The basis of the threatened suit is a clause in Arizona's constitution, which reads:
"The university and all other state educational institutions Shall be open to students of Both sexes, and the instruction furnished Shall be as nearly free as possible."Putting aside the interesting capitalization, and pausing to note that I was very pleased during my years at both NAU and ASU that they had seen fit to let girls in, we will focus on the last few words: What the @#$% does “... as nearly free as possible” mean?
I hate to disillusion the ABOR, but the issue would seem to be settled (as they no doubt know), since they were on the other side of a suit (Kromko v. Arizona Board of Regents) on the same point several years ago.
When it comes to defining the phrase, students, administrators and experts all seem to disagree.
“‘As nearly free as possible’ is simply what it says,” ASA chairman Brad Busse said. “It is minimal tuition with a lot of state funding and support, and no tuition increases.”
But the Arizona Board of Regents and the state attorney general’s office have agreed on a different interpretation — that the cost of tuition and fees at each of the state’s universities must be in the lower third of public institutions nationwide.
ABOR spokeswoman Andrea Smiley said the lower-third rule is just a ceiling figure that the Board works with, and many factors beyond that are taken into consideration when setting tuition and fees.
“The Board has long considered, and continues to consider, a wide variety of factors when setting tuition,” Smiley said in an e-mail.
Other factors ABOR takes into consideration include the amount of financial aid available and the cost of running quality institutions.
“The lower one-third is but one measure,” Smiley said. “Other measures and analyses by the regents do get at the issue of families’ ability to pay.”
The Kromko case
ABOR and the Attorney General’s office used the lower-third rule, however, when a group of UA students brought a lawsuit against them in 2003, in a case known as Kromko v. Arizona Board of Regents.
The students claimed tuition increases for the 2003-04 academic year were excessive, and thus violated the “nearly free” clause.
They did not challenge the constitutionality of the Board’s interpretation of the provision, however.
As a result, the Arizona Supreme Court dismissed the case in 2007, arguing the issue was political, not judicial.
“Our prior cases … provide no guidance on how to measure whether tuition at some level above zero is ‘as nearly free as possible,’” the Court’s August 2007 opinion stated. “Nor do our statutes currently provide standards by which a court could measure whether tuition was too high.”Unless the latest budget cuts have caused tuition to rise out of the lowest third, all the state government will need to do if ABOR sues is quote what ABOR said last time.