Sisolak backs six-month residency requirement

Thursday, Jan. 22, 2004 | 9:42 a.m.

Regent Steve Sisolak said a 1990 legal opinion arguing that a Nevada tuition law violates the autonomy of the state's university system does not change his view that the law ought to be upheld.

Sisolak said Wednesday he will urge fellow regents next week to eliminate a policy adopted by the board in 1995 to require college students to be state residents for at least 12 months before qualifying for in-state tuition.

He will ask the board when it meets Jan. 29-30 at the Community College of Southern Nevada's Henderson campus to revert to an older state law that makes students eligible for in-state tuition after only six months of residency.

Sisolak also said he believes students who have been forced to pay the much higher out-of-state tuition rates since fall 1995 because of the regents' policy should be given refunds or tuition credits.

"We're not a fourth branch of government," Sisolak said. "If the state statutes specify something, I don't think we can make policy that overrules that.

"If we took the students' money and weren't supposed to, we need to come up with a way to repay them."

Jane Nichols, chancellor of the University and Community College System of Nevada, said Sisolak is not the only regent who wants the system to follow the state's six-month residency law.

"I would be surprised if the board takes a position that is contrary to the Nevada Revised Statutes," Nichols said. "It is very difficult to predict what the board will do, and it would be presumptive of me to do so, but many regents are concerned that we're in conflict and there's strong interest that we yield to the statute."

The conflict between state law and the regents' policy was brought to light by Community College of Southern Nevada student Sara Renteria. She has argued that based on state law she should not have to pay out-of-state tuition because she has lived in Nevada for more than six months.

The legal conflict has roots in a lengthy 1990 legal opinion written by then-system general counsel Donald Klasic.

The Klasic opinion, obtained last week by Sisolak, cited numerous Nevada and out-of-state court rulings to advance the notion that the regents and the university system have substantial constitutional autonomy when it comes to establishing policies.

"These cases clearly stand for the position that a constitutionally established state university is a unique institution in state government, established in such a manner as to give its officials the tools to protect the state university from partisan politics, special interests and misguided, even if well-intentioned, intermeddling," Klasic wrote.

An essential aspect of the 106-page opinion was Klasic's belief that the regents have what amounts to a free hand when it comes to setting academic and other policies that pertain only to the university system.

Klasic wrote that the Nevada Legislature retains the authority to appropriate money to higher education and can expand the regents' powers, such as when they were granted statutory authority to issue subpoenas and create campus police forces. But he also opined that state lawmakers could not reduce any of those powers.

The regents also aren't beyond the reach of the courts. Klasic cited a board policy that required mandatory retirement for tenured faculty at age 65 but was deemed unconstitutional by the Nevada Supreme Court because it ran counter to a Nevada law prohibiting state boards from engaging in age discrimination.

But Klasic also rattled off numerous state laws that he believed were unconstitutional because they violated the regents' autonomy. One of those laws was the tuition statute that has existed since at least 1959.

Other statutes he deemed unconstitutional included:

Nichols said she read Klasic's arguments but added that it was "not my place" to issue her own opinion on his findings, particularly since she works with both the Legislature and the board.

"We've worked hard to maintain that balance between the Legislature and the board in a positive way," Nichols said. "I don't want to see situations where the Legislature or the board run to the courts to settle each other's power."

Buoyed by Klasic's legal opinion, the regents voted 9-2 on March 30, 1995, to require 12 months of residency to become eligible for in-state tuition. The board majority was swayed by arguments that most other Western states had 12-month residency requirements and that Nevada was getting flooded with out-of-state students.

Among those in the board majority was then-Regent and current Rep. Shelley Berkley, D-Nev., who argued at the time that the more stringent in-state tuition requirement would not deny students access to the university and community college system, according to the minutes of the meeting.

Today the tuition for 15 credits of instruction at the university level is $1,275 per semester for Nevada residents but $4,244 for out-of-state students. Likewise, a Nevada resident pays only $709 per semester for 15 community college credits, versus $2,254 for out-of-state students.

Nichols, who has been chancellor for three years, said she was unaware of the conflict between state law and board policy until Renteria came forward. She said her legal staff is researching the conflict and will report back to the board next week.

But Las Vegas businessman Stephen Cloobeck -- who has a stepson fighting the same tuition argument and is contemplating a class-action lawsuit against the university system -- said Nichols should have been aware of the legal conflict.

"It's her obligation to audit all rules and regulations to make sure that they conform to Nevada law," Cloobeck said.