Attorney General Mark Brnovich has no legal right to challenge the tuition the Arizona Board of Regents sets for the state’s three universities – or even the policies used to come up with those numbers, Maricopa County Superior Court Judge Connie Contes decided today.
In a brief ruling, the judge accepted arguments by attorneys for ABOR that Brnovich can file lawsuits only when he has specific legislative authority or permission of the governor. In this case, Contes concluded, he had neither.
More to the point, he is unlikely to get the go-ahead from Gov. Doug Ducy to challenge the tuition hikes. While Ducey won office in 2014 at least in part on blaming Democrat Fred DuVal for increasing the cost of going to state-run universities, the governor has since told Capitol Media Services he believes “our universities are accessible and affordable.”
Central to the lawsuit is a constitutional provision that instruction at state universities be “as nearly free as possible.” Brnovich contends that universities are violating that, citing not just the actual tuition but also various mandatory fees for things like athletics.
His lawsuit is built on numbers.
In filing suit, he said tuition and mandatory fees at Arizona State University are 315 percent higher than they were in the 2002-2003 school year. That figure is 325 percent for Northern Arizona University and 370 percent for the main campus of the University of Arizona.
“In contrast to the increases in tuition, the consumer price index has increased only 36 percent over the same period,” Brnovich argued. And he said even if public universities are held to a different standard, what’s happened in Arizona outstrips the national average tuition increase for similar schools of slightly more than 19 percent.
But the heart of the challenge is Brnovich’s argument that the Board of Regents sets tuition not based on the actual cost of furnishing instruction — what he said is the constitutional touchstone — but also includes “a substantial subsidy for other university pursuits.”
All that is irrelevant, Contes concluded, since he has no right to sue.
An appeal is likely. But even if Brnovich wins that argument, he faces other legal hurdles that Contes did not consider, including the contention by the universities that the issue of what is appropriate tuition is a “political question” beyond the reach of the courts.