Florida Supreme Court hears tuition dispute

TALLAHASSEE, Fla. -- Florida Supreme Court justices had some sharp questions Thursday for both sides on whether the Legislature has the power to set state university tuition and fees rather than a board created to oversee the schools.

Two lower courts have ruled that power lies with the Legislature. However, former Gov. Bob Graham _ who was watching from the second row _ and other plaintiffs contend a 2002 state constitutional amendment establishing the Board of Governors transferred tuition-setting power to the new panel.

The governor appoints 14 of the board's 17 members. The state education commissioner and leaders of faculty and student associations automatically fill the remaining three seats.

Graham, a Democrat and former U.S. senator, led a petition campaign that put the amendment on the ballot with the aim of taking politics out of the State University System. That was after the Republican-led Legislature abolished an earlier board that opposed lawmakers' pet projects such as new law and medical schools. The amendment won approval from nearly 62 percent of voters.

Justice Barbara Pariente persistently asked why the amendment failed to specifically say it was moving tuition and fee authority from the Legislature to the Board of Governors, but Graham said he remained optimistic.

"Judges typically act as devil's advocate," Graham said. "They're asking the tough questions from the other point of view."

The Graham group's lawyer, Robin Gibson, responded to Pariente by saying it wasn't necessary to include such detail because the amendment gave the board full responsibility to manage the entire State University System.

Pariente, though, again raised the issue. She agreed every small element of the board's authority didn't need to be in the amendment but said tuition-setting "seems like not a small detail."

The court did not indicate when it would rule.

Graham later said he had no regrets about not mentioning tuition in the amendment because doing so could have been interpreted as leaving out other matters also not specified such as setting faculty salaries or approving new programs. The amendment was patterned after similar constitutional provisions in other states with university boards that have tuition-setting authority.

"Using the language that has stood the test of time, in the case of Michigan for over 100 years, is the appropriate, preferred way to deal with a constitutional amendment," Graham said.

The crux of the argument was whether setting tuition and fees cannot be separated from the Legislature's constitutional appropriation authority as legislative attorney Daniel Brown argued. Gibson contended they are two distinct functions and that the amendment transferred all aspects of the Legislature's authority over the universities except for appropriations.

The Legislature appropriates general revenue raised mainly from taxes to the 12 universities as part of the annual state budget.

Tuition and fees, however, go into trust funds at each of the universities to spend as they and the Board of Governors see fit under a continuing appropriation law.

Brown said lawmakers could repeal that law if they don't like the way the universities are spending those dollars, but that drew a question from Justice R. Fred Lewis.

"If you're saying that the power of appropriation is so broad that it can sweep away everything that's in the other constitutional amendments with regard to control of day-to-day operations, then I wonder if you're not interpreting the appropriation power far too broadly?" Lewis said.

Brown replied that this case wasn't about that kind of meddling but if that happened it could be challenged in a different case.

Others participating in the 2007 lawsuit include Republican former U.S. Rep. Lou Frey and former Florida State University President Talbot "Sandy" D'Alemberte, also once a Democratic lawmaker.

The board at one point joined the plaintiffs, but it withdrew after reaching a compromise with lawmakers.

They agreed the Legislature could raise tuition across-the-board while the board could approve additional increases for individual universities. The combined increases, though, cannot exceed 15 percent in a given year.

The case is Bob Graham et al. v. Mike Haridopolos, etc., et al., SC11-2453.