Judge tosses lawsuit challenging tuition hikes at Arizona universities

Attorney General Mark Brnovich has no legal right to challenge the tuition the Board of Regents sets for the state’s three universities — or even question the policies used to come up with those numbers, Maricopa County Superior Court Judge Connie Contes decided Thursday.

In a brief ruling, the judge accepted arguments by attorneys for the board that Brnovich can file lawsuits only when he has specific legislative authority or permission of the governor. In this case, Contes concluded, he has neither.

More to the point, he is unlikely to get the go-ahead from Gov. Doug Ducey to challenge the tuition hikes.

Ducey won office in 2014 at least in part on blaming Democrat Fred DuVal for increasing the cost of going to state-run universities.

But the governor told Capitol Media Services last year he believes “our universities are accessible and affordable.” And Ducey at the time also criticized the attorney general for seeking to resolve the issue by filing suit — and for doing so without first talking to the regents.

“I’m not a big fan of lawsuits,” Ducey said.

Brnovich reacted angrily, not so much to the judge’s ruling but to the Board of Regents for challenging his right to sue.

“It’s disappointing that the regents and the universities didn’t want to allow us to have our day in court to argue about skyrocketing tuition costs,” he said.

The attorney general conceded that he and his lawyers have used similar tactics to have lawsuits against the state thrown out on technical grounds rather than having to litigate the merits of the claim. But Brnovich said that’s “completely different” because in those cases his office is trying to protect the state and its taxpayers against claims.

Brnovich said he is weighing his options, including an appeal.

“If the attorney general doesn’t have the authority to bring this lawsuit, then who does?” he asked.

Central to the claim is a constitutional provision that instruction at state universities be “as nearly free as possible.” Brnovich contends that universities are violating that, citing not just the actual tuition but also various mandatory fees for programs like athletics.

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His lawsuit is built on numbers.

In filing suit, he said tuition and mandatory fees at Arizona State University are 315 percent higher than they were in the 2002-2003 school year. That figure is 325 percent for Northern Arizona University and 370 percent for the main campus of the University of Arizona.

“In contrast to the increases in tuition, the consumer price index has increased only 36 percent over the same period,” Brnovich argued. And he said even if public universities are held to a different standard, what’s happened in Arizona outstrips the national average tuition increase for similar schools of slightly more than 19 percent.

But the heart of the challenge is Brnovich’s argument that the tuition set by the Board of Regents is based not on the actual cost of furnishing instruction — what he said is the constitutional touchstone — but also includes “a substantial subsidy for other university pursuits.”

All that is irrelevant, Contes concluded, since he has no right to sue.

There was a provision in 2015 legislation that would have clarified that the attorney general has the right to file suit when “deemed appropriate,” all without the consent of the governor.

Ducey vetoed the measure.

But he said at the time the issue wasn’t that broader right to sue but that the main point of the measure was to try to reclaim federal lands in the state. Ducey said he did not want to go down that path until he saw recommendations from a planning committee that had been set up.

Even if Brnovich convinces an appellate court that he does have the right to sue, that does not mean he will get to make his case. The Regents have other legal arguments on their side, including the claim that the issue of what is appropriate tuition is a “political question” beyond the reach of the courts.

In a response to the ruling, Katie Paquet, a spokeswoman for Arizona State University, questioned how much the taxpayers had spent on the lawsuit.

Brnovich handled the matter in-house, with his own lawyers. But someone will have to pay the tab of the outside attorneys hired by the Regents to defend them in court.

But Brnovich brushed all that aside, saying whatever the lawsuit costs “is a fraction of what they’re spending in failed football coaches.”