Roberts: Brnovich: I do, too, have right to sue Regents over tuition

What is shaping up to be an epic battle between Attorney General Mark Brnovich and the Arizona Board of Regents continues this week.

Brnovich is back in court, defending his right to sue the Regents for illegally subsidizing the tuition of DACA students and for raising in-state tuition by up to 370 percent over the last 15 years.

Regents told Brnovich to butt out

Brnovich filed the lawsuit in September, saying the Regents can’t just ignore a unanimous appellate court ruling that DACA students don’t qualify for in-state tuition. As part of that lawsuit, he also challenged whether the Regents have abided by a constitutional mandate that in-state tuition be “as nearly free as possible.”

The Regents in December asked that the lawsuit be dismissed, saying, essentially, that it’s none of Brnovich’s  business. And besides that, the state Supreme Court has already ruled that judges can’t second-guess tuition. And besides that, the Board of Regents has legislative immunity and so he can’t touch the agency. 

“Arizona courts have made clear for decades that Arizona’s Attorney General does not have a roving mandate to file suits whenever he or she feels it necessary,” the Regents wrote, in the motion to dismiss. “Rather, the AG only has the power to file suit when the Legislature provides a specific grant of authority to do so. Here, no statute authorizes this lawsuit.”

In other words, butt out, Brnovich.

But Brnovich isn't about to back down

Fortunately, the attorney general doesn’t show any inclination to back down, despite what I imagine is tremendous political pressure to get with the program.

Brnovich, in his reply filed Tuesday, says the Supreme Court never gave up judicial authority to consider whether the board is following the constitution when it sets tuition and that he does, too, have the power to take the Regents to court.

BRNOVICH: Why I'm suing Arizona universities over high tuition

“Arizona law broadly authorizes the Attorney General to initiate litigation to represent the State’s interest in many contexts,” he wrote. “Among these grants of power, the Attorney General has discretion to bring actions in the name of the State ‘to enjoin the illegal payment of public monies.’ ”

Brnovich contends that the regents are illegally subsidizing the tuition of undocumented students who are part of the Deferred Action for Childhood Arrivals Program – the one that has been ended by President Trump but is being kept alive, for now, by a federal judge.

Is it OK to ignore rulings they don't like?

The Regents jumped to begin offering DACA students in-state tuition several years ago after a Maricopa County Superior Court judge ruled that they were “lawfully present” and thus eligible for the subsidized resident rate.

But the state Court of Appeals last June reversed that ruling, writing that DACA students don’t have “lawful immigration status” and thus don’t qualify for in-state tuition under a 2006 voter-passed law.

Despite that, the Regents voted in August to continue offering in-state tuition until the state Supreme Court settles the issue.

The question now for the courts is this: does the attorney general of the state have the right to go after the Board of Regents for ignoring court rulings it doesn’t like?

Does he have the right to question whether a 370 percent boost in in-state tuition – one prompted in part by deep state budget cuts – is constitutional?

If only a judge would weigh in on this

I, for one, would love to hear a judge explain how a near quadrupling of tuition over 15 years – outstripping the growth of family income 12 to 13 times over – is proper under the constitution.

Or how a $150 athletic fee – one students must pay regardless of whether they ever go to a game -- meets the constitutional mandate that “instruction furnished shall be as nearly free as possible.” (ABOR says the AG can't challenge its "pedagogical decision that things like athletics, recreation,technology and healthcare are attendant to a fulsome higher education.")

This isn’t part of the lawsuit, but I’d also love to hear a judge's explanation for how Arizona State University can essentially become a property developer, conferring its tax-exempt status on the state’s largest commercial office complex – with plans to continue the practice on hundreds of other acres it owns around the Valley.

I doubt the Legislature will do anything about it.

I know Gov. Doug Ducey won’t do anything about it.

That just leaves Brnovich.

And, according to the Regents, he has no authority to do anything about it.

READ MORE:

Robb: Arizona's tuition lawsuit is a long shot - and it could backfire

Crow: ASU is affordable for all, despite what tuition lawsuit says

Editorial: Brnovich asks the right tuition question - in the wrong way