Defining ‘nearly free’

Students, experts debate meaning of Arizona Constitution’s tuition clause

10-08-09 Cover
Photo illustration by Branden Eastwood.
Published On:
Thursday, October 8, 2009
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Battles over tuition, fees and state funding at Arizona’s universities have brought attention to one key phrase in the state constitution designed to keep higher education affordable for Arizona residents.

Article 11, Section 6 of Arizona’s constitution states, “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.”

That vague phrase has been the focus of debates over tuition and fee hikes at the state universities in recent years.

An economic surcharge was instituted last year in response to state budget cuts, originally billed as a one-time fee of $510 for in-state students and $710 for out-of-state students at the start of the fall 2009 semester.

Student advocates claim that ASU President Michael Crow’s announcement on Sept. 10 that the economic surcharge would “most likely” be reinstated this year is not in line with the “nearly free” clause of the state constitution.

Often used as a rallying cry for both sides of the tuition debate, the phrase has become increasingly difficult to define, as state budget cuts, rising attendance costs and inflation have made “nearly free” a relative term.

Multiple definitions

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.”

Paul Bender, an ASU professor of constitutional law, said he thinks ABOR’s interpretation could be challenged in court.

“The constitution says ‘as nearly free as possible,’ it doesn’t say equivalent to what other state universities do,” Bender said. “What’s possible in Arizona is not equivalent to what the tuition is in California.”

Bender acknowledged such a challenge would be difficult. The Court showed in the Kromko case that it doesn’t generally want to be involved in battles over tuition, he said.

He also said overturning the current formula may actually backfire on students. Although ABOR’s interpretation of the clause could be challenged, he said the Kromko case established a precedent that would keep the Court from challenging the actual amount charged for tuition.

“They could say, ‘OK, we’ll abandon that formula,’ and set the tuition even higher,” Bender said. “So whether or not it would work, whether it’s even a good idea or not is an entirely different question.”

A ‘constitutional duty’

In his Sept. 24 speech to the Board of Regents, Crow cited another constitutional provision, Article 11, Section 10, which requires the state Legislature to “make … appropriations, to be met by taxation, as shall insure (sic) the proper maintenance of all state educational institutions, and shall make such special appropriations as shall provide for their development and improvement.”

In spite of this provision that requires the Legislature to fund higher education, Crow said lawmakers have forced the universities to find other streams of revenue. When presenting his funding requests for the 2010 fiscal year, Crow brought this provision to regents’ attention.

“It’s challenging to plan an investment request to the Legislature when the Legislature has so effectively abdicated its constitutional duty,” he said at the meeting.

Economics professor Dennis Hoffman, who wrote a report on the issue of university funding and revenue in 2006, said the two constitutional provisions are closely linked — universities can’t charge tuition that’s “as nearly free as possible” without adequate state funding.

“If it’s hard to follow one [provision] without the other,” Hoffman said. “The state of Arizona over the past year has made substantial slashes in higher education.”

State Rep. David Schapira, D-Tempe, said most of the responsibility for increased fees and tuition should fall to the state Legislature.

“The Board’s hands are tied,” he said. “The Legislature sets funding for the universities and the Board of Regents has to fill the gap between how much the Legislature gives and how much it costs to run the universities using tuition.”

Sen. John Huppenthal, R-Chandler, who chairs the Senate Education Accountability and Reform Committee, said the Legislature did everything it could this fiscal year to avoid excessive cuts to education, including massive cuts to other departments.

“I think what you saw was a clear objective to [cut] education less than other parts of the budget,” Huppenthal said. “Other parts of the budget were nuclear-bombed in order to keep cuts to education as low as possible.”

The fight for funding

In the Kromko case, plaintiffs blamed the Legislature’s low appropriations for the rise in tuition. The state Supreme Court ruled that it had no right to interfere with the way the Legislature distributes state money.

“The court unanimously agreed that the Legislature is absolutely immune for its appropriations decisions,” according to a statement issued by the state Supreme Court in August 2007.

Without any help from the courts, students interested in keeping tuition low will have to either pressure the state Legislature to increase funding or pressure the universities to decrease spending.

Busse, an NAU student who uses his position as ASA chair to advocate for lower tuition, said the Legislature is to blame for the rising costs of attendance, which are often a response to state funding cuts.

“The state has an obligation to help make tuition as nearly free as possible,” he said. “If you ask any random college student [in Arizona] if they think their tuition is ‘as nearly free as possible,’ they’re going to laugh in your face.”

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