Robb: Can dreamers pay less for tuition? Depends on the court opinion
Robert Robb: Small differences in reasoning in an Arizona Court of Appeals decision can have big consequences for dreamers' tuition.
In law, small distinctions can have big consequences. The recent Arizona Court of Appeals decision denying in-state tuition for "dreamers" is an illustration.
In 1996, Congress passed the Illegal Immigration and Immigrant Responsibility Act, which forbid states from charging those “not lawfully present” lower tuition for higher education than lawful residents from other states. In other words, no in-state tuition.
In 2006, Arizona voters approved Proposition 300, which forbid taxpayer subsidies for the higher education of those “without lawful immigration status.”
The Obama administration adopted the Deferred Action for Childhood Arrivals program. Under it, young adults who were brought to this country illegally as children can apply for deferred prosecution, protecting them against deportation and enabling them to get a work permit.
Both said dreamers aren't eligible for in-state
The question before the court was whether DACA students are eligible for in-state tuition.
The majority opinion, written by Judge Kenton Jones, contends that the two phrases – “not lawfully present” and “without lawful immigration status” – are synonymous and interchangeable. Moreover, that DACA did not establish “lawful presence” for the purposes of either the federal or state ban on subsidized higher education.
A concurring opinion, by Judge Patricia Norris, agreed with the result but rejected the reasoning. Norris contends, sensibly, that “lawful presence” and “lawful immigration status” are two different things. DACA did confer “lawful presence.” Approved applicants can live, work and study in the country.
But deferred prosecution does not confer “lawful immigration status.” The executive cannot willy-nilly create new immigration categories. Only Congress can do that.
In fact, the claim that DACA did not create a new immigration category was the thin reed on which its constitutionality was based. And the memorandum initiating the program explicitly said that it would not provide lawful immigration status.
Must they pay out-of-state rate? Depends
Both the majority and the concurring opinions found that DACA students weren’t eligible for in-state tuition. So, why is the difference in reasoning a big deal?
Before deciding to offer DACA students in-state tuition, the Board of Regents adopted a standby alternative. Students who graduated from Arizona high schools but were not lawful residents of the country would be charged roughly the cost of their education. That’s more than in-state tuition, which is subsidized by taxpayers. But less than out-of-state tuition, where the universities reap a substantial profit.
Under the majority opinion, this program would also be illegal. If DACA does not confer “lawful presence,” then, under federal law, the universities cannot charge in-state DACA students less than what is charged out-of-state legal residents.
But under the concurring opinion, it would be legal. DACA students couldn’t receive a taxpayer-subsidized higher education because they don’t have “lawful immigration status.” But they could be charged less than out-of-state students without running afoul of the federal law because DACA does make them “lawfully present.”
Criticize Prop. 300, not judges
The decision, however, was criticized not for its reasoning but for its consequences. This is as regrettable as it is common.
Greg Stanton, Phoenix’s hyper-politically correct mayor, was typical: “Today’s ruling to uphold self-defeating legislation that denies DREAMers access to an affordable education and job skills is harmful to Arizona and only weakens our economic competitiveness.”
In the first place, this is hyperbole. There are only a few hundred DACA students in our universities. The state’s economic competitiveness doesn’t hinge on them completing their degrees.
The case for in-state tuition for dreamers is compassion and a rough sense of justice, not economics. These young adults were not culpable in the breaking of our immigration laws. Their future shouldn’t be constrained by it.
Moreover, it’s not the ruling that causes any adverse consequences. That’s just judges applying the law as written. That’s what they are supposed to do.
It’s the policy itself, which in this case was enacted by the voters. And, under the Voter Protection Act, only the voters can change it.
Rather than criticizing judges for doing their job, perhaps Stanton should lead an initiative to undo Prop. 300.
Reach Robb at email@example.com.
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