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Fight heats up over whether Arizona universities charge unconstitutionally high tuition

Fight heats up over whether Arizona universities charge unconstitutionally high tuition

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PHOENIX — Attorney General Mark Brnovich has no legal right to sue the Board of Regents over its tuition policy, the board’s chairman said Thursday, saying the lawsuit against the board should be dismissed.

“The AG can’t just file a lawsuit without either the governor’s authority or some statutory authority,” Bill Ridenour said.

Ridenour, an attorney, said nothing in state law permits Brnovich to ask a judge to rule that the tuition charged at the state’s three universities fails to comply with a constitutional mandate that instruction be “as nearly free as possible.”

And as to the governor, Doug Ducey has not sided with Brnovich in this fight. Ducey said in September that he was not only opposed to the litigation but also took issue with Brnovich’s basic contention that tuition is too high.

“Our universities are accessible and affordable,” the governor said at the time.

Ridenour is not just making a statement of opinion. Paul Eckstein, the board’s attorney, made the same argument Thursday in new legal filings asking Maricopa County Superior Court Judge Connie Contes to throw out Brnovich’s lawsuit.

The filings drew an angry response from Brnovich.

“I think it’s unfortunate that the universities and the Board of Regents would try to get this lawsuit dismissed on a technicality instead of having an argument on the merits,” he said. “I think Arizona taxpayers deserve to know what formula the universities are using (to set tuition) and where their tax dollars are going and what kind of education system those tax dollars are supporting.”

But Ridenour, for his part, said he suspects there’s something more than Brnovich’s desire for a clear court ruling on permissible tuition.

He said Brnovich filed suit without bothering to ask the board for an explanation of its policies. Efforts since the lawsuit was filed to explain what the universities are doing proved fruitless, Ridenour added.

“I can’t help but thinking, since we tried to answer all their questions, that it’s now politics,” he said. Brnovich is up for reelection next year.

“It’s very hard to make headway against that,” Ridenour said.

The fight goes beyond the lawsuit.

Brnovich issued a separate legal opinion Thursday saying that, with only narrow exceptions, the Legislature has “unrestricted” authority to redefine the powers and duties of the Board of Regents. That opens the door to ongoing efforts by Rep. Mark Finchem, R-Oro Valley, to rein in the board.

More to the point in the current dispute, Brnovich said he reads prior Supreme Court rulings to say that the Legislature itself could set tuition, wresting that power away from the regents. And if lawmakers opted to do that, it would make the regents’ legal arguments defending their tuition-setting policies legally moot.

Brnovich filed suit in September, saying the regents have “dramatically and unconstitutionally” increased the cost of going to school at any of the three universities. He claims that costs have gone up between 315 percent and 370 percent since the 2002 school year, a figure he said computes out to 14.1 percent on an annualized basis, “the third fastest growth rate among all 50 states.”

He acknowledged that during the same period the Legislature sharply decreased the aid it supplies to higher education.

Legislative budget reports have found that since 2008 alone, state aid went from $9,648 per student to $4,098, even before the effects of inflation are considered.

Brnovich has dismissed that as irrelevant, saying it still does not excuse the regents from what he contends is their obligation to keep tuition to what it actually costs to educate students above and beyond state aid.

He said what is happening is that the regents are using other improper — and illegal — factors, including looking at what other state universities charge to the ability of students to get scholarships and loans. The only solution at this point, Brnovich said, is to have the question resolved by the courts.

“I believe that the obligation of the state’s universities are to provide an education that’s nearly as free as possible,” Brnovich said. “That is the debate we want to have.”

“The taxpayers deserve to have a hearing on the merits so we can discuss the costs, we can look at the formula the university is using and make a legal determination whether that formula is constitutional,” Brnovich said.

Eckstein, in asking Contes to dismiss Brnovich’s lawsuit, is not relying solely on the question of whether the attorney general has a right to sue.

He noted in his briefs that the Supreme Court ruled a decade ago, in a separate lawsuit, that the issue of whether tuition is as nearly free as possible is a political question beyond the reach of the courts.

In fact, Eckstein noted, it was the Arizona Attorney General’s Office, at the time under Democrat Terry Goddard, which offered that legal argument, defended the regents and won that lawsuit.

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Maybe it’s time for Arizona to change the way the state constitution treats university education.

In one of its most disappointing clauses, the Arizona Constitution raises hopes by saying instruction at the state’s universities shall be “as nearly free as possible.”

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