Those words — that university instruction should be “as nearly free as possible” — are still sparking confusion, angry debate and now a lawsuit.
Editor’s note: This special report was originally published in April 2009.
It’s just five simple words in the Arizona Constitution, tucked in nearly a century ago with no explanation.
But those words — that university instruction should be “as nearly free as possible” — are still sparking confusion, angry debate and talk of lawsuits.
“As nearly free as possible” has become a rallying cry for students protesting steep tuition hikes at the state universities. The words have led to finger-pointing between legislators and university officials over the amount of state money that flows to higher education.
The phrase creates an expectation for some that college will not put students and parents in deep debt, yet higher-education leaders worry the words will be used to stifle their efforts to build first-rate institutions.
Now, 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.
The move would basically suspend a policy, tied to the Constitution, that tuition and fees be among the lowest third charged by peer universities in other states. The surcharges could put tuition above the national average.
Opponents fear the step will wipe out all checks and balances on tuition hikes.
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: Arizona State, the University of Arizona and Northern Arizona University.
A matter of meaning
“As nearly free as possible” suggests, at first glance, 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,” ASU Professor Tom Rex said of the entire phrase. Rex has researched constitutional mandates and co-wrote a 2006 report on the topic.
To him, the writers of the Arizona Constitution seemed to intend to mandate a very good, publicly funded education system. The “nearly free” part is hard to interpret, he said.
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.
“It’s more like a mission statement or a value statement,” Sen. John Huppenthal, R-Chandler, said of the clause. He heads the state Senate’s Education Committee.
Nobody knows the exact thinking that went into the “as nearly free as possible” provision.
It was added along with another phrase that requires the state Legislature to ensure proper maintenance of all state educational institutions and make special appropriations “for their development and improvement.”
The concept of nearly free higher education is not unique.
At least two other states, Wyoming and North Carolina, have variations on the “nearly free” phrase.
North Carolina’s Constitution requires that higher education “as far as practicable, be extended to the people of the State free of expense.” As in Arizona, critics argue that North Carolina’s recent tuition increases could violate its constitution.
High court weighs in
When Arizona’s Constitution was ratified in 1912, the Legislature set tuition caps of no more than $70 a year, which equals about $1,600 today. Legislators lifted limits in 1925, and since then the regents have set tuition and fees.
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. That means tuition and fees must stay below that of the 33rd state. For years, Arizona’s universities had low tuition and modest increases that kept them at or near the bottom.
Then, in 2003, the regents, influenced by newly hired ASU President Michael Crow, changed their philosophy about ultra-low tuition. They wanted more money to attract top professors, improve quality and increase financial aid for low-income students. So 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. They argued that the Legislature was failing to appropriate enough money for the universities and that the regents were raising tuition to unaffordable levels.
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.
Pushing the limit
That ruling gave the regents more leverage in justifying tuition hikes. Since 2004, they have raised in-state tuition by up to 54 percent. New students at ASU this fall will pay about $6,250 for the year, excluding the proposed surcharges. In 2004, students paid $4,062.
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 UA and 21 percent at NAU.
That’s likely to push the universities above the regents’ self-imposed tuition cap of the “bottom third” of their peers.
The Arizona Students’ Association, which represents 127,500 students at the three state universities, opposes the surcharge and supports the bottom-third cap. The cap gives students some guidance on how much they will pay for school, ASA Chairman Michael Slugocki said.
Removing the cap “kind of opens up the roof to however high tuition has to go now,” he said. “There’s really no limit to what it can be raised to.”
University officials said they need more revenue because of state funding cuts or they will have to make drastic changes that will reduce quality. The universities already have cut back on faculty positions, made employees take furloughs and consolidated departments.
ASU’s 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.”
Crow and other university officials expect their actions will end up being challenged in court.
And, in fact, at least one attorney is watching.
“I think they continue to violate the state Constitution,” said Tucson attorney Paul Gattone, who represented students in the 2003 lawsuit. “I’m hoping to figure out a way to get the litigation back in front of the courts. It seems like now the sky’s the limit in terms of what they are charging.”
Fifty-two men ranging in age from 26 to 76 were elected as delegates to Arizona’s Constitution. They met in Phoenix over a two-month period beginning on Oct. 10, 1910.
The section on education was added near the end on the morning of Dec. 8, and minutes taken of the meeting show no signs of any debate. A roll-call vote taken that day had 44 “ayes” and no “nays.”
Article 11, 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.”
Sources: Arizona Constitution; Arizona Constitutional History ; The Records of the Arizona Constitutional Convention of 1910
Reach the reporter at 602-444-8072 or [email protected]
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