Attorney General Asks Arizona Supreme Court To Review ABOR Tuition Lawsuit Dismissal

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PHOENIX – The Arizona Attorney General’s Office has petitioned the Arizona Supreme Court to review the dismissal of the Office’s lawsuit against the Arizona Board of Regents for the allegedly unconstitutionally high tuition at the state’s three universities.

The Attorney General’s Office challenged the Regents for the “skyrocketing tuition and fees” at the universities.

Since 2017, the Attorney General’s Office has sought court review of Arizona Board Of Regents (ABOR) policies and practices for unlawful tuition and fee-setting actions, as well as public money subsidies paid to ineligible students under state law.

According to the Attorney General’s Office, Arizona’s Constitution requires instruction at the state’s public colleges to be provided “as nearly free as possible.” Despite this, the Arizona Board of Regents has increased tuition and mandatory fees at state universities by over 300% since 2003.

The petition also seeks clarity on a 1960’s case ruling Arizona State Land Department v. McFate. Last month, the Arizona Court of Appeals unanimously concluded McFate’s limitation on the Attorney General’s authority to initiate lawsuits “appears to be flawed.”

ABOR will has 30 days to file a response.

The Arizona Court of Appeals affirmed the dismissal of the tuition case filed by the Arizona Attorney General’s Office in August.

Related article: Arizona Appeals Court Rejects AG’s Tuition Lawsuit Against Regents

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.”

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.

The Appeal Court did note 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.