ABOR should implead the Arizona legislature as an indispensable party in tuition suit

I posted about this lawsuit over the weekend, AG Mark Brnovich creates a ‘straw man’ for our lawless Tea-Publican legislature on higher ed funding.

The head of the state Board of Regents, Bill Ridenour, blasted Attorney General Mark Brnovich for what he said is a publicity stunt Friday — he called it “political pandering” — in suing the board and blaming its members for the steep hike in tuition in the last 15 years. ABOR chairman calls tuition lawsuit a publicity stunt:

“The AG’s lawsuit, while it makes for good headlines, does nothing to change the burden for students and their families,” he said in a prepared statement. “The suit is full of attacks, but offers no constructive remedies.”

Ridenour said Brnovich is right on at least one issue: The “seismic” shift in cost from the state to students to attend one of the state’s three universities.

What’s wrong with the litigation, he said, is that it seeks a solution from just the regents, ignoring the role he said lawmakers have played in the 300-plus percent increase in tuition since 2003. And Ridenour said if the issue is going to be hashed out in court, then the lawsuit needs to involve more than the regents.

“If it goes to that extent, the Legislature is an indispensable party,” he told Capitol Media Services.

Ridenour is absolutely correct. ABOR should move the court for impleader of the Arizona legislature, because the constitutional provisions for which Brnovich is suing ABOR are actually express directives to the Arizona legislature:

Article XI, Section 6: 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. The legislature shall provide for a system of common schools by which a free school shall be established and maintained in every school district for at least six months in each year, which school shall be open to all pupils between the ages of six and twenty-one years.

Article XI, Section 10.  The revenue for the maintenance of the respective state educational institutions shall be derived from the investment of the proceeds of the sale, and from the rental of such lands as have been set aside by the enabling act approved June 20, 1910, or other legislative enactment of the United States, for the use and benefit of the respective state educational institutions. In addition to such income the legislature shall make such appropriations, to be met by taxation, as shall insure the proper maintenance of all state educational institutions, and shall make such special appropriations as shall provide for their development and improvement.

I cannot imagine that the court would not grant ABOR’s motion to implead the Arizona legislature as an indispensable party.

[W]ith Brnovich having filed suit which essentially says the regents — and the regents alone — are violating the Arizona Constitution, Ridenour sees an opportunity to finally get a definitive legal ruling on who really is responsible.

“This suit will allow us to present the facts to a court of law and seek clarification of our constitutionally mandated obligation to provide ‘instruction as nearly free as possible,’ ” he said. “We can now address who will pay for that mandate.”

Brnovich spokeswoman Mia Garcia defended the decision to sue only the regents and not the lawmakers.

“We do not believe the court can order the Legislature to appropriate more funding for higher education,” she said. But Garcia said a judge can order the regents to calculate tuition “based on actual costs” and determine if that meets the constitutional requirement.

It is true that the court cannot order the legislature to appropriate more funding for higher education (“political question” doctrine). But it is in the court’s jurisdiction to declare the meaning of state constitutional provisions and to determine the rights and obligations of the parties to the lawsuit under the constitution. This is why the Arizona legislature needs to be impleaded.

The argument that the court can order the regents to calculate tuition “based on actual costs” is really misdirected. The Arizona legislature is supposed to fund higher education “based on actual cost,” and any tuition (and/or fees) should be de minimus so that “the instruction furnished shall be as nearly free as possible.” This is not happening. Arizona cuts to college student support still among steepest in nation: State support for students at Arizona’s three public universities has fallen by 53.8 percent since 2008, more than three times the national decline over the same period, according to a new report from the Center on Budget and Policy Priorities.

Politics aside, some research by Capitol Media Services also could undermine Brnovich’s contention that the hike in tuition has far outstripped the loss of state dollars.

Figures prepared by legislative budget staffers show that in 2008 there were 111,368 full-time equivalent students in the university system. That FTE measurement is designed to deal with the fact that some students are enrolled only on a part-time basis.

Total funding from both state aid and tuition totaled nearly $1.9 billion, or $16,986 per student.

By the just-ended school year, total funding exceeded $3 billion. But with 166,296 FTE students in the system, that worked out to $18,217 per student, a 7.25 percent increase over 2008.

And legislative budget staffers said if inflation is taken into account, the total amount being collected in both state aid and tuition on a per-student basis is actually 7.4 percent less than in 2008.

That means the tuition increases that Brnovich cites in his lawsuit did not keep pace with both the reduction in state funding and inflation (i.e., his claim is without merit).

* * *

Ridenour said any look at tuition cannot ignore the declining role of the state.

A decade ago, he said the Legislature funded about 75 percent of the cost for an in-state student, not counting expenses for the University of Arizona Colleges of Medicine. This year, he said, that state-aid figure is just 34 percent.

Ridenour acknowledged the question of state funding of higher education is not an Arizona-only issue.

“What is unique is that in FY 2012, Arizona ranks 48th in per capita support for higher education,” he said.

The idea of legal action against the Legislature is not new. It was first raised two years ago by Mark Killian when he was chairman of the board who told Capitol Media Services that his colleagues should sue lawmakers if they do not come forward with more funds for the university system. That never happened, with Ridenour saying Monday that board members opted instead to work with Gov. Doug Ducey and lawmakers in hopes of reversing the trend, including a $99 million cut the governor signed into law. The results since then have been mixed.

The new budget approved in May provides an additional $15 million in one-time funding to universities.

But lawmakers also removed a one-time $19 million infusion they got last year.

And even that $15 million has strings attacked, with the University of Arizona having to use $1 million of its $4.2 million allocation to fund a so-called “economic freedom school” which was started with seed money from the Koch brothers, whose financial interests range from Georgia-Pacific paper products and Stainmaster carpets to jet fuel and cattle. And there’s an identical $1 million earmark out of the $7.6 million for Arizona State University.

Lawmakers also agreed to let the universities borrow close to $1 billion for capital needs, with the promise there will be funds in future years to pay that back.

That promise was met with this politically motivated publicity stunt of a lawsuit. Our lawless Tea-Publican legislature cannot be trusted. Sue the evil GOP bastards and get a declaratory judgment on the constitutional obligation of the Arizona legislature to fund higher education. AG Brnovich just gave ABOR the grounds for the lawsuit that it previously passed up.

10 Responses to ABOR should implead the Arizona legislature as an indispensable party in tuition suit

  1. John Huppenthal

    Steve,

    I think this is the only time I have taken issue with you. Your quote “making the cost of a university education more expensive than it should be..”

    Relative to inflation, our Arizona universities are one of the few places where the cost of a university education has gone down.

    Graduation rates are up, not hugely, but when graduation rates increase the cost of education automatically goes down – it’s a numerator thing.

    The cost shift is healthy, not unhealthy. This shift lead to a whole different culture at our universities – not treating students quite so much like trash. You can see it in the data. University graduates rating the quality of education excellent have risen from the 20% range to the mid 30’s%.

    Not nearly as fast as it could be and not nearly as high as it could be but in the right direction.

    This is undoubtedly why they have found a positive correlation between tuition and lifetime earnings. Quality goes up when students have more skin in the game. The culture of the institution changes when students become profitable.

    That positive correlation has enormous significance. Quite simply it means that there is no justification at all for subsidizing tuition. Every entity is better off when subsidies are eliminated.

    This is particularly true when we observe that private institutions such as Grand Canyon are now competitive with public institutions even with the subsidy.

    The number of students graduating from Arizona universities has exploded since the legislature began phasing down the subsidy. We have university extensions popping up in every town with three gas stations.

    They should continue that process – even accelerate it.

    • “I think this is the only time I have taken issue with you.”

      That’s no problem, John, it happens all the time. It just goes to show that conservatives are independent thinkers capable of holding divergent opinions. :o)

      Frankly, your message is good one but it leaves me a little confused. On the one hand you make many good points that are quite reasonable and make perfect sense. I am hard pressed to think of any rebuttals at all to what you wrote. But that is in conflict with instinct that tells me lower tuition is a good thing.

      I rarely say this, but I am now uncertain what is best. I am going to have to retreat to the Bat Cave and give it more thought. Thanks for the additional pespective!

    • The Chair of the Regents did NOT blast anyone. He is a failure in his own law firm that tanked. Appointed to task force on sex trafficing to “curb ” the problem which only got worse. (along with CINDY McCain, and Doug Ducey ) then he hired Brewers son in his law office . Wms wife is the one running the politcal corrupt board of nursing nazis . A Sham , protecting some dangerous nurses while taking down ones who were framed. While Billy is on the bd of directors of the AZ NURSES FOUNDATION. so whos really behind all this, AZSTATEBOARDOFNURSINGCORRUPTIONWATCHDOGS. OH yes, and MRS billy , took down the facebook page exposing all the wrong doings . Brnovich needs to take her down. also notice the member of the Bd of Regents Krishna, whos daughter prosecutes nurses, one big gang !

  2. This is one those times, AzBM, when I have to agree with you. It does seem that the Legislature is as guilty as the ABOR in making the cost of a University education more expensive than it should be. But I think it is a moot point since, in the end, I don’t either party is going to be held accountable. That just seems to be the sad way things are here in Arizona.

  3. Frances Perkins

    Maybe you could question the university presidents concerning all the “deans of this and that” you claim but offer no specifics, but plenty of bromides. You certainly would be within your rights to ask as appropriation chairman. And I don’t believe the “as near as free as possible”, applies to out of state students. One thing I probably do agree with you on is our priority should be in-state students, including for medical school, and not packing the Arizona universities with California, or New York or New Jersey carpetbaggers, paying out of state tuition. There were more California kids on my student’s dorm hall at Arizona than Arizona students. I don’t necessarily believe the University presidents speeches about world class, diverse student bodies, if that means fewer Arizona students. We have plenty of diversity here if your student body reflects the State’s demographics. And sorry, yes I believe, dreamers brought here as little kids, who graduated from Arizona high schools, should get in state tuition. Their parents pay plenty of taxes, whether you believe it or not. And it’s funny you mention community college and even JTED articulation, since you have stiffed Maricopa and Pima CCs with no money, and won’t fund 9th graders in JTEDs. Those WOULD save money if those kids do go to universities.

    • Sen. John Kavanagh

      To your comments:

      1. I have criticized the proliferation of deans many time in meetings with President Crow. I will concede that the growth of administrators has been less severe at ASU and we even culled a few during the recession. But surely you do not doubt the Huffington Post article on the growth of deans nationwide that I cited. In yesterday’s N.Y.Times columnist Ross Douthat noted that Harvard has 55 Title IX administrators!

      2. Don’t be too critical of out-of-state students. I do not believe in-state students are being shut out but the extra tuition outsiders pay subsidizes the big breaks that in-state students get in tuition. At the undergrad level, about half the instate students get free tuition and on average in-state students only pay just under $4,000 in tuition. There is no affordability crisis in our universities for in-state undergrads.

      3. I have always supported legalizing DACA kids but the constitutional way, via congress. See my TV debate at https://azpbs.org/horizon/2017/09/state-lawmakers-debate-legality-daca/

      4. I did not fund 9th grade JTED but that did not deprive any student of the opportunity to attend. JTED programs are only for two years and have always been in the junior and senior years of high school. EVIT wanted to recruit 9th graders to get a quick enrollment boost to help with a financial crisis caused by the expensive campus they built. I opposed it because I do not believe 9th graders can make a decision to go vocational versus academic and if vocational, what to take. Keeping it for 10th graders just gives them another year to decide but they still take the full two years.

      • Frances Perkins

        I have to ask you to research The JTED issue more completely. 1. EVIT has always been the outlier in the Statewide JTEDs. Yet every time EVIT cooks something up all the others pay the price, as legislators focus on them and their former House speaker lobbyist. No one else was allegedly using 9th grade as a cash cow. Certainly the seven or eight rural JTEDs were not. 2. With new “accountability” standards for JTED programs, they need the 9th grade as a career exploration year, for the kids to discover what they like and what they could be good at. Most of the programs that are accountable need three year programs, as electives remember, to complete or to get a certificate in an industry specialty. Many programs are not terminal either, the kids go into further training, go to community colleges, or universities. 3. Then somehow the JTED programs still have to try and measure what the kids do when they leave or get jobs, go out of state and are beyond the control or accountability of schools, but JTED programs have to try and track them anyway. It certainly cheaper to have 9th graders funded than not, and waste time and money in 10th grade when the kid decides, no I don’t like it. Actually most JTEDs are marketing in Middle schools to see what the kids and their parents might like, and to show them what is available, but JTEDs get nothing for those efforts. Many times you guys on West Washington are penny wise and pound foolish.

        • Sen. John Kavanagh

          I just think that making a high school freshman make such a decision at the end of the school year is a bad idea because they are too young to commit. That’s all.

  4. Sen. John Kavanagh

    That recent FTSE count is for all students, in-state, out-of-state, undergraduate and graduate. I do not believe that the founders gave us a mandate to provide as near free as possible tuition to out-of-state and foreign students. I know that at ASU, about half the undergrads are from out of state.

    I suspect that when you allocate state aid by Arizona students only and take into account the extra tuition money that out-of-state and foreign students pay, which subsidizes in-state student tuition, the picture is not as dire as you portray it.

    In fact and as I posted before,

    You cannot discuss tuition and tuition increases without discussing how much in-state students actually pay. The last time I saw the data from the Regents, about two years ago, about half the in-state undergrad students paid no tuition at all. Another third paid greatly reduced tuition and the rest paid full tuition.

    These amounts do not include fees (but they are not monumental) and take into account all types of financial aid, including a sizable shift of tuition revenue (much of it from large out-of-state tuition costs) to poorer students. So when the dust settles, ASU and the other state universities have very affordable tuition or no tuition for probably three-quarters of their students. The rest of the undergrads come from well-off households, who you libs think don’t pay enough money to government anyway.

    I might also add that some of the increased costs today result from a massive growth of administrative personnel since the 1970s, Deans of Anything and Everything, along with mandatory fitness center fees that all students must pay and that I voted against authorizing.

    Finally, doing a two-year community college and two-year university articulation package, the cost of a four-year state university degree is probably among the lowest in the nation.

    Amazing how these facts get lost in the smoke and mirrors of politics.