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Tuition increases raise constitutional question

PHOENIX — Five simple words concerning college tuition in the Arizona Constitution are sparking confusion, angry debate and talk of lawsuits.

The words — that university instruction should be “as nearly free as possible” — have become a rallying cry for students protesting steep tuition hikes at the state universities.

The Arizona Board of Regents is weighing new tuition charges that it acknowledges would stir up new accusations that it is violating the Constitution. The regents want to impose surcharges on top of tuition hikes approved for this fall.

Regents President Fred Boice said he expects the board will be challenged in court over tuition hikes because filing a lawsuit isn’t costly.

“It’s just a little too simple to do that, and somebody will,” he said.

Boice said the regents are being forced to act because of an unprecedented $190 million cut in state funding to the state’s three universities.

At first glance, “as nearly free as possible” suggests that the cost of education should be a state responsibility with students paying some of the costs. But the words “as possible” muddy the waters on how much students should pay.

“Certainly people do interpret it differently. That’s true with everything. It’s very difficult to write a constitution and get your intent clear,” said Tom Rex, an Arizona State University professor who researches constitutional mandates.

Students often interpret the phrase to mean their tuition bills should be as low as possible or the state Legislature should pick up more of the tab so tuition bills stay low. Some legislators view “as possible” as removing any mandate.

The “as nearly free as possible” provision was added to the Constitution nearly a century ago. In 1935, the Arizona Supreme Court ruled that a state university could impose charges as long as they weren’t “excessive or other than reasonable.”

Eventually, the regents came up with their own policy to define reasonable. Every year, they conduct a survey of tuition and fees at each state’s flagship university and require Arizona universities to stay in the bottom third of the list.

Arizona’s universities had low tuition and modest increases that kept them at or near the bottom for years.

Then in 2003, the regents, influenced by newly hired ASU President Michael Crow, changed their philosophy about ultra-low tuition. They raised tuition by 39 percent in one year, or $1,000 a year, while setting aside more than 14 percent of tuition revenue for financial aid, up from 8 percent.

Four students filed a lawsuit against the board and the Legislature in 2003, arguing they had violated the Constitution.

The lawsuit, Kromko vs. Arizona Board of Regents, reached the Arizona Supreme Court, where a four-judge panel in 2007 said the question was a political one, not a judicial one. Judges declined to address whether the tuition hike violated the state Constitution.

The ruling gave the regents more leverage in justifying tuition hikes. Since 2004, they have raised in-state tuition by up to 54 percent.

With this year’s budget crisis, some students and legal observers again are questioning whether the state’s Constitution is being upheld.

Because of Arizona’s struggling economy and falling tax revenue, the Legislature took back $190 million from the three state universities, or 20 percent of their state funding, this school year.

In response, the three state presidents are pushing for tuition surcharges that, if approved by the regents later this month, would result in 2009-10 tuition increases of up to 33 percent at ASU, 30 percent at the University of Arizona and 21 percent at Northern Arizona University.

That would likely to push the universities above the regents’ self-imposed tuition cap of the “bottom third” of their peers.

Crow said he believes the universities will still meet the “as nearly free as possible” mandate because once need-based scholarships and grants are factored in, the price many students pay is far lower than the published tuition price.

“We’re getting very close to the (constitutional) limit, but we’re still there,” he said. “The way that I judge that is if the institution is still accessible to families with every income level. As long as we can say, ‘Yes,’ I feel comfortable we’re fulfilling our duty.”

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