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Kromko v. Arizona Board of Regents - 11/14/2006

Arizona Court of Appeals Division One Panel Finds that University Students Can State a Claim Under "Nearly Free Education" Constitutional Provision Against Board of Regents for Tuition Increase.


A complaint filed by four University of Arizona students challenging a tuition increase approved by the Board of Regents and the Legislature's failure to increase funding for the university system was dismissed by the trial court. The trial court found that both the Board and the Legislature were absolutely immune from suit. On appeal, the court unanimously affirmed the dismissal of the Legislature. It held that neither Article 11, section 6 of the Arizona Constitution, which provides that university instruction "shall be as nearly free as possible," nor Article 11, section 10, which provides three broad methods to fund the university system, require that the Legislature increase appropriations to the university system. Such funding decisions are quintessentially legislative and subject to absolute immunity from judicial review.

The court was divided, however, on whether dismissing the Board was appropriate. The majority held that the Board should not have been dismissed. According the majority, the Board was not entitled to the immunity under Arizona's absolute immunity statute, A.R.S. 12-820.01, because declaratory or injunctive relief actions against public entities, such as the one filed by the students against the Board, are not protected by the statute. The majority also determined that the students stated a claim against the Board by alleging that the tuition increase approved by the Board was excessive or unreasonable. The dissenter, Judge Irvine, would have upheld the trial court's decision to dismiss the Board because the student's claim mere allegation that the tuition increase was excessive or unreasonable was, even if true, not enough to establish that the Board had plainly abused its "enormous discretion in setting tuition."

Presiding Judge Portley authored the majority opinion in which Judge Snow concurred. Judge Portley authored a separate decision, in which he concurred in part and dissented in part from the majority opinion.

Posted On: 11/22/2006