State of Arizona, ex rel. Attorney General Mark Brnovich, Plaintiff/Counter-Defendant/Appellant,
Maricopa County Community College District Board, Defendant/Appellee, Abel Badillo and Bibiana Vazquez, Intervenor-Defendants/Counter-Plaintiffs/Appellees.
from the Superior Court in Maricopa County The Honorable
Arthur T. Anderson, Judge No. CV2013-009093
of the Court of Appeals, Division One 242 Ariz. 325 (App.
Brnovich, Arizona Attorney General, Kevin D. Ray, Section
Chief Counsel, Education and Health Section, Rusty D.
Crandell (argued), Kevin D. Ray, Assistant Solicitor General,
Phoenix, Attorneys for State of Arizona
O'Grady (argued), Lynne C. Adams, Eric M. Fraser, Osborn
Maledon, P.A., Phoenix, Attorneys for Maricopa County
Community College District Board
Dennis GilBride, Georgia A. Staton, Jones, Skelton &
Hochuli, P.L.C., Phoenix, Attorneys for Amicus Curiae Pima
A. Gomez, Mexican American Legal Defense and Educational
Fund, Los Angeles, CA; José de Jesús Rivera,
Nathan J. Fidel, Haralson, Miller, Pitt, Feldman &
McAnally, P.L.C., Phoenix; Daniel R. Ortega, Jr., Ortega
STATE V. MARICOPA CTY. CMTY. COLL. DIST. BD. Opinion of the
Court Law Firm, P.C., Phoenix; Noel Fidel, Law Office of Noel
Fidel, Phoenix, Attorneys for Abel Badillo and Bibiana
A. Ellis, Goodwin Procter LLP, Los Angeles, CA; Laurel
Kilgour, Goodwin Procter LLP, San Francisco, CA, Attorneys
for Amicus Curiae Year Up, Inc.
S. Gordon, Roopali H. Desai, Coppersmith Brockelman, PLC,
Phoenix; Attorneys for Amicus Curiae Year Up, Inc. and Amicus
Curiae Arizona Education Association
JUSTICE BALES authored the opinion of the Court, in which
VICE CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER,
BOLICK, and GOULD and JUDGE ESPINOSA joined. [*]
We here consider whether Arizona students granted deferred
removal action by the United States Department of Homeland
Security ("DHS") under its Deferred Action for
Childhood Arrivals ("DACA") policy are eligible for
in-state college tuition. "The Government of the United
States has broad, undoubted power over the subject of
immigration and the status of aliens." Arizona v.
United States, 567 U.S. 387, 394 (2012). Because
Congress has not identified DACA recipients as "lawfully
present" for purposes of public benefits eligibility
under 8 U.S.C. § 1621, and Arizona has not made in-state
tuition available to all citizens and nationals regardless of
residence, we hold that DACA recipients are not eligible for
in-state tuition in Arizona.
In 2012, DHS initiated the DACA program by exercising its
prosecutorial discretion to defer the deportation of certain
unauthorized aliens who entered the country as children. The
program provided neither long-term authorization to remain in
this country nor a path to citizenship,
¶3 DACA recipients must apply to DHS
for employment authorization documents ("EADs"),
and the Maricopa County Community College District Board
("MCCCD") began accepting those EADs as evidence of
residency for students to receive in-state tuition. Federal
law generally bars granting in-state tuition to students
based on state residency when they are not lawfully present
in the United States. See 8 U.S.C. § 1623(a).
Similarly, Arizona law bars in-state classification of
certain students lacking lawful immigration status. A.R.S.
§ 15-1803(B). (Arizona statutes contemplate reduced
tuition for "in-state" university ...