A judge has given Gov. Jan Brewer the go-ahead to try to block policies that allow “dreamers” to pay lower tuition at community colleges.
In a ruling released Wednesday, Maricopa County Superior Court Judge Arthur Anderson said the Arizona Constitution gives the state's chief executive broad powers to direct the attorney general to “take care that laws be faithfully executed.” Anderson said that includes a 2006 voter-approved law that limits in-state tuition to citizens and legal residents.
Wednesday's ruling, unless overturned, most immediately paves the way for a hearing on whether the Maricopa County Community College governing board violated the law with its decision that students who are accepted into the federal Deferred Action for Childhood Arrivals program and meet the requirements for in-state-tuition if they live in the county. Attorney General Tom Horne, suing with Brewer's authorization, contends they do not.
If the ruling is upheld ultimately by the Arizona Supreme Court, it also could pave the way for Horne, at Brewer's direction, to bring similar lawsuits against other community college districts that already have adopted similar policies or are considering them in the future.
But Martha Gomez of the Mexican American Legal Defense and Educational Fund said that, in the end, Brewer's right to sue won't matter. She contends courts eventually will rule nothing in the 2006 initiative bars college governing boards from offering lower tuition to dreamers.
That voter-approved measure spells out that in-state tuition is not available to those who not citizens, legal residents or individuals “without lawful immigration status.”
That financial difference is significant. The Maricopa colleges are set to charge $83 a credit hour this coming year for county residents; others would pay $337 a credit hour.
Stuck in the middle are those in the DACA program announced nearly two years ago by the Obama administration. That policy allows those who arrived as children to remain — and even to work — if they meet certain other requirements.
The most recent data from U.S. Citizenship and Immigration Services shows more than 21,000 Arizonans have applied, with nearly 19,000 accepted.
Despite that, Assistant Attorney General Leslie Cooper has argued that the DACA recipients do not have “lawful status” and therefore do not qualify for lower in-state tuition.
“A number of different groups of people are entitled to stay here and work, even though their status isn't lawful,'' she said.
Gomez, however, said that's a narrow — and she believes — illegal interpretation of who qualifies.
She acknowledged there are many different words used when referring to immigration laws.
“You can say ‘legal status’ or ‘immigrant status’ or other things,” Gomez said.
“But the (Arizona) law doesn't require any one of those specific combinations,” she continued. “It only requires that you have legal permission to be here.”
That, she said, is clearly true for DACA recipients.
Mary O'Grady, attorney for the college, had sought to short-circuit that whole debate about the rights of DACA recipients by trying to have the case thrown out. She argued that Horne had no authority to file suit in the first place, saying his duties are limited to those specifically authorized by the Legislature.
But Horne, facing possible dismissal of the case he filed last June, pulled out a trump card: He got Brewer to sign a letter in February specifically authorizing him to sue on her behalf, citing the constitutional right of the governor to make sure all state laws enforced.
O'Grady argued that extends only to the state agencies under Brewer's control. But Anderson did not see it that way.
“This contention is not supported by a plain reading of (the constitution), however, or the case law interpreting it,” the judge wrote of the governor's authority.
Anderson said state law does give the attorney general, “at the direction of the governor,” to prosecute or defend any case in state courts in which the state “has an interest.”