Foss v. Arizona Board of Regents, 110719 AZAPP1, 1 CA-CV 18-0781

Docket Nº:1 CA-CV 18-0781
Opinion Judge:WEINZWEIG, JUDGE
Party Name:MIKAYLA FOSS, et al., Plaintiffs/Appellants, v. ARIZONA BOARD OF REGENTS, Defendant/Appellee.
Attorney:The Entrekin Law Firm, Phoenix By B. Lance Entrekin Co-Counsel for Plaintiffs/Appellants Tucker & Miller, LLLP, Phoenix By Daniel P. J. Miller Co-Counsel for Plaintiffs/Appellants Osborn Maledon, PA, Phoenix By Lynne C. Adams, Mary R. O'Grady, Emma Cone-Roddy Counsel for Defendant/Appellee
Judge Panel:Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Chief Judge Peter B. Swann joined.
Case Date:November 07, 2019
Court:Court of Appeals of Arizona
 
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MIKAYLA FOSS, et al., Plaintiffs/Appellants,

v.

ARIZONA BOARD OF REGENTS, Defendant/Appellee.

No. 1 CA-CV 18-0781

Court of Appeals of Arizona, First Division

November 7, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CV2018-006692 The Honorable Teresa A. Sanders, Judge

The Entrekin Law Firm, Phoenix By B. Lance Entrekin Co-Counsel for Plaintiffs/Appellants

Tucker & Miller, LLLP, Phoenix By Daniel P. J. Miller Co-Counsel for Plaintiffs/Appellants

Osborn Maledon, PA, Phoenix By Lynne C. Adams, Mary R. O'Grady, Emma Cone-Roddy Counsel for Defendant/Appellee

Judge David D. Weinzweig delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Chief Judge Peter B. Swann joined.

MEMORANDUM DECISION

WEINZWEIG, JUDGE

¶1 Arizona law directs that Arizona residents are entitled to reduced in-state tuition rates at Arizona's public universities. Meanwhile, federal immigration law prohibits undocumented aliens from receiving instate tuition benefits unless the same benefits are provided to all United States citizens and nationals. At issue here is whether three non-resident students are entitled to recoup the cash difference between in-state and out-of-state tuition for the 2017-2018 academic year because a discrete group of undocumented aliens received in-state tuition rates to attend Arizona's public universities during that period. The superior court dismissed the lawsuit for failure to state a claim because the non-resident students had no contract or entitlement to receive the reduced tuition rates provided to Arizona residents. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a motion to dismiss, this court "assume[s] the truth of [all] well-pled factual allegations and indulge[s] all reasonable inferences therefrom." Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417, 419, ¶ 7 (2008).

¶3 The Arizona Board of Regents (ABOR) is the governing body for Arizona State University, the University of Arizona and Northern Arizona University. ABOR fixes student tuition rates under Arizona law, which directs that Arizona residents enjoy reduced in-state tuition rates at Arizona's public universities. A.R.S. §§ 15-1626(A)(5), -1802(A). To achieve resident status, a student must meet the requirements set forth in A.R.S. § 15-1802(B), including that "the person is domiciled in this state for one year."

¶4 Plaintiffs Mikayla Foss, Eleanor Wiersma and Abigail Garbarino were students at either Arizona State University or the University of Arizona during the 2017-2018 academic year. They are United States citizens, but not Arizona residents, and thus paid out-of-state tuition.

¶5 To understand their claims, we turn to the federal Illegal Immigration Reform Act and Immigrant Responsibility Act and the Deferred Action for Childhood Arrivals program. Illegal Immigration Reform Act

¶6 In 1996, the federal government passed the Illegal Immigration Reform and Immigrant Responsibility Act. Pub. L. No. 104-208, 110 Stat. 3009 (1996). As relevant here, the Act provides that "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State . . . for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit . . . without regard to whether the citizen or national is such a resident." 8 U.S.C. § 1623 ("Section 1623").

¶7 Section 1623's prohibition was incorporated into Arizona law at A.R.S. § 15-1803(B), which directs that "a person who was not a citizen or legal resident of the United States or who is...

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