Students at the state’s three universities are entitled to sue over tuition hikes, the Arizona Court of Appeals ruled Tuesday.
In a 2-1 decision, the court pointed out that under the Arizona Constitution, the state universities must be “as nearly free as possible.” The judges concluded that the courts can determine whether the Arizona Board of Regents, which sets tuition, is complying with that requirement.
Regents spokeswoman Anne Barton said an appeal to the state Supreme Court is possible. But if Tuesday’s decision stands, it does more than pave the way for four students who sued in 2003 to seek a refund after a 39 percent increase. The decision could open the door to a series of similar claims by current and former students — which could ultimately cost millions of dollars.
In fact, attorney Paul Gattone, who represents the four original plaintiffs, said he plans to seek formal certification of the lawsuit as a class action on behalf of anyone who has paid the higher fees.
Gattone said this includes not only that 39.1 percent hike — which translated to about $1,000 for Arizona residents — but three subsequent, albeit smaller, tuition increases approved since then, as they were built on top of that large hike.
And the case could be expanded further: The regents are meeting later this month to consider proposals that could raise resident tuition and fees another 7.7 percent.
But Gattone, who never has said what would be a reasonable or legal limit, still has a major legal hurdle ahead of him: He first has to prove the tuition being charged is, in fact, unconstitutional.
Tuesday’s court ruling did not address that issue but simply said the students are entitled to make that claim — and the regents are not immune from being sued over how they set tuition. Tuesday’s ruling is only a partial victory for the students.
The appellate court also concluded that the students cannot force state lawmakers to appropriate more money to run the university system.
That could prove problematic when the case finally goes to trial.
It was the failure of the Legislature to increase university funding for the 2003-04 school year that resulted in the regents deciding they needed to hike tuition by 39.1 percent. And if lawmakers can’t be forced to put more cash into the system, that leaves the students in the position of having to prove to a judge that the regents and the universities could — and should — have done other things to prevent such a large tuition increase.
“The board may be able to factually demonstrate that the tuition increase was reasonable given the factors that it uses to determine tuition,” wrote Judge Maurice Portley in the majority decision.
But the court rejected what has been the regents’ main contention: That as long as tuition charged here is in the lower third of all public universities, it is complying with the constitution and cannot be sued.
Portley said such lawsuits are appropriate when students allege that tuition and fees are “excessive or other than reasonable.”
What is reasonable, however, remains to be seen.
Judge Patrick Irvine, in his dissent, said the students “never articulate how high tuition should be, what would be an appropriate use of tuition revenues, or how a court is to go about determining the appropriate level of tuition.”
And he pointed out that the constitution, while using terms like “nearly free” and “as possible,” does not establish any specific limits on how high tuition can go.
“The language implicitly recognizes that setting tuition involves balancing considerations beyond the financial impact on students, such as the revenues, expenses and goals of the universities,” Irvine wrote.
He said it is “inevitable” that there will be disagreements.