State high court revives challenge over immigrant tuition

By Terry Tang
Associated Press

PHOENIX (AP) — The Arizona Supreme Court last week revived part of a lawsuit filed by the state attorney general over immigrants in the country illegally paying in-state university tuition — an allowance that ended two years ago — but shut down his ability to sue over high college costs for all students.

The court said Attorney General Mark Brnovich did not have the authority to sue the Arizona Board of Regents over how it sets tuition rates. However, the panel found a trial court should not have dismissed Brnovich’s challenge to granting in-state tuition to students in the federal Deferred Action for Childhood Arrivals program, which shields from deportation young immigrants brought to the country as children.

In 2018, the state Supreme Court unanimously ruled that the Maricopa County Community College District could not charge in-state tuition rates to DACA recipients in defiance of state law. While the regents stopped offering in-state fees as a result, Brnovich has been seeking to reclaim from the board the equivalent of what DACA students didn’t have to pay.

The Republican attorney general argued that extending in-state tuition to them was essentially subsidizing their education with public funding. He told The Associated Press that he was pleased even if it was a split decision.

“The court made clear the attorney general does have authority to initiate litigation when there is a possible illegal payment of public monies,” said Brnovich, referring to the money DACA students would have saved with in-state tuition. “I think this is a very positive development because it does allow this office to hold public bodies accountable.”

The Arizona Board of Regents, which oversees the state’s three public universities, applauded the ruling as a referendum on what it sees as Brnovich’s overreach.

“The court’s decision is a win for Arizonans who deserve no less than an attorney general who respects the law and does not overstep the vested authority of the office,” board chairman Larry Penley said in a statement.

Overall, Brnovich said he wants to determine why tuition at Arizona’s public universities has “gone straight up like a rocket.”

“More people need to be asking why are the regents not controlling the skyrocketing price of our university tuition?” he said.

Brnovich’s initial 2017 lawsuit contends that a series of tuition increases approved by the regents violated a state constitutional mandate for university tuition to be “nearly free as possible.” The regents successfully argued in the lower court that Brnovich had no constitutional authority to sue them.

Brnovich appealed to the Supreme Court after the Court of Appeals upheld a trial judge’s decision to dismiss the lawsuit.

“The attorney general is entitled to prove that, in providing in-state tuition on behalf of students who were unlawfully present, (the Arizona Board of Regents) illegally expended funds beyond the amount of tuition collected,” Justice Clint Bolick wrote.

Numerous current and former attorneys general from other states had urged the Arizona court to rule for Brnovich, while the regents drew support from a bipartisan coalition of government officials and groups representing businesses and municipal governments.