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Attorney: AG Brnovich has no legal right to challenge state university tuition

Arizona Attorney General Mark Brnovich talks to supporters at a Republican election night party Nov. 4, 2014, in Phoenix.
Photo by Associated Press.

Arizona Attorney General Mark Brnovich talks to supporters at a Republican election night party Nov. 4, 2014, in Phoenix.

PHOENIX — Lawyers for the Board of Regents told a judge Friday that Attorney General Mark Brnovich has no legal right to challenge the tuition it sets for the state’s three universities -- or even the policies used to come up with those numbers.

Joel Nomkin pointed out the last challenge came more than a decade ago when former lawmaker John Kromko and others sued following the regents’ decision to hike tuition by close to 30 percent. They charged -- as Brnovich does now -- the board with violating a constitutional provision that instruction be “as nearly free as possible.’’

Nomkin reminded Maricopa County Superior Court Judge Connie Contes that the Attorney General Office -- then actually defending the regents -- argued that such questions are beyond the reach of courts, with the language “not susceptible to judicially discoverable and manageable standards for resolution.’’ The Supreme Court agreed, tossing out the claim.

“The only thing that’s changed since Kromko is that the attorney general has switched positions and is now suing his client,’’ Nomkin said.

Assistant Attorney General Beau Roysden does not deny that ruling. In fact, he essentially is conceding that there is no right to challenge the specific tuition figures now exceed $10,000 a year for Arizona residents.

But Roysden said what his boss is contesting is the policy of how the board got to those numbers.

He contends that the plain language of the Arizona Constitution requires the board to set tuition based solely on how much it actually costs to provide instruction. Roysden said the board instead considers eight factors, ranging from how much other state universities charge to the availability of student loans and other aid.

“Out of eight factors, none of them are how much does it actually cost to instruct a student,’’ he said.

Hanging in the balance is the claim by Brnovich that board members have “dramatically and unconstitutionally’’ increased the cost of going to one of the state’s three universities by anywhere from 315 percent to 370 percent since the 2002 school year. On an annualized basis, he said, that computes out to 14.1 percent, “the third fastest rate of growth among all 50 states.’’

Brnovich has not disputed that some of that is likely due to lawmakers sharply decreasing the dollars supplied for higher education. Legislative budget analysts have found that since 2008 state aid went from $9,648 per student to $4,098, even before the effects of inflation are considered.

But Brnovich contends all of that is legally irrelevant. He said the only thing that matters is that the tuition be linked to the actual cost of instruction.

“The purpose of the attorney general’s suit is to stop and recover the illegal payment of public monies, (and) make tuition more affordable for all Arizonans,’’ Roysden told Contes, saying that . And he told the judge the issue extends beyond the cost of tuition for full-time students.

He said Arizona residents who want to attend college on a part-time basis are paying more on a per-class basis than those who go full time and that in-state students in some cases pay the same tuition for online courses as those who do not live here.

“And ABOR is charging mandatory fees for things like health, athletics and recreation, even if a student just wants to attend class and receive instruction towards his or her degree,’’ Roysden said.

Nomkin said none of that matters.

He said the Supreme Court, in the Kromko case, essentially said that if people are unhappy with how the board is setting tuition they have a remedy: Take their case directly to lawmakers, as it was the Legislature that gave the regents the authority in the first place -- and who always have the power to take it away and set tuition themselves.

Only part of the lawsuit is over that question of how tuition is set.

Roysden also told Contes the regents are acting illegally in allowing “dreamers’’ who are Arizona residents to attend the state’s three universities paying the same tuition as other in-state students.

That is based on a 2006 voter-approved law that says state dollars cannot be used for tuition waivers or assistance who is “without lawful immigration status.’’ Brnovich contends that while the Deferred Action for Childhood Arrivals program allows people who arrived in this country illegally as children to remain, they still are here contrary to federal immigration laws.

Roysden contends the only way to determine if the tuition for dreamers is being subsidized is to ascertain what it actually costs to teach students. And that, he told Contes, also opens the legal door for the attorney general to ascertain the actual cost of instruction as well as challenge that as not being constitutional.

Whatever Contes decides is unlikely to be the end of the dispute. If she agrees with Brnovich, that sets the stage for a trial on whether the regents are complying with the Arizona Constitution. But Brnovich is virtually certain to appeal if she sides with the regents and dismisses the case.

The judge gave no indication when she will rule.

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