Kromko v. Arizona Board of Regents – 8/9/2007

August 15, 2007

Arizona Supreme Court Holds that Issue of Whether Tuition at State Universities Meets Constitutional Mandate to Be "As Nearly Free as Possible" Constitutes a Political Question Not Subject to Judicial Review.

Four students at the University of Arizona sued on behalf of a putative class of graduate and undergraduate university students, alleging that the state Board of Regents (“the Board”) and the Arizona Legislature violated Article XI, Section 6 of the Arizona Constitution, which requires that instruction at state universities “shall be as nearly free as possible.” The complaint alleged that a tuition and fee increase for the 2003-04 academic year violated the constitutional mandate. The superior court dismissed the claims against the Board and the Legislature, finding that both were absolutely immune from suit under A.R.S. § 12-820.01(A). The Arizona Court of Appeals reversed in part, finding that, although the Legislature is absolutely immune from suit for its appropriations decisions, the Board could be sued for equitable and declaratory relief, and for restitution of tuition collected in violation of the constitutional requirement. The Board petitioned the Arizona Supreme Court for review.

The Supreme Court accepted review and held that whether tuition is excessive under the state constitution is a political question not subject to judicial review. The question is nonjusticiable because it is committed by the state constitution to separate branches of government and lacks standards for judicial determination. Tuition levels are influenced by multiple discretionary policy decisions by the Board and Legislature regarding such matters as class sizes, facilities, faculty salary levels, and allocations from the state general fund. There are no judicially discoverable and manageable standards by which to judge these discretionary policy decisions entrusted to the Legislature and the Board. The superior court therefore properly dismissed the claims against the Board. Because it found the issue presented nonjusticiable, the Supreme Court declined to decide whether the Board was immune from suit under A.R.S. § 12-820.01(A).

Justice Hurwitz wrote the opinion for the unanimous Court. Judge Joseph W. Howard of the Arizona Court of Appeals, Division Two, sat in place of Justice Bales, who recused himself from the case.