Public Documents in Arizona Tuition Matter and further development in NJ following AZ v. HESAA---
There have been some step forward-step backwards developments in two recent tuition matters, in NJ and in AZ. (Who would have guessed?) As many of you know, several groups have sued Gov. Brewer's insistence that she can declare DACA not to be DA, which status would confer resident tuition on DACA recipients in AZ. I posted the preliminary holding in that case, and wrote:
ADAC et al. v. Brewer et al., CV12-02546 PHX DGC
This almost makes up for the dreadful DACA matter still festering/pending in Dallas federal district court. But Judge Campbell, who has a very scholarly opinion here, gets to his bottom line in a very odd pathway. Some things to look for as you read it:
He relies upon the district court decisions in both LULAC v Wilson and HICA, even though they both had substantive Circuit decisions as well.
The somewhat odd take on both Plyler, Toll v Moreno (about G-4 residency), and (what I consider to be a misreading of) DeCanas are worth noting. He would appear to invalidate Merten as well.
He finds Plyler an "anomaly" (fair enough—and why I have suggested that it would have been better decided under preemption analysis), but it is the only SCOTUS take on this issue, hence authoritative, more so than DeCanas, which was about a federal/state unemployment program with a clear role for both levels in its administration
He also seems to suggest that Plyler is not entirely controlling, as college students are usually 18 years or older, but DACA also extends to kids younger than 18
He refers in FN 9 to "DACA recipients and other undocumented aliens" ("Plaintiffs argue that the Governor's statements also evince hostility to DACA recipients and other illegal aliens. The Court need not, and does not, go so far as to ascribe such an intent to the Governor"), but if they are not unlawfully present, they are not actually undocumented."
Based upon their reading of the AZ statute, Maricopa County Community College District (Phoenix) officials decided to extend resident tuition to DACA recipients, and this week the AZ AG's office sued them. I think no matter how the drivers license case goes (whether Brewer can declare DACA does not control in the state), this matter turns in favor of the MCCCD folks. But it is interesting when a state sues its largest community college for a tuition matter. I have posted below all the relevant materials, including the complaint, etc. My thanks to MCCCD GC Lee Combs for sharing these with me.
In addition, I have heard from ACLU attorneys that following the NJ case that struck down the state's refusal to grant financial aid to NJ resident US citizen students whose parents were undocumented, that NJ has not been complying with the decision, A.Z. v. HESAA. Given the clarity of the decision and the authoritative nature of the decision, the lawyers are considering further legal action of administrative action to force compliance. I will keep posting these things at www.law.uh.edu/ihelg. These are the good guys, so we need to keep an eye on the bad behavior of Arizona and New Jersey higher ed officials and elected officials who do not mind going to court to prove a point that they know they will lose.
I will keep you posted, and all of you should do the same with me, so keep an eye out for new articles, etc. These will also make good student notes when your law review folks come ask for suggestions.
Your hardworking Research Assistant,
Michael A. Olivas
ARIZONA v. MCCCD-DACA - Complaint for Declaratory and Injunctive Relief
DACA 2012-9-20 Letter from Ray
DACA 2013-04-24 Ray Letter
DACA 2013-05-20 Letter to Ray
DACA 2013-2-7 Letter from Ray
DACA Drivers License Case - Prelim Order
Arizona v MCCCD: Answer filed by Defendant MCCCD (July 29, 2013)