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AG Brnovich sues Regents

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Arizona Attorney General, Mark Brnovich.

Arizona’s Attorney General Mark Brnovich filed a lawsuit against the Arizona Board of Regents, the governing board of Arizona’s three public universities, alleging that the regents have unconstitutionally raised tuition and fees for in-state students over the last 15 years. 

“With its unconstitutional tuition-setting policy, ABOR has abandoned its duty to serve as a check on the university presidents, and has engaged in an unprecedented series of lockstep tuition hikes across Arizona’s three public universities that has resulted in a tuition increase of over 300 percent at each school,” Brnovich claims in the lawsuit.

The lawsuit, filed Sept. 8 in Maricopa County Superior Court, states the regents violated Arizona’s specific constitutional mandate to provide university education “as nearly as free as possible” to Arizona residents in three main ways.

First, the lawsuit claims the regents unlawfully take into account the price tag of peer institutions and the availability of financial aid for in-state students when setting tuition.

“ABOR has misinterpreted its ‘nearly free’ mandate (which is focused on the cost of furnishing instruction) to mean ‘affordable,’” Brnovich’s office wrote in the lawsuit. 

RELATED: ABOR grants in-state tuition to DREAMers

Lastly, the lawsuit claims the regents are illegally spending money to provide Deferred Action for Childhood Arrivals recipients in-state tuition, in violation of Arizona’s 2006 Prop 300, and could open up the state to federal lawsuits.

A case addressing the legality of offering in-state tuition rates for DACA students is already headed to the Arizona Supreme Court.

The lawsuit is not unprecedented. To the Arizona Board of Regents Chair Bill Ridenour, it appears more as a publicity stunt.

“This suit will allow us to present the facts to a court of law and seek clarification of our constitutionally mandated obligation to provide ‘instruction as nearly free as possible,’” Ridenour wrote in a Sept. 11 press release. “We can now address who will pay for that mandate.”

Ridenour argued increasing tuition and affordability concerns are not unique to Arizona students. What does make Arizona unique, according to Ridenour, is that it ranks No. 48 in state legislature appropriations for higher education.

“Just 10 years ago, the state funded approximately 75 percent of the educational costs for a resident student,” Ridenour wrote, “This year, the state will fund approximately 34 percent.”

Governor Doug Ducey came out against the lawsuit and in support of the regents, calling it unnecessary.

“Our universities are accessible and affordable,” Ducey said. “It’s already been litigated and answered.”

This ligation came in 2003 when four University of Arizona students sued the regents when they raised tuition 39 percent in a single year, claiming they violated the same “nearly free” clause.

The Arizona Supreme Court ruled that tuition increases are a political issue and not within their purview.

They noted the legislature could affect tuition costs with their appropriations and concluded the regents have the discretion to interpret the tuition revenue needed to support Arizona’s universities.

During Ducey’s first term in office, he cut $99 million from state appropriations to the public universities as part of an effort to balance the state’s budget.

While some funding has returned, $32 million last year, most of it comes in the form of one-time dollars.

In his refute to the lawsuit, Ducey pointed to the universities’ high national rankings, in particular Arizona State University’s status as No. 1 in innovation for the third year in a row.

Addressing DACA, Ducey said, “I’ve always thought that a child that graduates from an Arizona high school is certainly an Arizona student and certainly should have access to in-state tuition at our universities.”

However, Ducey did agree with President Trump’s decision to rescind the program because a long-term solution must come from Congress, he said.

UA President Robert Robbins and Associated Students of the University of Arizona President Matt Lubisich agreed that DACA students should receive in-state tuition.

“If the courts do not rule in DACA students’ favor, ASUA and the UA will be right there to make sure these students can still afford to attend college,” Lubisich said.

In recent years, Lubisich said fees have been rising at an increasing and unsustainable rate. He agreed it is the regents’ job to keep tuition low and that they can pressure the universities to cut unnecessary spending.

Yet, according to Lubisich, keeping in-state tuition low starts at the state legislature.

“We have been losing state funding for the last few years, and that creates a gap that the university and regents have to make up for by raising tuition,” Lubisich said. “If the state allocates more resources to the university, I think that will help keep tuition low.”

RELATED: Arizona Board of Regents approves deferred maintenance project, in-state tuition for veterans, land acquisitions

The student voice is key and should play a role in tuition-setting, Lubisich said. He encouraged students to attend the regents’ tuition hearing session to speak or to contact ASUA so they can lobby the university to ask for fewer increases from the regents.

Every party involved wants tuition to be as free as possible. The conflict emerges when setting the balance between spending cuts at the university level and increased state appropriations.

In recent years, the regents have lobbied the state legislature to fund their resident student funding model, which would increase the percentage of in-state tuition paid by the state legislature.

The regents have also slowed the growth of tuition for in-state students, increased need-based aid and improved graduation rates and outcomes.

“There needs to be a rational, statewide discussion, without political pandering, regarding our entire education structure and funding model for K-12 and higher education, including university education,” Ridenour said.


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