PHOENIX — Attorneys for two “dreamers” want to defend the lower resident tuition they and others pay for community college and sue Attorney General Tom Horne for trying to take it away.
In legal papers filed Tuesday, the students contend Horne is off base with his conclusion that they do not meet the requirements of a 2006 voter-approved law to qualify for in-state status. Horne has filed suit against Maricopa County Community College which has been granting the lower tuition.
The college is defending the decision, but the Mexican American Legal Defense and Educational Fund, representing the students, contends the college may not be terribly interested in winning: If Horne prevails, the college gets enriched with more money for the same courses.
“Because Maricopa County Community College District has an economic incentive that may be directly opposed to applicants' economic interests, it may not defend the case as vigorously as applicants will,” the motion to intervene states.
Potentially more significant, the students want to file a countersuit against the state alleging that their equal protection and due process rights are being violated.
Central to the fight is that ballot measure which limits in-state tuition to citizens and legal residents. It also denies those who do not qualify any form of waivers of tuition or fees, grants, scholarships, financial aid, tuition assistance “or any other type of financial assistance that is subsidized or paid in whole or in part with state monies.”
It specifically says the higher non-resident tuition must be charged to those who are “without lawful immigration status.”
The students represented by MALDEF been accepted into the federal government's “Deferred Action for Childhood Arrivals” program which allows those who came to this country as children and meet other requirements to remain. It also provides them with documents authorizing them to work legally in this country.
MALDEF attorney Martha Gomez said the 2006 law also uses the phrase “lawful presence.” She said those in the DACA program, having received work-authorization documents, are lawfully present.
But Assistant Attorney General Leslie Cooper, who is pursuing the case against Maricopa Community College, said being allowed to remain without fear of deportation is not the same as “lawful status.”
The outcome of the lawsuit will have implications beyond Maricopa County.
Horne already has sent a letter to Pima Community College warning that it, too, could wind up in court because of the board's decision to allow students in the DACA program to pay the lower in-state tuition. Other community colleges could follow suit.
But Pima is apparently ready to defend its policy. Jeff Silvyn, the college's general counsel, said he reads state law to allow students with federal work permits to pay in-state tuition if they meet other residency requirements.
In the legal papers filed Tuesday, Gomez said the students deserve the right to defend the lower-tuition policy. She said if Horne prevails, their tuition would nearly quadruple for the exact same classes.
“The added costs would likely cause applicants to take fewer classes, drop out of school for a discrete time, or abandon their career aspirations altogether,” Gomez wrote. “Applicants may also work longer hours to earn more money, which would severely cut into their study time, hurt their grades, and undermine their prospects of transferring to competitive universities.”
The Board of Regents has opted to interpret the 2006 law to require the DACA students to pay non-resident tuition at state universities, but that could change if a court were to rule otherwise.
Gomez said there's another flaw in Horne's lawsuit.
She said Maricopa Community College has accepted work-authorization documents as proof of resident status — and entitlement of in-state tuition -- from those in other deferred action programs. Gomez said Horne's decision to single out DACA recipients is legally indefensible.
The legal fight is different than the one playing out in the 9th Circuit Court of Appeals over the decision by Gov. Jan Brewer to deny driver's licenses to DACA recipients. That is based on a 1996 law which says licenses are available only to those who can show their presence in this country is “authorized by federal law.”