Regents chairman calling for lawsuit over university cuts

Saying the Arizona Constitution is being ignored, the chairman of the Arizona Board of Regents said Tuesday his colleagues should sue the Legislature if they do not come forward with more funds for the university system.

Mark Killian cites the constitutional provision which requires instruction at state universities be “as nearly free as possible.”

Killian, a former state legislator and speaker of the House, acknowledged the last time the Arizona Supreme Court took up the question – the regents were the defendants in that case brought by students – the justices ducked the issue. In essence, they said they could not determine what “as nearly free as possible” means, saying that’s a political rather than a legal question

But Killian told Capitol Media Service a lot has changed since that lawsuit was filed in 2003 and the high court ruled four years later. And he said a case can be made that what’s happening now is not what those who crafted the Arizona Constitution had in mind in including that requirement.

“I look at $10,000 – or more – and I can’t with a straight face say that’s as free as possible,” he said.

Those who just approved the state budget, including a $99 million cut to universities, don’t see it that way.

“It doesn’t say it has to be free,” said House Speaker David Gowan, saying the state is dealing with a deficit.

“We’re restructuring our budget,” Gowan said. “We’re making it ‘as free as possible’ as we can.”

Senate Majority Leader Steve Yarbrough said it’s not like lawmakers eliminated state funding. And he said that $99 million cut needs to be put into perspective against a total budget at the universities of close to $5 billion.

“How in the world that would violate in any fashion the constitutional requirement that something be as nearly free as possible?” Yarbrough asked.

Nor was he buying the argument that close to $2 billion of that is restricted in things like grants and cannot be used for basic operations, saying those funds “drive all sorts of professors’ salaries and graduate assistants’ salaries.”

That’s also the contention of Gov. Doug Ducey. Daniel Scarpinato, the governor’s press aide, said his boss looks at the final budget not as a $99 million cut, but a “significant $600 million investment in higher education.”

And Yarbrough said even if the real figure is $3 billion, and even if the latest round of budget cuts puts state funding at just $666.9 million, “I just have a difficult time trying to figure out how that would be a successful (legal) issue.”

However, Killian said lawmakers and the governor should think twice before rejecting the idea the universities can win.

“Is that an issue you want the courts to solve?” he asked. “Or is that something from a public policy standpoint where the regents and the Legislature need to sit down?”

And Killian said he thinks that, unlike the earlier case the Supreme Court sidestepped, the evidence is there.

“Back then, the state made a majority of the contribution toward the tuition,” he said. “That has been totally reversed now.”

In 2007, for example, the state provided $8,553 for every student compared with in-state tuition in the $4,000 range. With the latest budget cuts, the Board of Regents figures the state’s share is just $4,024 per student.

“That’s where the legal issue comes in,” Killian said.

It remains to be seen whether Killian can get the majority of the board to reach a similar conclusion when the issue is discussed Wednesday in Flagstaff.

“A lawsuit so conceived would have all of my sympathy but none of my support,” said Jay Heiler, the board’s vice chairman. “It would be a likely loser.”

Heiler, an attorney, said he believes the “as nearly free as possible” clause is in the Arizona Constitution for a reason. But he does not believe that can be linked to any specific dollar figure, either in terms of tuition or state aid.

“I would say the meaning of the language is to convey across time the intention of the framers that Arizona offer higher education to its citizens and provide financial support therefore,” Heiler said.

Yarbrough, also an attorney, agreed the language has meaning. But he said he doesn’t believe the Legislature has crossed the line.

“I doubt that we’re anywhere near a circumstance where it would be violated and where the court would have appropriate jurisdiction to say, ‘OK, we’re going to order the Legislature to appropriate more money,’“ he said.

So, where is the line?

Yarbrough compared it to a U.S. Supreme Court ruling where Justice Potter Stewart said he could not define obscenity but he would know it when he sees it.

“So, maybe this is true, it may be hard to identify ‘as nearly free as possible,’“ Yarbrough said. “But, at some point, maybe we know it when we see it.”

Heiler said there is an alternative to filing suit.

“What we may need to figure out is how to make the universities as nearly free of the state as possible,” he said. That means finding alternate sources of revenue and not having to depend on how much the Legislature is willing to shell out in any given year.