The toll for traveling students: durational-residence requirements for in-state tuition after Saenz V. Roe.

Author:Chartier, Douglas R.

TABLE OF CONTENTS INTRODUCTION I. THE ILLUSION OF SAENZ'S PORTABILITY DISTINCTION A. The Purpose of Portability B. Portability as an Unprincipled Distinction 1. Welfare Benefits: Portable or Nonportable? 2. Portability's Irrelevance to the Evil Saenz Sought to Prevent II. SAENZ'S IMPLICATIONS FOR DURATIONAL-RESIDENCE REQUIREMENTS FOR IN-STATE TUITION A. Blindness to Effects on Interstate Travel B. From Penalties to Discrimination C. Applying Saenz Beyond the Basic Necessities of Life 1. How Far Does Saenz Go? 2. Denial of Tuition Subsidies as Worthy of Strict Scrutiny D. Consequences for Sturgis and Starns III. DURATIONAL-RESIDENCE REQUIREMENTS FOR IN-STATE TUITION UNDER STRICT SCRUTINY CONCLUSION INTRODUCTION

After the excitement of getting into the college of her choice wears off, a student may soon wonder how she will pay for her newfound prize. Though higher education is almost always a sound investment given its potentially tremendous return and importance in getting a good job, the cost is daunting--sometimes even prohibitive--for many students. Public undergraduate and graduate schools are an attractive option for many students because of lower tuitions. Yet state universities deny many students the full measure of this benefit.

Public universities usually charge significantly higher tuition rates to out-of-state students than in-state students. A nonresident student may find herself paying as much as three times what her resident counterparts pay. (1) Consequently, a student's classification as a resident or nonresident may determine whether she can afford higher education. State statutes and school regulations often require that students have resided in the state for at least a year before they can be classified as residents for tuition purposes. (2) As a result, state colleges frequently deny many students the benefit of lower tuition for at least a year, regardless of their intentions to make the state their permanent home.

These sorts of waiting periods, which require that a person have resided in a state for a particular period of time before she is entitled to a benefit, are called durational-residence requirements. (3) Durational-residence requirements raise a red flag for many constitutional law scholars because the Supreme Court has struck down many--though not all--of them. It is therefore unsurprising that many lawyers and scholars have argued that durational-residence requirements for in-state tuition are unconstitutional. Nevertheless, no court has found these requirements unconstitutional.

The Supreme Court has repeatedly recognized that durational-residence requirements implicate the fundamental right to travel. (4) In Shapiro v. Thompson, the Court struck down one-year durational-residence requirements for welfare benefits in Connecticut, Pennsylvania, and Washington, D.C. (5) The Court established a framework with which to evaluate durational residence requirements. First, after noting that there was weighty evidence that the statutes' purposes were to exclude the poor from the states, (6) the Court held that the purpose of deterring the migration of the indigent into the state was constitutionality impermissible because it served to penalize those who exercised their fundamental right to travel. (7) Then, with respect to other justifications that the states advanced for the requirements, the Court held that under the Equal Protection Clause of the Fourteenth Amendment, classifications serving to penalize the exercise of the right to travel must survive strict scrutiny. (8) The Court concluded that the laws failed to meet that standard. (9)

In focusing on penalties upon the right to travel, Shapiro established a "severe-penalties" rule in analyzing durational-residence requirements. (10) Under this rule, state laws imposing severe burdens on interstate travel must survive strict scrutiny. (11) Unfortunately, the Court did not elaborate on what constitutes a "penalty." In what would be important for later cases, however, the Court did observe that the law created a classification denying a group the "ability to obtain the very means to subsist--food, shelter, and other necessities of life." (12)

Perhaps recognizing the myriad durational-residence requirements in existence, the Court carefully qualified its holding. In what would haunt future judicial review of durational-residence requirements for in-state tuition, the Court stated in an infamous footnote that its holding implied "no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth." (13)

Later cases elaborated upon what constituted a penalty upon the exercise of the right to travel. In Memorial Hospital v. Maricopa County, (14) the Court held as unconstitutional the denial of nonemergency medical care to indigent people who had resided in the county for less than one year. (15) Consistent with Shapiro, Maricopa County concluded that nonemergency medical care was at least as much of a basic necessity of life to an indigent person as welfare benefits. (16) The Supreme Court also used the Shapiro analysis to strike down a one-year durational-residence requirement for voting in Dunn v. Blumstein. (17) The Court applied strict scrutiny under the Equal Protection Clause because the law penalized people who recently exercised their right to travel. (18) As a result, the Court revealed that "penalties" upon the right to travel include more than just denials of basic necessities of life; they also include denials of the "basic right to vote." (19) In addition, Blumstein made clear that a durational-residence requirement can be unconstitutional even when it neither seeks to deter nor actually deters travel. (20) The Court has, however, upheld durational-residence requirements for divorce petitions, although the Court's reasoning was highly dubious. (21)

In its most recent review of a durational-residence requirement in Saenz v. Roe, (22) the Supreme Court threw many new surprises into the constitutional analysis of these laws. At issue was a California law that limited new residents, for the first year of their residence in the state, to the welfare benefits they would have received in their prior states of residence. (23) Unlike Shapiro, the law did not completely deny a benefit; rather, it potentially reduced the benefits for one year. In its defense, California claimed that the law would save the state $10.9 million per year in welfare costs. (24) California also argued that the law had no punitive effect because newly arrived welfare recipients received the same welfare benefits they would have in their previous states of residence; the law thus made them no worse off. (25) The state was likely trying to avoid Shapiro's call for strict scrutiny when a law "penalizes" the exercise of the right to travel.

An unconvinced Court struck down the law. The Court stated that the right to travel includes three components: (1) the right of a citizen of one state to enter and leave another state; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when one is temporarily in another state; and (3) the right for travelers who elect to become permanent residents of a state to be treated like other citizens of the state. (26) The Court concluded that this case involved the third component, which it found rooted in the Privileges or Immunities Clause of the Fourteenth Amendment. (27) As with Shapiro and its progeny, the Court applied strict scrutiny in striking down the California law. (28) The Court held that the law failed strict scrutiny because the state's justification of saving money had no relevance to the duration of the recipients' residence in California or their prior states of residence. (29)

Saenz's critical innovation was to broaden the analysis from Shapiro's severe-penalties rule. Similar to its position in Blumstein concerning a durational-residence requirement's actual deterrence to travel, the Court rejected California's justification that the requirement only "incidentally" affected the right to travel. (30) The Court then concluded that because a newly arrived citizen has a right to be treated equally in her state, a discriminatory classification itself serves as a penalty. (31) Thus, the Court shifted the focus from severe penalties upon the exercise of the right to travel to discrimination against those who have exercised that right.

Like the footnote in Shapiro, Saenz included language that would persuade other courts to limit its future applicability. The Court asserted that the welfare benefits in question could only be consumed while the recipient remained in California. (32) The Court then established a "portability distinction" between welfare benefits and "readily portable benefit[s], such as divorce or a college education, that will be enjoyed after [citizens of other states] return to their original domicile. (33) This language would later serve to thwart efforts in lower courts to strike down durational-residence requirements for in-state tuition.

Both before and after the Saenz decision, challenges to durational-residence requirements for in-state tuition at public colleges and universities were invariably unsuccessful. The Supreme Court has never conducted a significant analysis of this issue. The Court has held that states may restrict tuition-free education to bona fide residents. (34) Therefore, a fortiori, the Constitution allows states to charge nonresidents higher tuition than bona fide residents. Furthermore, in dicta, the Court suggested in Vlandis v. Kline (35) that as an element in determining bona fide residence for tuition purposes, states may impose a reasonable waiting period that can be met while the student is a student. (36)

Despite this suggestion, the Supreme Court has never written an opinion on...

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