AG sues Arizona Board of Regents over unconstitutional tuition hikes

Mark Brnovich
Mark Brnovich

PHOENIX – “A four-year college degree is the most fundamental licensure of our modern society. Providing one’s children with the opportunity to earn that degree – or paying for it oneself even if that means attending college part-time while working – is a critical part of the American dream,” were the opening statements of the complaint filed by Arizona Attorney General Mark Brnovich last week.

Brnovich is seeking declaratory, injunctive and special action relief against the Arizona Board of Regents (ABOR) over its dramatic and unconstitutional increases in the price of in-state tuition and mandatory fees by 315 to 370 percent at Arizona’s public universities over the past 15 years.

Brnovich cites Article XI, section 6 of the Arizona Constitution, which states, “The university and all other state educational institutions shall be open to students of both sexes, and the instruction furnished shall be as nearly free as possible.”

Stating ABOR cannot lawfully disregard that constitutional directive, Brnovich points out over the past 15 years ABOR has increased the price of in-state tuition at Arizona’s public universities by 315 to 370 percent.

Tuition costs alone now range from $10,792 to $12,228, while the full price of attendance for those living on campus is $26,923 to $28,900 per year.

According to Brnovich, the Framers of the Arizona Constitution decided the purpose for which mandatory tuition and fees may be charged is the actual cost of furnishing instruction less state appropriations.

Brnovich’s complaint highlights three types of unlawful conduct through which he claims ABOR has shirked its constitutional duty.

First, ABOR’s tuition-setting policy, rather than basing tuition on the cost of furnishing instruction, instead considers at least three factors that Brnovich claims are “necessarily incompatible with reaching a result that is ‘as nearly free as possible.’”

He said those factors include ABOR’s consideration of the national education market, or amounts charged by “peer universities” in other states; the broad availability of student loans and other aid, in essence concluding if a student can borrow enough money, ABOR is cleared to charge it; and ABOR’s misinterpretation of the “nearly free” mandate to mean “affordable” and “thereby asserting itself as the arbiter of ‘affordability’ for Arizona’s students and families.”

Brnovich said ABOR has abandoned its duty to serve as a check on university presidents while engaging in an “unprecedented series of lockstep tuition hikes across Arizona’s three public universities,” resulting in tuition increases of over 300 percent at each school.

His second bone of contention with ABOR is the unlawful charging of students who must attend part-time or online significantly more than the actual cost and requiring students to pay for things other than instruction, such as athletic, recreation, technology and health fees, in order to access instruction.

Third, Brnovich outlines how ABOR is “causing the illegal expenditure of public monies and the failure to collect tuition in direct contravention of clear and established Arizona law,” as he notes ABOR’s stated purpose with regard to DACA (Deferred Action for Childhood Arrivals) students, whereas ABOR states, “for many DACA students [any higher] rate may prove to be as unaffordable as the full out-of-state tuition rate.”

Brnovich says this conduct risks triggering a federal law that would prohibit Arizona’s ability to provide discounted in-state tuition to any of its residents and require all students, regardless of residency, to pay the same tuition charged to out-of-state students.

Rather than running such risk, Brnovich said “ABOR should be upholding its duty based on its constitutional mandate to make higher education as nearly free as possible for the people of Arizona.”

Fifteen years ago, during the 2002-2003 academic year, Brnovich says the base tuition and mandatory fees for in-state students starting as undergraduates at the three universities was approximately $2,600 per year.

Resident tuition and mandatory fees for the University of Arizona (ASU) Main Campus is now $12,228, a 370 percent increase.

Resident tuition and mandatory fees for Northern Arizona University is now $11,059, a 325 percent increase.

Resident tuition and mandatory fees for all campuses at ASU is now $19,792, a 315 percent increase.

For comparison purposes, the consumer price index over the same period of time has increased by only 36 percent.

According to Census Bureau data for approximately the same period, median family income in Arizona increased by only 27 percent (from $46,723 in 2000 to $59,480 in 2015).

With the inflationary pressures of broad student loan expansion, the national average tuition for public four-year institutions grew by slightly more that 100 percent while Arizona’s tuition climbed by over 300 percent.

Brnovich points out, “In 2002, when the constitutional mandate still mattered to ABOR, Arizona tuition hovered around the 25th percentile nationally. After a mere 15 years of ignoring the constitutional mandate, Arizona’s public university tuition exceeds the 75th percentile nationally.”

He said this means ABOR has raised tuition and fees for in-state students at approximately nine to 10 times the rate of inflation and approximately 12 to 13 times the rate of increase of median family income over the past 15 years.

Brnovich also notes Proposition 300 was enacted in 2006 by the people of Arizona which prohibits the provision of education subsidies to students who are not lawfully present residents of the United States.

A unanimous panel of the Arizona Court of Appeals overruled a lower court decision and found “DACA recipients are not automatically eligible for in-state tuition benefits.”

And, while ABOR believes 150 percent of current in-state tuition is an unaffordable price, Brnovich says that’s “a problem of ABOR’s own making by quadrupling tuition across all three universities in lockstep over a fifteen year period.”

Despite ABOR having no statutory obligation to provide “nearly free” education to any class of non-residents, doing so could trigger a federal requirement to extend in-state tuition benefits to all U.S. citizens and nationals, including those residing out of state, on the same terms that they are extended to any non-resident.

Brnovich asks the court to find ABOR in violation of the Arizona Constitution, require ABOR to fulfill its duties as required by law and sequester an amount of public monies equal to the amounts that are being paid to subsidize DACA students in the event the court ultimately holds that it is an illegal expenditure under the law.

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