Strangers in Their Own Land: Durational Residency Requirements for Tuition Purposes, Though Illegal, Are Here to Stay

• Publication year: 2021

85 Nebraska L. Rev. 1058. Strangers in Their Own Land: Durational Residency Requirements for Tuition Purposes, Though Illegal, Are Here to Stay

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Comment*

Strangers in Their Own Land: Durational Residency Requirements for Tuition Purposes, Though Illegal, Are Here to Stay

TABLE OF CONTENTS

I. Introduction .................................................. 1058 R
II. Background .................................................... 1060 R
A. Nebraska Law and the University of Nebraska
System ..................................................... 1061 R
B. The "Perfect" Plaintiff .................................... 1063 R
C. The Right to Travel ........................................ 1064 R
D. The Tuition Cases .......................................... 1078 R

III. Discussion .................................................... 1082 R
A. Cost Equalization .......................................... 1083 R
B. Fundamental Rights and the Basic Necessities of
Life ....................................................... 1084 R
C. Portability ................................................ 1086 R
D. Gaming the System .......................................... 1087 R
E. The Perfect Plaintiff Versus the University of
Nebraska ................................................... 1088 R
F. Practical and Political Considerations ..................... 1089 R
IV. Conclusion .................................................... 1091 R

I. INTRODUCTION

It is common practice for public universities to impose durational residency requirements on students for tuition purposes. Of course, out-of-state students complain about the practice, which usually involves higher tuition rates for at least their first year of study, but interestingly, very few scholars have directly addressed the constitutional implications of durational residency requirements in the tuition

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context. There is no surprise in that, however. An intellectually honest analysis of the practice reveals some real questions about its constitutionality, but the academic community relies upon the economic benefits of the practice, at least in part, to maintain fiscal integrity. Self-interest is a powerful restraint.

Naturally, a number of law students have challenged the practice by writing notes or articles in other law reviews, but it seems that their conclusions have not been taken seriously, as nothing has changed. Nor is there much case law challenging durational residency requirements for tuition purposes; university students (and their parents) seem to have accepted the practice as the norm, and cases brought by those who have challenged it are often decided based on a very narrow set of facts (and thus are limited to those facts).

Though courts have dealt with durational residency requirements in many contexts, often finding them unconstitutional, they have refused to extend their holdings to the tuition context, and the United States Supreme Court has never directly addressed the issue. However, since the Court's decision in Saenz v. Roe,1 the constitutionality of durational residency requirements in any context, including for tuition purposes, has become even more suspect. If ever there was a time to challenge the practice, it is now.

The most effective strike would be made by a "perfect" plaintiff-- an unquestionably bona fide resident of a state--against a public university of a state that maintains an extremely strict policy of residency classification denying the plaintiff the benefit of in-state tuition because of an irrebuttable presumption of nonresident status. Were such an attack to be decided on purely legal grounds, the perfect plaintiff would almost certainly be victorious. Indeed, there are few, if any, legal doctrines or justifications that allow a state to classify its citizens differently for different purposes. Constitutional law also prohibits a state from creating a barrier to a United States citizen's right to travel or from violating a citizen's due process rights by irrebuttably presuming his nonresident status. Nevertheless, practical and political considerations probably preclude a perfect victory and perhaps any victory at all.

For illustrative purposes, Part II will present background concerning Nebraska law and the University of Nebraska system. Part II will also describe the efforts of one perfect plaintiff--me--to obtain instate tuition not by "gaming the system" as many students do, but instead by unquestionably establishing a bona fide residence in Nebraska. Finally, Part II will discuss the history

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and development of the right to travel and some of the landmark tuition cases that have helped set the stage for the present battle. Understanding the history and development of the law in those areas is vitally important to understanding Part III.

Using Nebraska as a model, Part III will evaluate the strengths and weaknesses of the legal arguments against durational residency requirements for tuition purposes, which, as already mentioned, include violations of the right to travel and due process. Part III will also discuss why those legal arguments, despite their potency, will probably fail due to practical and political considerations. Finally, Part IV will conclude with a few ideas on how to bridge the divide between the law and reality, thereby avoiding the situation where student residents feel that they are strangers in their own land.

II. BACKGROUND

The United States Constitution guarantees its citizens the enjoyment of certain rights, privileges, and immunities,2 and it forbids the abridgment of those rights by the states.3 Nevertheless, states have reserved power to act on their own behalf,4 so long as they do not violate the supreme law of the land5 or the rights of its people.6

Every first-year law student learns that "citizenship" and "domicile" are synonymous.7 Similarly, "[t]he terms `residence' and `domicile' . . . are generally convertible."8 Thus, a state must not violate, by legislation or otherwise, the rights of those United States citizens who reside or are domiciled within its borders. Whether a citizen is a bona

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fide resident of a state has been the subject of much litigation.9 The resulting case law has provided a two-prong test for determining bona fide residency: First, the citizen must be physically present in the state. Second, the citizen must intend to remain in the state.10 Nebraska has adopted a similar definition by statute. In addition to the two-prong test, Nebraska also statutorily imposes durational residency requirements for tuition purposes on students who otherwise meet its bona fide residency test. This raises a number of legal questions.

A. Nebraska Law and the University of Nebraska System

Nebraska defines "residence" as "that place at which a person has established his or her home, where he or she is habitually present, and to which, when he or she departs, he or she intends to return."11 It is defined similarly under Nebraska's Election Act,12 which mandates that a registered voter "declare under penalty of election falsification that . . . I live in the State of Nebraska."13

Nebraska has also established durational residency requirements before a state citizen can obtain certain benefits, including divorce,14 public assistance,15 and tuition.16 The last of these is of particular interest here.

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The Nebraska Constitution gives governmental authority over the University of Nebraska to a board of regents.17 By statute, Nebraska educational institutions are required to charge nonresidents with nonresident fees.18 The governing board of each institution has power to fix and collect those fees and to determine resident status subject to minimum standards.19 Those minimum standards are set forth in section 85-502:

Rules and regulations established by the governing board of each state postsecondary educational institution shall require as a minimum that a person is not deemed to have established a residence in this state, for purposes of sections 85-501 to 85-504, unless:

(1) Such person is of legal age or is an emancipated minor and has estab-lished a home in Nebraska where he or she is habitually present for a minimum period of one hundred eighty days, with the bona fide intention of making this state his or her permanent residence, supported by documentary proof. . . .20

The board of regents has taken its mandate seriously, emphasizing in its policies "that the statutes provide a set of minimum standards which will govern a determination of resident status for tuition purposes only."21 The board further notes that "an individual who moves to Nebraska primarily to enroll in an institution of higher education of the state is presumed to be a non-resident for tuition purposes for the duration of his or her attendance at the University."22 For everyone else, though, a number of factors in addition to physical presence can demonstrate bona fide residency. These include the existence of a current Nebraska driver's license, voter registration, auto registration, a Nebraska bank account, current employment, and Nebraska income

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tax records.23 The difference between resident and nonresident tuition at the University of Nebraska is substantial.24

B. The "Perfect" Plaintiff

My own experience provides as good an example of a "perfect" plaintiff's efforts to obtain in-state tuition as I can imagine, and because a "perfect" plaintiff would make the strongest case against durational residency requirements for tuition purposes, I include it for illustration.

I moved to Nebraska on July 17, 2004, concededly to attend law school at the University of Nebraska. I am not a traditional student, however. I arrived with my wife and three children, then ages four, two, and five months. I also brought with me the...