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What the Devil won't tell you

Stuff costs money: Tuition suit could stiff Az's whole university system

Is the scrutiny of the regents, clarification from court worth the risk?

When Robert Robbins took over the helm of the University of Arizona, he thought he had the chance to run a quality institution of higher learning and not just Cap'n Bobs Cactus Farm and Shootin' Range. But suddenly our state universities could be one bad day in court away from facing a future as a veritable post-adolescent petting zoo.

Arizona Attorney General Mark Brnovich has filed a lawsuit arguing students pay unconstitutionally high tuition, as the state Legislature has slashed funding back to levels seen when Green Day was new. In the context of Arizona's notoriously low K-12 funding and the zeroing out of state cash for Pima and Maricopa County community colleges, the suit seems to complete the siege of public education in Arizona.

Arizona's conservatives have blown up the collectivist model of taxpayer subsidy in favor of a user-pays model for higher education. Now they don't want the user to pay, either. That would render the universities a shell of their current selves because it'd be simply impossible to fund them in a meaningful way.

So the suit threaten the state's economic future and undermines all who earned degrees from the University of Arizona, Arizona State University or Northern Arizona University. We can all be blacksmiths and saddlemakers, I suppose.

I'm not saying the suit doesn't have an upside.

Brnovich argues that the Arizona Board of Regents violates the constitutional provision requiring the state to furnish residents an education "as nearly free as possible." In 2007, the courts essentially said that clause means absolutely nothing because "nearly free" only means what the Legislature decides it means. The more the Legislature chooses to subsidize universities, the cheaper tuition will be — and the less lawmakers want to fund college campuses with taxes, the more students will pay.

The state Supreme Court ruled in Kromko v. Board of Regents that the Legislature's power to appropriate money is immune from lawsuit. Lawmakers can't be sued into spending more than they wish. Discretion is theirs. So why would the framers include Article XI, Section 6 in the state Constitution if they meant for the Legislature to have the discretion it would enjoy without the "nearly free" operative language?

To his credit, Brnovich argues that the provision does mean something. Maybe it doesn't govern the Legislature but it sure has hell governs how ABOR should go about its business. The suit would also force the court's hand to decide at what price tuition is deemed "constitutional."

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I talked to Brnovich's spokesman, Ryan Anderson, who said that opening up that process is a secondary goal of the lawsuit.

Any effort to shine a light on ABOR and hold it accountable plays straight to my heartstrings. The Constitution insulates regents from political winds, so they are also sheltered from public scrutiny. Regents get captured by the presidents they are supposed to oversee. The real-world result is that universities run themselves, with presidents acting like CEOs who control their board.

None of this is good for accountability. So Brnovich wants to pry open the regents' decisionmaking process. Excellent … but … to paraphrase Bob Dylan, he's helping us out of a jam but I fear he's using a little too much force.

Arizonans should be worried Brnovich hits what he's aiming at and wins this suit.

Like a hurricane

The lawsuit argues tuition at the states universities has increased by 370 percent since 2003 while the consumer price index has increased by 36 percent, the state's median income increased 26 percent and all the other public four-year universities doubled their tuition. That's just wrong.

This is kind of like the Texas attorney general suing the city of Houston over all the water damage he saw on a visit last week. Clearly, the city isn't enforcing building codes because Denver doesn't have water damage and Seattle doesn't have water damage. Houston didn't have water damage in June. Someone over at code enforcement is obviously falling down on the job.

Brnovich's suit is about as ignorant – willfully so – as missing how a hurricane blew through Houston and why that may cause flooding. Neither inflation, home prices nor the tuition charged by universities in other states require the generosity of the Arizona Legislature. The Leg, under Republican Gov. Jan Brewer, cut funding for Arizona's state universities more than any other legislature cut college funding in any other state.

Taxpayers or students are going to foot the bill for the universities. It's an appropriation or it's tuition. The Legislature today sends UA $198 million each year. Lawmakers spent a skosh more in 1993-1994. That's pre-"Friends"-era spending.

The lawsuit uses 2003 as a starting point and it just so happens, I was covering higher education for the Tucson Citizen back then. I can tell you how the tuition increases happened. In fact, I wrote a story predicting them. In 2002, the UA's in-state tuition ranked dead last out of 50 peer institutions. So then-President Peter Likins and the two other university heads concluded nearly-free-as-possible meant the 67th percentile. They called it "the top of the bottom third" among peer institutions.

"As long as we are charging less than most people, then I think the constitutional question goes away," Likins told me back then.

One problem. In 2003, those peer institutions clustered around the 67th percentile were seeing cutbacks in taxpayer subsidies, too. Everyone was raising tuition so Arizona's schools rode that wave up.

After the 2002-2003 recession, Gov. Janet Napolitano and lawmakers began restoring funds to the schools and tuition increases slowed.

Then came the Great Recession and the state's finances absolutely collapsed. Arizona's state universities saw the biggest cuts of any state in the country. Not only did the Board of Regents have to jack up to tuition just to tread water but they had to do it while peer institutions were doubling their prices.

Finally, state funding in higher education nationally fell by 16 percent between 2003 and 2015, forcing higher tuition across the country. Arizona's schools felt budget cuts of 33 percent. Market costs were rising as support here was falling an Arizona schools started from the back of the pack when their leaders decided it was time to get competitive.

The upshot is that UA students now pay $12,817 for in-state tuition. The average state university charges $9,650 because taxpayers in other states foot a larger share of the bill to give their kids college educations.

Regents raised tuition more than national peers because Arizona's tuition already lagged, the schools saw their taxpayer support drop more than other states and the market kept increasing the price of running a university.

It's worth pointing out here that the Board of Regents is a conservative body. Each sitting member was appointed by a Republican governor.

Ink blot of irrelevance

Arizona's Constitution doesn't saddle those other states with an "as nearly free as possible" requirement.

Then again, the Arizona Supreme Court ruled our state isn't even governed by that Constitution in any meaningful way.

The court's ruling 10 years ago reached conclusions that added up to unshackling the Board of Regents from any sort of constitutional fidelity.

The judges ruled:

  • Tuition is determined by what the Legislature kicks in.
  • The Legislature enjoys absolute immunity from lawsuits related to its power to appropriate money. That decision is political, decided by voters who elect the lawmakers.
  • Even if the court wanted to rule tuition was unconstitutionally high, what the constitutional price would be is neither "judicially discoverable and manageable."  That's Judgespeak for "Dear Lord, we wouldn't even begin to know how to decide a constitutional price so get this lawsuit away from us."
  • There may be a constitutional requirement, but that's for other branches to define. I guess students could petition the State Land Department for constitutional relief. Won't do much good ... but it's an option if the state courts are going to punt the question.

One could argue that the Legislature has an obligation to fund the universities at a level higher in absolute dollars than 25 years ago — when today's college graduates were born. One could absolutely argue, that the model the Legislature chooses can't be based on market rates.

In the mean time, politics decide tuition in Arizona. Don't like it? Elect new lawmakers and elect a new governor.

There's a more famous example of a prominent jurist deciding a constitutional provision is just too hard to parse to have any legal relevance. Judge Robert Bork testified during his doomed confirmation hearing about the 9th Amendment to the Constitution, which says rights un-enumerated in the Bill of Rights are not to be denied or disparaged.

When Arizona's own Sen. Dennis DeConcini questioned Bork about whether the amendment established rights not listed in the Constitution, the strict-constructionalist gave an answer still discussed in legal circles:

I do not think you can use the 9th Amendment unless you know something of what it means. For example, if you had an amendment that says "Congress shall make no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

So the Arizona Supreme Court ruled the "nearly free as possible" language as something akin to an ink blot.

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It's there. It probably means something. It just has no real practical impact on the law.

Brnovich's lawyers crafted the suit as a laser-guided strike against the Board of Regents, utterly ignoring the Legislature, Anderson said.

Practically, it's ignorant and dangerous. Legally, it's smart because any reference to the Legislature's contribution would bring the Kromko ruling crashing down on Brnovich's head.

His team instead focuses on the regents' decision-making process as a whole, and whether they are governed by the constitutional mandate, Anderson said.

To that end, why are regents charging students mandatory fees for athletics and the student rec center? Why are the universities admitting so many out-of-state students? Why are the schools hiring so many new faculty members?

In other words, are regents governed by cost-effectiveness first? If not, the universities operational mindset is out of whack with Article XI, Section 6 of the Constitution.

So Brnovich treats tuition as an act of discretion. It's as if regents woke up one day and said together, "you know what would be cool? How about we jack up tuition by 370 percent over 10 years. Think of all the toys we could buy."

The regents wholly disagree with the idea that they have wanted to raise tuition, Board Chairman Bill Ridenhour responded to Brnovich's lawsuit: "The challenges of rising college costs and student debt are not news. Rather, they are largely the result of a massive defunding of public higher education accompanied by a seismic cost shift that has moved education from a shared responsibility to an individual responsibility. "

To win for losing

The suit is a bit odd in that both parties seem prepared to lose.

Brnovich's office would be happy if they just forced transparency and caused a discussion about how tuition rates are set, Anderson said.

The suit wasn't quite an accident but it did get bigger than intended in a hurry, Anderson said. Brnovich had been discussing a suit against regents' decision to charge Dreamers (Deferred Action Childhood Arrivals recipients, if we must) in-state tuition. News outlets are reporting Brnovich folded the Dreamers provision into the "nearly-free" lawsuit. In fact, the "nearly-free" counts got laid on top of the lawsuit to broaden the discussion.

ASU President Michael Crow defended the Dreamers' tuition in the broader context of all tuition.

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Ridenour's letter begins by welcoming the lawsuit as an opportunity: "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.' We can now address who will pay for that mandate. "

And maybe, just maybe, regents could win for losing. If the courts rule there is a tuition that exceeds what is unconstitutional, then the courts would necessarily have to decide what constitutional price would look like. That may – may – open the door for the regents to compel lawmakers to make up the difference.

Man, though, that's an awfully tricky bank shot.

Headlong into a slippery rock

The courts could just as reasonably rule tuition must be, say, equal to the average among peers and still uphold the Legislature's immunity.

Regents have the power to set budget and tuition and will naturally crash into the Legislature's priorities. If regents can spend wildly, charge next to nothing and expect lawmaker to stick taxpayers with the bill, that would irritate any state senator. That's the conflict the state Constitution establishes.

Arizona has become so myopic about cost controls that it seems to deny the reality that shit costs money and the market is set by the 49 other states that actually know that (minus Mississippi, of course). It costs bucks to run a major research institution that cuts on the edge of tech and science, while teaching 40,000 students.

And that's a problem for every single one of us with a degree from one of our universities. Likins once told me he went to Stanford University when its reputation wasn't nearly what it would become. As Stanford's reputation grew, Likins' degree paid him great dividends. The opposite is true. If UA, ASU and NAU earn a reputation as trash schools down the road, then the fancy script on our diplomas will count for less and less. They might as well say Slippery Rock. If you don't know Slippery Rock, there's a bloody reason for that.

So the Legislature deplores collectivist subsidies. Fine. Whatever. Just realize ideology comes with a cost because eventually it escapes the court of public opinion – or the court of law – and runs headlong into reality.

That's when the bill come due.

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 things that the Devil won’t.

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