Is Out of State Tuition Unconstitutional Under the Privileges and Immunities Clause?

by

IS OUT OF STATE TUITION UNCONSTITUTIONAL UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE?

Written by Ryan C. Griffith

The Founders of this country envisioned that United States citizens could travel throughout the union without being denied fundamental rights based on their state residency.1 This was specifically outlined in Article IV, Section II of the U.S. Constitution, known as the privileges and immunities clause, which reads: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."2

In The Federalist Papers, both James Madison and Alexander Hamilton discussed the importance of ensuring that states did not discriminate against each other.3 The Federalist Papers were key documents leading to the creation of the U.S. Constitution.4 In Federalist No. 42, James Madison wrote: "Nothing which ends to facilitate the intercourse between the States can be deemed unworthy of the public care."5 Alexander Hamilton was even more adamant that states be in harmony with each other when he wrote in Federalist No. 80: "Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control."6 To achieve harmony between the states, Hamilton further wrote: "It may be esteemed the basis of the Union, that ‘the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.’"7

One of the landmark cases analyzing the privileges and immunities clause is Toomer v. Witsell, 334 U.S. 385 (1948).8 In Toomer, the U.S. Supreme Court acknowledged the primary purpose of the privileges and immunities clause is to ensure that citizens of different states were given equal privileges to citizens of other states.9 The high court, however, acknowledged that the privileges and immunities clause was not absolute.10 A state can discriminate for a substantial reason that is closely tied to achieving a state interest.11 For example, in Toomer South Carolina passed a law that drastically discriminated against out-of-state shrimp fishers by charging a license fee of $2,500 for out-of-state fishers

[Page 12]

and $25 for in-state fishers.12 This was undeniably a discriminatory law against out-of-state fishers, but it did not achieve any substantial purpose or combat any evil.13

South Carolina argued that the purpose of the discriminatory statute was to prevent over fishing and to regulate different fishing tactics from out-of-state fishers.14 However, there was no indication that out-of-state fishers were doing any more or less fishing than in-state fishers, or used any different tactics than in-state fishers.15 Therefore, the law was clearly designed to favor South Carolina fishers at the exclusion of out-of-fishers.16 This caused the Supreme Court to find South Carolina’s statute unconstitutional.17

Toomer merely involved shrimp fishing, which is not a fundamental right.18 So how can public education-which the high court has declared possibly the most important public function of state and local governments (Brown v. Board of Education, 347 U.S. 483, 493 (1954)-be allowed to blatantly discriminate against out-of-state residents?19

For example, in 2022-2023 UCLA charged in-state students 38,517 for undergraduate tuition and expenses.20 For out-of-state students, however, it regular tuition and expenses were $71,091.21 Therefore, an out-of-state UCLA student paid $32,574 more annually than an out-of-state student.22 As a result, an out-of-state student paid nearly double the cost of an in-state student for the same public education.

This is undeniably a discriminatory fee, and college students pursuing an education is certainly not an evil that must be stopped. In fact, many universities actively recruit students from out-of-state, and like most such universities that recruit out-of-state students, UCLA boasts about the locational diversity statistics of its student population on its website.23 What possible evil could the discriminatory practice be combating?

[Page 13]

In 1973, the U.S. Supreme Court partially analyzed the issue presented by this article.24 The case, Vlandis v. Kline, involved a University of Connecticut student that was being charged out-of-state tuition.25 The plaintiff’s case challenged the Connecticut statute and its irrebuttable presumption that any out-of-state resident had no intention of staying in-state after graduation.26 The Court struck down the permanent irrebuttable presumption that no student intended to stay in-state after graduating, and held that such irrebuttable presumptions are highly disfavored.27

The three defenses that the University of Connecticut put forward are worth analyzing because they are still relevant today.28 The first argument asserted by the University was that the state had a valid interest in equalizing the cost of public education between residents and non-residents to ensure that Connecticut residents receive their full subsidy.29 The Court rejected this logic because the University’s policies were over inclusive and did not actually achieve the objective.30

The second argument raised by the University was that it needed to award the residents that had paid taxes for the state university.31 Again, the Court rejected this logic, rightly observing the circumstance where someone could have been a resident of Connecticut for years, then obtained residency in another state temporarily, and then moved back to Connecticut.32 Because in such a situation the tax would not be credited, the statute would be overinclusive.33

The third argument raised by the University was that the irrebuttable presumption provides administrative ease.34 The University went on to say that without the irrebuttable presumption, it would be almost impossible to determine who would stay in Connecticut after graduation.35 The Court was not persuaded by this argument, either, because administrative ease is not a justification for denying due process.36

It is worth noting that the plaintiff in Vlandis v. Kline did not assert an argument based on Privileges and Immunities, which certainly seemed applicable.

However, the Court has been reluctant to expand on the Privileges and Immunities Clause, instead relying on due process to achieve results that analyzing the Privileges and Immunities Clause could equally achieve.37 However, Justice Thomas has repeatedly expressed an interest in expanding the Privileges and Immunities Clause in dissents several times,38 which any litigant on this issue should take notice of. Nevertheless, the plaintiff prevailed on due process grounds.39 The Court, however, provided guidance on how universities should handle out-of-state tuition matters.40 The Court found that reasonable durational residency requirements were acceptable because a state has an interest in maintaining the quality of its universities.41 The student in this case was successful, but it still leaves the question of what constitutes a reasonable durational residency requirement.42 Furthermore, since Privileges and Immunities were not argued, that question was left unanswered.

Schools throughout the United States engage in the discriminatory practice of charging out-of-state tuition, which contributes to the growing student debt crisis this country is facing.43 There appears to be no significant state interest that is achieved other than a state wanting to obtain more money to attract an educated workforce. Moreover, many states do not offer in-state educational opportunities. For example, Alaska does not have a law school.44 Therefore, a resident of Alaska cannot obtain in-state tuition if they want to pursue a legal career. How have public universities been able to discriminate against out-of-state residents without consequence? Perhaps it is time for a change.

——–

Notes:

1. Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an Antebellum Term of Art, 98 GEO. L.J., 329, 1258-1259 (2011), available at https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=2457&context=law-faculty-publications.

2. U.S. CONST., art. IV, § 2.

3. Federalist No. 80 (Alexander Hamilton).

4. Federalist No. 42 (James Madison).

5. Federalist No. 80 (Alexander Hamilton).

6. Id.

7. Id.

8. Toomer v. Witsell, 334 U.S. 385, 389 (1948).

9. Id. at 396.

10. Id.

11. Id. at 393.

12. Id. at 389.

13. Id. at 397-398.

14. Id.

15. Id. at 398-399.

16. Id. at 399.

17. Id.

18. Id.

19. Brown v. Board of Education, 347 U.S. 483, 493 (1954).

20. Undergraduate Admissions, UCLA, https://admission.ucla.edu/tuition-aid/tuition-fees (last visited Apr. 4, 2023).

21. Id.

22. Id.

23. Id.

24. Vlandis v. Kline, 412 U.S. 441 (1973).

25. Id. at 443.

26. Id. at 446.

27. Id.

28. Id. at 448.

29. Id. at 448-449.

30. Id.

31. Id. at 449-450.

32. Id.

33. Id.

34. Id. at 451

35. Id. at 443

36. Id. at 451.

37. Saenz v. Roe, 526 U.S. 489, 503-504.

38. Id. at 512-513

39. Vlandis v. Kline, 412 U.S. at 453-454.

40. Id. 452-453

41. Id.

42. Id.

43. The Absurd Rise in College Costs: Comparing Tuition and Fees from the Last 50 Years, BROKE SCHOLAR, https://brokescholar.com/absurd-rise-in-college-costs-comparing-tuition-and-fees (last visited Apr. 4, 2023).

44. Mary Killorn, "An Alaskan Law School is it Feasible?", available at: ://iseralaska.org/static/legacy_publication_links/lawschool.pdf (last visited Apr. 19, 2023).

[Page 14]