Community Colleges Outside Proposition 200 Mandates

Arizona's Attorney General in November issued a formal opinion concerning Proposition 200, the controversial ballot initiative the state's voters approved that same month. One effect of his opinion is to exempt community colleges from the scope of the new initiative.

Prop. 200 is intended to serve as an enforcement mechanism against illegal immigration. It professes that "the public interest of this state requires all public agencies within this state to cooperate with federal immigration authorities to discourage illegal immigration."

The most prominent feature of Prop. 200 is the enactment of a new state statute, A.R.S. §46-140.01. Upon taking effect later this year, the statute will require state agencies and political subdivisions "that are responsible for the administration of state and local public benefits that are not federally mandated" to do the following:

• verify the identity of any applicant for such benefits, as well as the applicant's eligibility;
• provide employees of those agencies and political subdivisions information to verify the immigration status of an applicant for benefits;
• refuse to accept any identification card the state or political subdivision issues to establish identity of an applicant unless the applicant's immigration status has been verified; and
• require employees of the agencies and political subdivisions to report "any violation of federal immigration law by any applicant for benefits and that is discovered by the employee."
  

The enforcement obligations that Prop. 200 mandates (through A.R.S. §46-140.01) will apply only if an agency or political subdivision provides "state and local public benefits."

In his opinion, then, the Attorney General notes that the scope of this new statute "is largely determined by the meaning of the phrase 'state and local public benefits.' Because the Proposition does not define that phrase, the question of when to apply identification and reporting requirements under Proposition 200 must be determined by applying general principles of statutory construction."

Looking at publicity pamphlets and other promotional literature circulated by proponents of Prop. 200, the Attorney General finds little to aid him in determining what the phrase "state and local public benefits" means.

More significant, he opines, is the context, or "placement," of the new statute. "Here, the drafters placed . . . the portion of the Proposition that concerned state and local benefits in Title 46, which is entitled 'Welfare' and addresses specific government programs."

The fact that the new statute is placed "in Title 46 indicates that the statute applies to the programs in that title, but not to programs governed by other titles that comprise the Arizona Revised Statutes."

Arizona community college districts have long been held to be political subdivisions. Those districts' existence, as well as their powers and duties, derive from statutes contained in Title 15 of the Arizona Revised Statutes, the state's education code.

Under the Attorney General's rationale, then, the services a community college provides its students and the community would not constitute "state and local public benefits" as that term is used in the newly-enacted A.R.S. §46-140.01. Prop. 200, then, does not apply to community college districts and their employees.

Published in the Fall 2004 Edition of In Brief