AG rules against regents, concludes Legislature can set university tuition rates

Attorney General Mark Brnovich issued a legal opinion December 7 saying that, with only narrow exceptions, the Legislature has “unrestricted’’ authority to redefine the powers and duties of the Arizona 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, 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 state’s three universities. He claims that costs have gone up from 315 percent to 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.’’

He also defended filing the lawsuit in the first place, pointing out his inquiry started after the regents reaffirmed their policy of allowing students in the Deferred Action for Childhood Arrivals program to pay in-state tuition if they met other residency requirements even after the Court of Appeals ruled a similar policy by the Maricopa Community Colleges was illegal.

“The universities and the Board of Regents forced this office to take action when they were blatantly disregarding the law when it came to who was and who was not being given in-state tuition,’’ Brnovich said. “During the course of examining that, we discovered that the tuition at our state universities had skyrocketed much faster than the cuts that were made by the Legislature.

He also lashed out at the regents for trying to short-circuit the lawsuit through its claim that he has no right to sue.

“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.

Board attorney Paul Eckstein, in a written motion 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 Attorney General’s Office, at the time under Democrat Terry Goddard, which offered that legal argument, defended the regents and won that lawsuit.

The chairman of the board, Bill Ridenhour, said December 7, Brnovich has no legal right to sue over its tuition policy.

“The AG can’t just file a lawsuit without either the governor’s authority or some statutory authority,’’ Ridenour told Capitol Media Services.

Ridenour, who is an attorney, said there is nothing in state law that permits Brnovich to ask a judge to rule that the tuition charged at the state’s three universities does not 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. In fact, the governor told Capitol Media Services 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,’’ Ducey said at the time.

Ridenour is not just making a statement of opinion. Eckstein made the same argument December 7 in new legal filings asking Maricopa County Superior Court Judge Connie Contes to throw out Brnovich’s lawsuit.

The new pleadings 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 even bothering to ask the board for an explanation of its policies. And Ridenour said efforts since the lawsuit was filed to explain what the universities are doing proved fruitless.

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

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

But it’s very likely that the fight playing out in court – the lawsuit the regents want dismissed – won’t end the fight.