Attorney General Mark Brnovich
Originally published Friday, January 12, 2018 at 05:55a.m.
PHOENIX – Attorney General Mark Brnovich is defending his contention that he has a legal right to challenge the tuition charged to Arizona residents attending state universities.
In a new legal filings Brnovich tells Maricopa County Superior Court Judge Connie Contes that Arizona law clearly permits him to sue to “enjoin the illegal payment of public monies.’’ And the attorney general says that the policy of the Arizona Board of Regents allowing those in the Deferred Action for Childhood Arrivals program to pay the same as other Arizona residents is a subsidy of public funds that runs afoul of a 2006 voter-approved law limiting in-state tuition to those “lawfully present’’ in this country.
But Brnovich also wants Contes to accept his contention that his right to sue over DACA tuition necessarily allows him – if not requires him – to charge that the regents are violating a constitutional provision that “instruction be as nearly free as possible.’’
The new filing comes after attorneys for the regents have asked Contes to throw out the entire case.
They argue that Brnovich can sue only when he has specific legislative authority or permission of the governor. And they say he has neither.
Whether Contes accepts Brnovich’s logic could determine whether he gets to pursue his claim that the universities are charging too much to Arizona residents and have to lower what they charge. And that could extend to eliminating various fees such as for athletics or even forcing the universities to change their missions to jettison expensive programs that he contends are subsidized by unnecessarily high tuition.
The lawsuit is built on numbers.
Brnovich says current 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 approximate period,’’ he said. And Brnovich 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 100 percent.
And Brnovich said median family income in Arizona increased only 27 percent during a comparable period.
The heart of his lawsuit, though, is that the Board of Regents sets tuition not based on the actual cost of furnishing instruction but includes “a substantial subsidy for other university pursuits.’’
But Brnovich won’t get to make any of those arguments if Contes accepts the contention by lawyers for the regents that he has no legal basis to challenge the overall tuition rates.
Brnovich, for his part, contends the issue of what DACA students pay is “necessarily linked to the underlying tuition and fee-setting policies used by the Arizona Board of Regents.’’
The way he sees it, if the universities were not offering in-state tuition to DACA recipients – he contends illegally – the schools would not have to charge so much to all other students.
Looking at it another way, if overall tuition for Arizona residents was a lot lower, then the universities could legally charge DACA recipients a rate that, while higher than what legal residents pay, would still be less than they’re paying now as in-state residents.
Contes has set no date to hear arguments.