalize their presence in the country.

Klein, in her letter Thursday, said the regents want Brnovich to await the Supreme Court review before bringing a new lawsuit to void their tuition policy.

But not Heiler.

“My main concern is that, no matter how you slice it, we’ve positioned ourselves in contravention of the law,” he told Capitol Media Services.

In her letter Thursday, Klein said there are grounds for why the regents agreed to let DACA recipients pay in-state tuition. “Our state’s economic competitiveness depends upon the education of all qualified students,” Klein wrote. “That is why access, affordability and student success are priorities of the board.”

Heiler said that’s missing the point.

“We may have good reasons for wanting to do that,” he said. “But I’m not sure we have the liberty to do that.”

That’s also Pearce’s assessment.

“They absolutely broke the law and they need to be held liable for it,” he said. Nor is Pearce persuaded that the regents were entitled to act after Anderson upheld the similar Maricopa colleges policy.

“It was an illegal court ruling,” calling Anderson “a judge who took advantage of his position.”

That still leaves the question of what happens to DACA recipients if the Supreme Court says it is illegal to let them pay the same in-state tuition as legal Arizona residents. Heiler is pushing for that 150 percent figure.

“I do believe that there’s a very strong argument to be made that a tuition rate which does not amount to a subsidy complies with state law,” he said.

Pearce disagreed that there is such a thing as a non-subsidized tuition. “They’ll have to make up numbers to do it,” he said. And Pearce maintains that DACA itself is contrary to federal law, an issue that has yet to be formally settled by federal courts.

Heiler, however, said the Court of Appeals concluded that DACA recipients lack “lawful immigration status.” But there are federal court rulings which say that the Obama-enacted policy gives them “lawful presence,” something Heiler said “may well give the board the legal authority to charge them a rate higher than in-state tuition but less than what out-of-state students pay.”