Arizona Supreme Court Rules No In-State Tuition for Illegal Aliens

By Shari Rendall | April 27, 2018

On April 9, in the State of Arizona v. Maricopa County Community College District Board, (MCCCD), the Arizona Supreme Court unanimously ruled that illegal alien Deferred Action for Childhood Arrival (DACA) recipients cannot receive in-state college tuition. This decision upheld a lower-court ruling which held that existing federal and state law do not allow the MCCCD to grant the benefits.

First, as a matter of federal law, the lower court ruled that DACA recipients do not have legal immigration status nor are they “lawfully present” in the United States. Only federal statutes enacted by Congress can define who is here legally: DACA, as a mere executive policy, an act of non-enforcement by “prosecutorial discretion,” does not grant legal status to anyone. As the court pointed out, even President Obama’s own statements when he created the program, and numerous documents issued by his administration recognized this.

Next, the court ruled that Arizona state law requires students receiving in-state tuition to be lawfully present in the United States. Arizona voters approved Proposition 200, also known as the Arizona Taxpayer and Citizen Protection Act, in November of 2004, by a substantial margin of almost 56-44 percent. This ballot initiative bars illegal aliens from receiving “state and local public benefits that are not federally mandated,” and requires any public agency administering such benefits to verify that an applicant has legal immigration status. In-state tuition in Arizona is an enormous public benefit: “the in-state rate for undergraduate students at Arizona State University is $10,640 — compared to $26,470 for non-resident students. At Maricopa Community Colleges, the in-state rate is $86 per credit hour versus $241 for non-residents.”

Finally, putting these two pieces together, because DACA recipients do not have legal status, the court determined that Proposition 200 bars them from receiving public benefits in Arizona, including in-state tuition. The court noted that state law differs from state to state on this point, but Arizona law is clear: illegal aliens cannot receive public benefits; DACA recipients are illegal aliens; therefore, DACA recipients cannot receive in-state tuition in Arizona.

Arizona Attorney General Mark Brnovich, whose office represented the state through all stages of the litigation, was both pleased and unsurprised with the ruling, saying “[m]y role as AG is to make sure you’re following the law … What makes this country unique and great … is because the rule of law means something.” Brnovich added that he was “sympathetic to the DACA recipients’ arguments because he’s a first-generation American. But he said his job isn’t to delve into policies, but to uphold the law as it’s written.”

In the court’s order, it indicated that a more detailed opinion fully explaining the reasons for its decision should be issued by May 14. Regardless of the details, the court got it right, and other courts should take note and follow its example. Other states, too, should consider laws like Proposition 200 that clearly bar illegal aliens from receiving public benefits—whether in-state tuition or anything else.