PHOENIX — The Arizona Court of Appeals affirmed the dismissal of the tuition case filed by Arizona Attorney General Mark Brnovich against the Arizona Board of Regents on Tuesday.
The court upheld a 2018 decision by the Maricopa County Superior Court that Brnovich lacked standing.
The Attorney General’s (AG) lawsuit alleged that tuition is too high at the state’s three public universities in violation of the Arizona constitution’s guarantee of a college education that’s “as nearly free as possible.”
The AG argued specifically:
The process by which ABOR has increased tuition contravenes the Arizona Constitution’s mandate that “the instruction furnished at Arizona’s public universities shall be as nearly free as possible.” ABOR nonetheless adopted a tuition-setting process that did not consider the cost of instruction as a factor when setting tuition, but rather looked at other factors such as students’ ability to pay by taking on debt. Subsequently, tuition has skyrocketed at Arizona’s three public universities.”
The Regents (ABOR) continue to claim that the universities have had to struggle with declining state support. However, the AG noted in court filings:
ABOR increased tuition in lock-step across all three universities by over 300%, greatly exceeding funding cuts from the Legislature. ABOR also has imposed mandatory fees unrelated to instruction and charged higher rates to part-time and online students.
Maricopa County Superior Court Judge Connie Contes dismissed the AG’s case in 2018, claiming that the AG needed the permission of the governor or Legislature before he could file a lawsuit against ABOR.
The court pointed out that the Supreme Court may have erred in the underlying case:
As noted above, the State has conceded that its proposed interpretation of A.R.S. § 41-193(A)(2) is foreclosed by McFate, 87 Ariz. at 145-46. We concur in this decision because we are bound by McFate’s holding that the authority to “prosecute” actions under A.R.S. § 41-193(A)(2) does not authorize the Attorney General to commence or initiate actions. We write separately, however, because McFate’s interpretation of “prosecute” in A.R.S. § 41-193(A)(2) appears to be flawed. The decision overlooks substantial evidence of the plain meaning of the phrase in 1953 when the legislature amended the 1939 Code 4-607(a) to authorize the Attorney General to “prosecute and defend” actions, and adopts an interpretation that ascribes different meanings to “prosecute” within the same sentence.
An appeal by the AG’s office is expected.