U.S. sues Arizona over tuition for undocumented immigrants

In legal papers filed in federal court, the U.S. Department of Justice says the policy, approved by Arizona voters in 2022, violates a 1998 federal law.

The lawsuit says it also runs afoul of a sweeping executive order issued last year by President Donald Trump directing DOJ to take action against any state that gives benefits to undocumented immigrants that are not available to all American citizens. The order says that includes "state laws that provide in-state higher education tuition to aliens but not to out-of-state American citizens.''

Similar lawsuits have been filed against more than a dozen other states, according to Assistant Attorney General Garrett Greene, who signed the new lawsuit. He said judges there have voided the policies in five states.

Proposition 308, the 2022 Arizona ballot measure, allows certain individuals who have graduated from a high school in Arizona and meet other conditions to pay the same tuition available to state residents, regardless of immigration status. At the same time, U.S. citizens from another state can be required to pay the higher non-resident tuition.

None of that is linked to the student's legal status. In fact, one provision in the voter-approved law specifically says that "persons without lawful immigration status are eligible for in-state tuition.''

Arizona's law can withstand challenge, Mayes says

Arizona Democratic Attorney General Kris Mayes, anticipating such a lawsuit, issued a legal opinion last year that the wording of the 2022 ballot measure can withstand challenge because it is sufficiently different than what is forbidden by federal law.

The key, she wrote, is that eligibility for in-state tuition is not based on being an Arizona resident. Instead, to qualify, someone needs to have attended an Arizona high school "while physically present in this state for at least two years'' and to have obtained a diploma in Arizona.

That means it is not residency that triggers eligibility, Mayes said. Therefore, she said, it does not run afoul of the federal law.

"Although many people who meet the eligibility requirements will also be residents, not all will be,'' Mayes wrote in her legal opinion. "For example, a student could meet the statute's attendance and graduation requirement, move to another state, and then plan to return to Arizona for college. That student would not be a current Arizona resident, but would be eligible for in-state tuition.''

She also said the law allows in-state tuition for someone who crosses into Arizona every day from another state to attend school here despite being a legal resident of the other state.

Conversely, she said, some Arizona residents will not be eligible for in-state tuition. She gave the example of an Arizona resident who did not attend high school here for the two years required by the law and did not graduate from high school here.

The Department of Justice, however, says the result is the same: Arizona residents in this country without legal status get to pay a rate of tuition lower than U.S. citizens who are residents of other states.

Would also affect community colleges

It's not just the Board of Regents that is being sued over the tuition policies at the three universities it oversees, the University of Arizona, Arizona State University and Northern Arizona University. 

The new lawsuit also asks a federal judge to overturn Prop. 308 as violating the supremacy of federal laws on immigration.

According to federal attorneys, that also would override policies of the Maricopa and Pima community colleges that base financial aid on the same basis that the universities decide who gets to pay in-state tuition, meaning Arizona high school graduation and not immigration status.

In a written statement Thursday, Mayes took a swat at the administration for filing suit, not just here but against other states.

"This case is nothing more than a political vendetta aimed at undermining the will of Arizona voters and harming kids who have done nothing wrong,'' she said.

Mayes said she still contends nothing in Prop. 308 runs afoul of federal law.

"And that is why the federal government's claims are faulty and will be rejected by the courts,'' she said.

Regents spokeswoman Megan Gilbertson said the board is carrying out the law enacted by the state and approved by the voters.

"We are reviewing the lawsuit and will work closely with Arizona leaders on the appropriate next steps,'' she said.

Gilbertson said she did not have access to any firm numbers about how many students fit into the category of getting in-state tuition but not having legal immigration status.

Tuition revenue vs. taxes paid by graduates 

When the ballot measure was being debated in 2022, the American Immigration Council, which favored Prop. 308, estimated that the lower tuition provision would mean that more than 3,600 Dreamers would be able to enroll in college. The Department of Justice cited that report in its lawsuit.

But what is not in the lawsuit is another finding by the council that the ability of college-educated people to qualify for better jobs would generate an additional $4.9 million annually in federal income taxes and state and local taxes.

The lawsuit also cites a report released in January by the Arizona Center for Investigative Reporting, which asked multiple colleges about how many undocumented students received in-state tuition.

That report noted that schools are not required to calculate that number. But it says that it did get information showing that about 432 such students at Arizona State University fell into that category, with nearly 200 at Pima Community College, and fewer than 70 at the University of Arizona.

The Department of Justice concluded that meant undocumented students at ASU cumulatively received close to $10.5 million in reduced tuition based on the $24,600 difference between in-state and out-of-state rates.

A spokesman for Pima Community College said the school had no comment. There was no immediate response from the Maricopa colleges.

Background on Arizona's laws

The Obama administration created the Deferred Action for Childhood Arrivals program in 2012. It allows people who arrived in this country illegally as children before 2007, colloquially called Dreamers, to remain and to work if they meet certain conditions.

Based on that, the Maricopa community college system and, later, the Arizona Board of Regents agreed to let DACA recipients pay in-state tuition.

But the Arizona Supreme Court ruled in 2018 that it is precluded by Proposition 300, a 2006 ballot measure that denies various public benefits to those in the country without legal immigration status — including any form of subsidized tuition.

Proposition 308, approved by a margin of 51.2% to 48.8%, was written to create an exception.