What does 'nearly free' mandate mean for AZ universities' tuition?

How much can Arizona’s state universities charge students?

There is a limit — but only on paper.

The Arizona Constitution requires that instruction in the university system be “as nearly free as possible.’’

In 2003, John Kromko, then a Democratic state representative from Tucson and a student at the University of Arizona, cited that clause after the Arizona Board of Regents hiked tuition by a whopping 39.1%. He sued along with another student, charging the board had run afoul of the constitutional mandate.

The justices of the Arizona Supreme Court, however, were not about to step in. Andrew Hurwitz, then a member of the court, said he and his colleagues were in no position to decide that question.

“At best, we would be substituting our subjective judgment of what is reasonable under all circumstances for that of the Board (of Regents) and the Legislature, the very branches of government to which our constitution entrusts this decision,’’ he wrote.

But depending on the Legislature to set limits could prove fruitless. In fact, it was the failure of the Legislature to increase state funding for the universities for the 2003-04 school year that resulted in the regents deciding they needed to impose the 39.1% tuition hike, a figure that translated to about $1,000 more for in-state residents.

Lawmakers have repeatedly refused to either cap tuition themselves — something they last did in 1926 — or force the regents to guarantee incoming students that their costs won’t go up beyond a certain level over four years. The universities themselves, however, have instituted similar programs on their own.

The bottom line, said Hurwitz in 2003, is that the meaning of “as nearly free as possible’’ is a “non-justiciable political question.’’ That’s because tuition is based on the budget adopted by the Board of Regents “after making a series of policy decisions about the quality of the state universities and the level of instruction to be offered.’’

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Once those decisions are made — and once the Legislature decides how much of the cost it will fund — that leaves most of the rest of the price tag to be borne by tuition.

“The cost of tuition could, of course, be reduced if the board and the Legislature made different policy decisions,’’ Hurwitz wrote, such as reducing faculty salaries, increasing class sizes or cutting building maintenance.

Kromko wasn’t the only one to make a run at using the Arizona Constitution to challenge tuition hikes. So did Mark Brnovich when he was Arizona attorney general.

But in a unanimous 2019 decision, the justices did not address the assertion by Brnovich that the sharp tuition increases of the past decade violated the constitutional provision. Nor did they address the attorney general’s argument that the Board of Regents relied on extraneous and illegal outside factors, such as what state-run universities elsewhere were charging, to determine how much students here should pay.

Justice Clint Bolick, writing for the court, said all that is legally irrelevant as Brnovich had no legal right to bring the lawsuit in the first place.

He pointed out that state law allows the attorney general to bring legal actions only when specifically authorized by statute or with permission of the governor.

In this case, Bolick said, there was no legislative authority. And then-Gov. Doug Ducey, who was openly hostile to the legal challenge, never authorized it.