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Tuition in Arizona is unconstitutional ... suckers!

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What the Devil won't tell you

Tuition in Arizona is unconstitutional ... suckers!

It's 'possible' to charge less, but state isn't bound by key provision

  • sergiorivas/Flickr

University of Arizona administrators are putting a bow on the crapsicle they have to package for students and faculty after the Legislature slashed campus budgets yet again. No other state has gone after state universities like Arizona, which now ranks 49th of all states in higher ed spending to go along with ranking 49th in K-12 spending. Yay, knowledge economy. 

Meanwhile, the Arizona Board of Regents continues to mull a potential lawsuit against the governor and Legislature, testing the constitutionality of tuition hikes continuing in Arizona, where the state's Constitution declares that tuition shall be "as nearly free as possible."

No. It's not constitutional to cut college budgets this much. It's not even a distant cousin to constitutional. In fact, if it shows up at a Constitutional Family reunion have crazy uncle Earl and that 'roided up brother in-law in the muscle shirt toss it from the picnic before it even eats a Pringle.

Still, there's not a damn thing we can likely do about it. As in most matters of law, the answer depends on your definition of "is," and whether or not the spelling of "is" has any relevance to the alphabet.

This story is going to be a little like finding that everyone you pulled for in the wicked awesome movie "Alien" dies by the end of the third and far inferior movie. When you go back and watch "Alien" after "Alien 3" you are left thinking ... so?

I was going to originally set out to explain how Gov. Doug Ducey needs to be a little less cute with his opposition to tuition increases because he favors a "user pays" model that relieves the taxpayers at large of footing the bill. I explained this column idea to Chris Sigurdson, VP of Communications at the University of Arizona, last week and he glanced up quickly and said the magic words: "We use the term public good versus private good, but OK."

Right, but it's my column and my point, so back off and let me ask more questions. Then as the days went by, what Sigurdson said started to gel in my head. Well, that's just it. Public good versus private good ... hmmm. Oh! Arizona's tuition is unconstitutional, or rather, Arizona's appropriation to the university system is unconstitutionally low. It's a public good.

What is a public good? Exactly! There are a lot of definitions — and I'm not going to litigate them all — but suffice it to say, it's a service if you like that you don't pay for or a service you pay for and hate providing because you never use it.

Public goods versus private goods are at the root of all that anger, angst and acrimony in modern politics, just about everywhere. It is the daily tug a war between the Left and Right. The Left wants more to be a public good and The Right wants more to be a private good.

Market-rate college?

That "universities-are-businesses" model falls flat on its face in Arizona.

"If you were running the university like a business," Sigurdson said with a flash of the obvious reporters need sometimes, "you would charge the market rate."

Bingo. A private good is a market rate purchase. The Arizona Constitution forbids the state from charging the market rate. It does not say schools shall be provided as "cost effectively as would be profitable on the free market." Therefore, a college education is clearly intended to be a public good. It's settled. Article 11 Section 6 of the Arizona Constitution says as much:

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.

To most people the meat of that line is "nearly free," but it's not, at least to my way of thinking, because the Constitution provides another provision in Section 1 of Article 11. 

The legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system, which system shall include:
1. Kindergarten schools.
2. Common schools.
3. High schools.
4. Normal schools.
5. Industrial schools.
6. Universities, which shall include an agricultural college, a school of mines, and such other technical schools as may be essential, until such time as it may be deemed advisable to establish separate state institutions of such character.

The onus is on the Legislature to enact the laws and maintain the school system. Sure, they can farm it out. What is not in dispute is that the universities are clearly constitutionally defined public goods.

Finally, there is Article 11, Section 10, which tells the Legislature to "make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions, and shall make such special appropriations as shall provide for their development and improvement.” 

Schools should be nearly free as possible. The Legislature is responsible for them. The Legislature shall tax and spend to get it done.

My day is done. Set me up with beer money, Dylan. The world awaits!

History lesson

However, to drive it home and provide some fun history — and history is fun, damn it — I'm going to throw in some "originalist" intent to get into the heads of Arizona's founders. There was apparently little discussion about the provision, which suggests to me it was blindingly obvious what the passage meant, but in courts it's a big black cloud of "who knows?" Let's go back and look at where those hardscrabble coots were politically in the day they built Arizona by bringing themselves up by their own bootstraps.

Arizona became a state in 1912, with the adoption by popular vote of its constitution. Something else happened politically in 1912. Woodrow Wilson was elected president. That's not unlike describing "Raiders of the Lost Ark" by saying Indiana Jones found something in Tanis and it got put in a box. True — but you are missing some sword fights, melting faces, crawling under a moving truck and Forrestal on a wall of spikes.

The election of 1912 makes the election of 2008 look like the election of 1996. Wow. Was that a campaign. I won't go into all the swashbuckling, but at one point a leading candidate was shot and finished a four-hour speech because that's how much of a bad-ass Teddy Roosevelt was for most of his life (and how cool is it that the crowd didn't scatter, run home or tell nearby cameras "I can't believe this happened here!").

In Arizona, Wilson won the state with 43 percent of the vote. Roosevelt came in second at 29. Both ran on progressive platforms and together brought home about 71 percent of the vote. William Howard Taft, the sitting Republican president and flag carrier for conservatives, finished fourth behind Socialist Party candidate Eugene Debbs. That same election, voters in Arizona approved by a three to one margin a major plank in the progressive agenda implementing woman's suffrage. Yes, Arizona's roots are hardscrabble progressive and not hardscrabble conservative as legend would suggest.

Flash forward 103 years and Arizona is under new management. Republicans in the Legislature see government spending as theft from hard-working Arizonans and a threat to the economy because of the taxes required to pay for public goods. There were recessions and shortfalls and more recessions and then a rogue shortfall. Universities got cut time and time again as did taxes that would bring in more money that never seems to materialize.

So with the state backing money out, tuition is going up and "nearly free" looks nothing like it did for the first 70 years after statehood. Through the late 1980s in-state residents paid no tuition, only fees. In 1992-93, a $2,400 Pell grant paid for my tuition and bought my books as well. It took 70 years to get to $2,000 a year, with nearly free as possible serving to guide lawmakers from both parties. It took 20 more for it to break $10,000 a year.

I'm going to throw some numbers at you that Sigurdson handed me in hard copy, when I talked to him in his office last week. They are off bar graphs and charts so they aren't to-the-digit.

In 2008, the UA's budget was supported by $210 million in tuition and $420-ish million from the state general fund. In other words, $2 from the state for every $1 in tuition. In 2015, that ratio has all but reversed to just under a $2 in tuition to  every $1 in state support.

Here's where Ducey's argument comes into play. Universities should start acting like businesses and go out and hustle for other money, assuming the general fund support will not return.

Well, they do. The single largest revenue source on the UA campus is neither tuition nor general fund support. Those two account for 28 percent and 15 percent of university revenues, respectively. The percentages have flipped from 2008 to 2015 almost to the decimal point. Grants and contracts account for 35 percent of the school's budget, up from 31 percent in 2008 (having come through a recession and federal sequestration of National Institute of Health and National Institute of Science funds — not effing bad).

However, those dollars are heavily restricted, not available in equal amounts for all departments and not at all for the benefit of all students equally. So, it's the unrestricted dollars that do a lot of the teaching and the student credit hours at the UA. More than one third of the upper division hours on campus are provided by the Colleges of Humanities, Fine Arts and Social and Behavioral Sciences, who don't have ready access to NIH or NIS grants. Those departments get the bulk of their from unrestricted dollars in the form of tuition and state dollars because they are a public good to be available as near to free as possible.

But what does that mean? Nearly free? For Ducey and his friends, it's probably a steal.


Don't get caught up on the "nearly free" part, because you'll go mad trying to figure out that number and whether it's constitutional. Focus instead on the "as possible," part. Possible to whom? You ask.

The UA has peers. There are 15 institutions like it in America that the school compares itself to — the suspects you would, well, suspect: public schools with big campuses and great football programs.

In fiscal year 2006, the UA overtook the average state general fund support compared to its peer institutions, reaching in 2008 $450 million in public support for the purposes of making Arizona college educations as near to free as possible. The schools on the list in places like Badgertown, Aggieville and Gatorland got compared to $420 million on average.

In 2013, the UA's number had fallen to just below $280 million and began trailing peers by more than $100 million. What happened in 2008 proves it's more than possible for the state to support higher ed at a higher rate. The problem is that the Legislature goes into anaphylactic shock at the thought of providing necessary tax revenues to fund programs — because it's bad for business, they say.

Well, after 20 years of that approach, the state hit the economic crash and suffered a massive fiscal collapse as business here wasn't strong enough to weather the storm (oh, heavens no, I'm not questioning the ship builders who don't believe in keels or rudders). The attitude persists.

We are talking about as nearly free as possible. Other states are doing it. Other states pay more for colleges than we do and they don't have that mandate. Even if they did, it's possible to do more. They prove it's possible. What is clearly unconstitutional isn't the tuition price. It's the fact that a state with a constitutional requirement vested in the Legislature to provide a college education as nearly free as possible finds it impossible to climb beyond ranking 49th out of 50 spots in general fund support to universities. Why? They in the Legislature, what's the legal term? Oh. "They don't wanna."

How easy to beat is that?

Well, Peyton Manning is a wombat, the sun is in the New York City subway system and Legislature doesn't have to follow the Arizona Constitution when it comes to spending money. Welcome to The Law.

When "nearly free" point was challenged in 2007 in the case Kromko v. Board of Regents, the courts ruled that the state Legislature doesn't have to provide money to make tuition as nearly free as possible. Actually the courts took it further and said the Legislature can spend whatever and however little it wants, no matter what the constitution says because they have "absolute immunity for appropriations."

When did the court system turn into the playground at recess? "No, I don't have to because mom said I have absolute immunity and get to climb on the monkey bars all I want!"

Yep, you can't sue the Legislature for not funding to a constitutional level because ARS 12-820.02 forbids it. When in God's name did a law trump a constitutional provision? When the court says it does.

In another other case, the courts did rule that the state must fund an inflation fighter approved by voters with very specific funding formulas and even that took an appeal. So absent the framers sitting down with bar graphs and charts, describing a not-yet-existent consumer price index, judges are likely to give the Legislature a pass and confer "ultimate cloak of impregnable awesome invisibleness" on the Legislature.

One legal website defended the ruling and argued that three different sections of the Constitution have nothing to do with one another because they are not in the same section. Does that make sense to those of us who must follow every aspect of the law? No. Does it to lawyers? Oh, absolutely.

And they wonder why we hate them.

Now, as much as I'm not a lawyer but am trying to explain why it seems pointless, Board of Regents President Mark Killian is the one asserting the unconstitutionality of the state appropriations and he was once a very powerful speaker of the House of Representatives. He believes that there might be something to the argument. Also, it's possible that "absolute immunity" is neither absolute or confers immunity on the Legislature. However, the courts don't like to allow citizens to sue the government for doing the job as the government sees fit. To them tuition is a political question best left to lawmakers to attend to safe from political retribution in gerrymandered districts.

Maybe there's a Viking Law of Immolation that pertains based on Nordic maritime precedence that can undo the idea of immunity.

Meanwhile, the framers had no idea what they were talking about when the lefties who wrote the constitution declared nearly free as possible. And "is" is now spelled "izc."

Blake Morlock covered Arizona government and politics for 15 years, including 11 in the Tucson Citizen. He also worked on Democratic Party campaigns in the field of political communications. Now he’s telling you what the Devil won’t.

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