Senators vote to create special tuition, most for 'dreamers'
PHOENIX – Courting a possible lawsuit, state senators voted Wednesday to direct the Board of Regents and community college boards to create a special tuition for those who graduate from Arizona high schools but don't qualify as in-state residents.
And the main beneficiaries would be "dreamers.''
Sen. Heather Carter, R-Cave Creek, said the public colleges and universities now have two distinct tuition rates, one for those who qualify as Arizona residents and one for those who do not. SB 1217 which she crafted would mandate a third rate.
Nothing in her bill specifically spells out what that new rate should be. But Carter said she envisions it would be set somewhere between what the residents pay and what is charged to everyone else.
Carter said this could help students who graduated from an Arizona high school, moved elsewhere but now want to attend one of the state's three universities without paying out-of-state tuition.
But the more immediate beneficiaries would be those in the Deferred Action for Childhood Arrivals program, students who until last year qualified for in-state tuition if they met other residency requirements.
A 2018 ruling by the Arizona Supreme Court concluded that a voter-approved law spells out that resident tuition is available only to those who are in this country legally. And the justices said that while federal law allows DACA recipients to remain without fear of deportation, they do not qualify.
But Carter said Wednesday she thinks this bill is legal.
At the heart of the issue is Proposition 300, a 2006 voter-approved initiative which says that any person who is not a U.S. citizens or "legal resident'' or is "without lawful immigration status'' is ineligible to be charged the same tuition at state colleges and universities available to residents. That same law denies them any type of financial assistance that comes from state funds.
Carter said nothing in SB 1217 repeals any of that. In fact, the Legislature is constitutionally powerless to alter that law as it was approved at the ballot box.
What Carter seeks to do is craft something that neither the 2006 law nor the Supreme Court addressed.
"This is not in-state tuition,'' she said, the issue that was in the 2006 law. Put simply, said Carter, nothing in that law addressed other forms of tuition ¬– like the one she is proposing.
"This new tuition rate didn't exist when the proposition was put to the voters,'' she said.
Anyway, Carter said, this is not a special tuition for dreamers.
"I'm creating a new tuition classification that is targeted to two things: Are you eligible to go to college, and did you graduate from an Arizona high school,'' she said.
Sen. Eddie Farnsworth, R-Gilbert, said Carter is wrong if she believes this will pass legal muster.
"The entire intent of Prop 300 was to contemplate the tuition that is lower than someone would pay (from) out of state,'' he said.
Farnsworth acknowledged that, strictly speaking, the 2006 law used in-state tuition as the standard of what is not available to those not here legally.
"But it certainly was contemplating whether somebody who is in the country illegally should be paying less than out-of-state tuition,'' he said.
That, however, remains to be seen.
It was Attorney General Mark Brnovich who got the court rulings declaring in-state tuition off limits to DACA recipients.
Since that time the Board of Regents has crafted its own version of what Carter is proposing: a special rate for high school graduates who do not otherwise qualify for in-state tuition because of Proposition 300. That rate is set at 150 percent of the resident tuition, a figure that board members say covers the actual cost of instruction, meaning there is no subsidy of state dollars.
It still is far lower than what those in the DACA program would have to pay in out-of-state tuition.
At the University of Arizona, for example, current resident tuition and mandatory fees for a new undergraduate total $12,447 a year. That same figure for someone from out of state is $36,346.
So far there have been no moves by Brnovich to challenge that 150 percent tuition as being illegal.
An aide to Brnovich said Wednesday that the question of the legality of SB 1217 depends on what the regents and community college officials do with the mandate for the new rate.
"Ultimately, if a student pays a tuition rate that is equal to the cost of actual instruction, they're not receiving a subsidy,'' said Ryan Anderson.
"The bill appears to create a new tuition category for students and leaves it up to the regents to fill in the details,'' he said. "The devil is always in the detail.''
Carter said she considers her bill as one way of getting more Arizona students to have training beyond high school.
"We do not have enough students pursuing and ultimately achieving either a certification for a career, a two-year college degree or a four-year college degree,'' she said. "So what we're doing is building a new path for students to pursue their academic dreams.''
Wednesday's 18-12 vote sends the measure to the House.
The legislation has the backing of most elements of the business community.
"We want to do everything we possibly can to keep good people in the state of Arizona,'' Glenn Hamer, president of the Arizona Chamber of Commerce and Industry told lawmakers when the measure was heard in committee earlier this month. "It really is all about talent, talent, talent.''