June 20, 2011 Honorable Tom Horne Arizona Attorney General 1275W. Washington Street Phoenix,AZ 85007-2926

RE: Community colleges; student not lawfully present in U.S.

Dear Attorney General Horne:

I am writing to you about the classification by a community college district of a person who is not lawfully present in theUnited Statesfor tuition purposes.

Proposition 300, approved by 71.4% of the voters in 2006 specifies that a person who is without lawful immigration status is not entitled to classification as an in state student or entitled to classification as a county resident. See Proposition 300, codified in part at Arizona Revised Statutes (A.R.S.) § 15 1803. Presumably a person who is without lawful immigration status would be eligible to receive the out of state or out of county tuition rate established by the community college district.

However, A.R.S. § 15 1825, also part of Proposition 300, further specifies that: A person who is not a citizen of the United States, who is without lawful immigration status and who is enrolled as a student at . . . any community college under the jurisdiction of a community college district is not entitled to tuition waivers, fee waivers, grants, scholarship assistance, financial aid, tuition assistance or any other type of financial assistance that is subsidized or paid in whole or in part with state monies.

(Emphasis added.) If the out of state or out of county tuition rate does not cover the full cost to educate a student who is not a United States citizen or who is without lawful immigration status, the broad prohibition in A.R.S. § 15 1825 may also disallow an out of state or out of county tuition rate if providing that classification to the student is deemed as “tuition assistance” in contravention to the statute. See also A.R.S. § 1 502 and 8 United States Code § 1621 (requiring a person who applies for any state or local public benefit, including any postsecondary education benefit, to demonstrate lawful presence in the United States and implicitly providing that a person who cannot demonstrate lawful presence is ineligible for the benefit).

With this background, may a community college district classify a person who is not lawfully present in the United Statesas an in state student or a county resident for tuition purposes? If this classification is improper, what penalties does a community college district face for providing such classifications? May a community college district create separate tuition levels to circumvent the provisions of Proposition 300?

Thank you for your assistance in this matter.

Sincerely,

Senator Linda Gray Senator Russell Pearce Senator Steve Pierce Senator Sylvia Allen Senator Rick Murphy Senator Frank Antenori Senator Nancy Barto Senator Rich Crandall Representative Jack Harper Representative Brophy McGee Representative KimberlyYee Representative John Filmore Representative Judy Burges Representative Nancy McLain Representative Terri Proud