Arizona’s Constitution, Immigration Law, and Undocumented Students: The Battle Around In-State Tuition

By: Brian Garcia

Education has empowered many of us to chart our own paths. Our mentors and teachers help guide us along the way. They help us reach for higher education, trade opportunities, and jobs.  Education, for many, serves as the key to what we aspire in our beholden American Dream. For some, it is easier to achieve. For others, it may take working twice as hard to achieve the same, if not more. This is the reality many Deferred Action for Childhood Arrivals (“DACA”) recipients may face as they resiliently overcome critical challenges.

Ellie Perez is one of 25,620 individuals in Arizona that has faced and overcome numerous challenges as a DACA recipient.[1]Ellie has been in the United States since she was four.[2]She has only known Arizona as her home.[3]Ellie is a resilient individual that provides for her family and continues to advocate for our community.[4]She grew up cleaning houses for work after high school and has gone on to help improve our community in impactful ways.[5]She has campaigned for Rep. Kyrsten Sinema’s first congressional race in 2012. She has worked for Phoenix City Councilwoman Kate Gallego supporting fellow neighbors and residents. Ellie currently represents Arizona as a Democratic National Committee member. And, she served former Phoenix mayor Greg Stanton on his campaign team for Congress as the political director. Ellie embodies the American Dream. Her commitment to our community is inspiring. She is a force that empowers many to use their voice because her own is not heard at the ballot box. Ellie has been able to accomplish so much as she worked extra jobs and supported her family while earning an education beyond affordability.[6]But, she made it possible even though state and federal laws surrounding in-state tuition have made it difficult.

The core of Arizona’s vision for education is rooted in Arizona’s Constitution. It mandates that “the university and all other state educational institutions… shall be as nearly free as possible.”[7]Arizona Attorney General Mark Brnovich, the Maricopa County Community College District (“MCCCD”), the Arizona Supreme Court, and Arizona State University president Michael Crow weigh in on aspects of how DACA recipients are eligible for in-state tuition.

Arizona Attorney General Mark Brnovich emphasizes that Arizona law provides state-funded services for individuals who have legal status.[8]Thus, claiming that in-state tuition is a state benefit for individuals with legal status.[9]This interpretation has increased tuition for DACA recipients by 200 percent.[10]An interpretation that has foreclosed access to opportunity for many.

Legal arguments rest the basis of whether DACA status qualifies as “lawfully present” to be eligible for in-state tuition.[11]

MCCCD recognizes circumstances that DACA recipients like Ellie face. MCCCD argues that because DACA recipients are authorized by the Department of Homeland Security they are “lawfully present” for the purposes of in-state tuition.[12]

The Arizona Supreme Court in State v. Maricopa Cty. Cmty. Coll. Dist. Bd.held that DACA recipients are not eligible for in-state tuition in Arizona because “Congress has not identified DACA recipients as ‘lawfully present’… and Arizona has not made in-state tuition available to all citizens… regardless of residence.”[13]They further reasoned that Arizona may offer DACA recipients in-state tuition so long as the state “makes a citizen or national of the United States… eligible for such a benefit… without regard to whether the citizen or national is such a resident.”[14]While the Court held that while they must conclude DACA recipients are not eligible for in-state tuition, they empathically shared “even if we agree on the desirability of affording them access to college education as a matter of public policy.”[15]

Arizona State University president Michael Crow is committed to “honoring its constitutionally mandated mission” providing access and opportunity to all Arizona students – including individuals like Ellie.[16]

Our laws do not reflect the nuances of our community and the circumstances around them. The state of education and immigration for undocumented students remains deep in antiquated perspectives that do not represent Arizonan and American values. It is time that our state and federal leaders act for undocumented residents who are neighbors, tax payers, friends, and family members. Individuals like Ellie may not have a paper saying they are citizens, but they are, as members of our community, Arizonans and American. Ellie certainty deserved the opportunity Arizona’s Constitution envisioned for all of us.

[1]Melissa Blasius, Who is DACA? Meet 10 Arizonana recipients,ABC 15 Arizona (Feb. 28, 2018), https://www.abc15.com/news/region-phoenix-metro/central-phoenix/who-is-daca-meet-10-arizonan-recipients.

[2]Id.

[3]John Dreyfus, DACA students continue to struggle following spring tuition ruling, The State Press (Sept. 6, 2018), http://www.statepress.com/article/2018/09/sppolitics-daca-students-continue-to-struggle-following-spring-tuition-ruling.

[4]Id.

[5]Melissa Blasius, Who is DACA? Meet 10 Arizonana recipients,ABC 15 Arizona (Feb. 28, 2018), https://www.abc15.com/news/region-phoenix-metro/central-phoenix/who-is-daca-meet-10-arizonan-recipients.

[6]Id.

[7]Ariz.Const. art. XI, § 6.

[8]Press Release, Attorney General Mark Brnovich, AZ Supreme Court Rules Unanimously in Favor of State in MCCCD In-State Tuition Case, https://www.azag.gov/press-release/az-supreme-court-rules-unanimously-favor-state-mcccd-state-tuition-case.

[9]Id.

[10]State v. Maricopa Cty. Cmty. Coll. Dist. Bd,

[11]Id.

[12]Id.

[13]Id.

[14]Id.

[15]Id.

[16]Press Release, Statements from President Crow, UPDATE: DACA Message from ASU President Michael Crow (Sept. 7, 2017), https://president.asu.edu/statements/update-daca-message-from-asu-president-michael-crow.