Steven M. v. Gilhool

Decision Date29 November 1988
Docket NumberCiv. A. No. 87-0604.
Citation700 F. Supp. 261
PartiesSTEVEN M., et al. v. Thomas K. GILHOOL, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Theresa Glennon and Janet Stotland, Education Law Center, Philadelphia, Pa., for plaintiffs.

Joanne D. Sommer, Doylestown, Pa., Maria Parisi Vickers, Philadelphia, Pa., William B. Moyer, Doylestown, Pa., Tai Park, New York City, for defendants.

OPINION

JOSEPH S. LORD, III, Senior District Judge.

Introduction

This is a class action in which the parties have filed cross-motions for summary judgment.

The plaintiff class consists of school-age children who live in "children's institutions"1 in Pennsylvania and who may be required to pay tuition to attend the public schools where they live because their parents live out-of-state. At least some members of the plaintiff class live in the institutions for extended periods of time. Pennsylvania's education law deems plaintiffs, among others, to be non-residents and on that basis permits school districts to charge tuition. Pennsylvania also requires that plaintiffs' tuition be paid, or at least guaranteed, before they are enrolled. Plaintiffs' principal argument is that a child whose parents intend for him to live in Pennsylvania indefinitely must be treated for tuition purposes as a resident of the school district where he lives, regardless of where the child's parents reside. Defendants contend that plaintiffs are not bona fide residents of the districts in which they live or of the Commonwealth, so that charging them tuition is permissible. Defendants also argue that this case is moot. I deal first with defendants' latter argument.

Mootness

Named plaintiff Steven M. came from New York to live in Pennsylvania in September 1986. In January 1987, he began attending public school in Central Bucks School District ("CBSD"), with his parents paying tuition for him. The complaint in this action was filed shortly thereafter and the original class was certified on November 6, 1987.2 In June 1988, Steven M. returned to live with his parents in New York. Defendants assert that the case became moot when Steven M. left Pennsylvania.

This argument is not persuasive. While Steven M. and his parents may never again have to pay tuition for him to attend Pennsylvania public schools, their past tuition payments have not been refunded. Therefore, they retain an interest in the case. See Galda v. Bloustein, 686 F.2d 159, 163 (3d Cir.1982). Moreover, the controversy remains alive with respect to the other members of the class whom Steven M. represents. See Sosna v. Iowa, 419 U.S. 393, 401, 95 S.Ct. 553, 558, 42 L.Ed.2d 532, 541 (1975).

Procedural Due Process

The Pennsylvania Public School Code of 1949, 24 P.S. § 1-101 et seq., provides that "every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years may attend public school in his district...." 24 P.S. § 13-1301. There is no requirement that resident children pay tuition. Id. Members of the class, however, may be required to pay tuition before they are allowed to enter the school on the asserted ground that they are not residents of the district.3 The basis for this conclusion is 24 P.S. § 13-1302. That section provides:

A child shall be considered a resident of the school district in which his parents ... reside...."

The Act thus establishes a presumption but fails to provide for a hearing or any other opportunity to rebut the presumption which therefore becomes irrebuttable.

Defendant Central Bucks School District ("CBSD") contends that the statute does provide an opportunity for plaintiffs to establish their Pennsylvania residence. CBSD cites the last sentence of 24 P.S. § 13-1308, which states that an institutionalized child whose "legal residence is in the opinion of the Secretary of Education in Pennsylvania, but cannot be fixed in a particular district ..." may have his tuition paid by the Commonwealth. However, a child can attain this status only if at the time he is admitted to the institution his parents reside in Pennsylvania and his parents later abandon him. 22 Pa.Code § 11.18(c). Plaintiffs have not been abandoned by their parents and in many cases their parents have never lived in Pennsylvania.

CBSD also contends that plaintiffs may establish resident status under 22 Pa.Code § 13.31 and § 13.33. Those regulations permit parents of "exceptional" children to challenge the type of education provided to their children. Those regulations do not purport to allow parents to challenge the complete denial of tuition-free education based upon the presumption of non-residence in 24 P.S. § 13-1302. I hold that this failure to provide any sort of hearing denies plaintiffs procedural due process and is therefore unconstitutional.

Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973) is squarely on point. In that case, two University of Connecticut students sued in the United States District Court for the District of Connecticut, alleging that they were bona fide Connecticut residents and challenging the constitutionality of a Connecticut statute, under which they were permanently and irrebuttably classified as nonresidents for the purpose of determining their tuition and fees. Specifically, the Connecticut statute provided that an unmarried student is a nonresident if his legal address was outside of Connecticut for any part of the 1-year period immediately preceding his application for admission, and that a married student is a nonresident if his legal address was outside of Connecticut at the time of his application for admission. A three-judge court found that both students were bona fide residents of Connecticut, held the Connecticut statutory provisions unconstitutional, enjoined their enforcement, and ordered refunds of tuition and fees paid by the two students in excess of those paid by resident students.

On direct appeal, the United States Supreme Court affirmed. It held that the statute violated the due process clause of the Fourteenth Amendment by creating a permanent and irrebuttable presumption of non-residence when the presumption is not necessarily or universally true in fact and the state has reasonable alternative means for determining residence.

In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees at its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of non-residence, when that presumption is not necessarily or universally true in fact, and when the State has a reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to in-state rates.

412 U.S. at 452, 93 S.Ct. at 2236, 37 L.Ed.2d at 71. It has been argued that Vlandis has been limited or overruled by Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 2470, 45 L.Ed.2d 522, 543 (1975). The Court has rejected this argument when "domicile" or "residence" requirements are in issue. In Elkins v. Moreno, another tuition case, the Court specifically said:

Because petitioner makes domicile the "paramount" policy consideration and because respondents' contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis as limited by Salfi to those situations in which a State "purports to be concerned with domicile, but at the same time denies to one seeking to meet its test of domicile the opportunity to show factors clearly bearing on that issue."

435 U.S. 647, 660, 98 S.Ct. 1338, 1346, 55 L.Ed.2d 614, 625 (1978), paraphrasing, Salfi, supra.

Section 13-1302 of Pennsylvania's education law is indistinguishable from the Connecticut statute struck down in Vlandis. Like the Connecticut statute, Pennsylvania's statute in § 13-1301 purports to be concerned with the residence of the student in deciding whether to admit him to school tuition-free. The term "resident" is well known in the law, if not precisely defined. "Residence" invariably means at least presence for more than a few days and at most domicile. Compare In re Lesker, 377 Pa. 411, 418, 105 A.2d 376, 380 (1954) (residence means a "tarrying place" for more than the moment); Martinez v. Bynum, 461 U.S. 321, 331, 103 S.Ct. 1838, 1844, 75 L.Ed.2d 879, 888 (1982) (residence requires physical presence and intention to remain); Vlandis, 412 U.S. at 448, 93 S.Ct. at 2234, 37 L.Ed.2d at 69 (residence and domicile used interchangeably). Martinez enunciated a constitutional definition of "residence" in the school context: "Although the meaning may vary according to context, residence generally requires both physical presence and an intention to remain." 461 U.S. at 330, 103 S.Ct. at 1843, 75 L.Ed.2d at 888.

Like Connecticut's statute, Pennsylvania's statute, in § 13-1302, disregards factors clearly bearing on the issue of the student's residence no matter how strictly the term is defined: where he lives, why he came to live there, whether he intends to remain there indefinitely and, in the case of a minor, whether his parents intend for him to remain there indefinitely. Instead, Pennsylvania's statute like Connecticut's presumes irrebuttably that the student's former residence, his parents' home, remains his residence.

Contrary to defendants' suggestion, Martinez does not save Pennsylvania's statute. In Martinez, the Court held constitutional a Texas statute which denied tuition-free education to a child who lived apart from his parent or guardian if his presence in the school district was for the primary purpose of attending the public free schools there. 461 U.S. at 323, 103 S.Ct. at 1839, 75 L.Ed. at 883. Texas's local school boards were empowered to ascertain why a child had...

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  • Catlin v. Sobol
    • United States
    • U.S. District Court — Northern District of New York
    • 30 Marzo 1995
    ...were actually residents,17 the Horton court struck the law as creating an impermissible irrebuttable presumption. In Steven M. v. Gilhool, 700 F.Supp. 261, 263 (E.D.Pa.1988), a district court struck a state statute which created an irrebuttable presumption that a child resides with his biol......
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    ...welfare reform. See, Catlin v. Sobol, 881 F.Supp. 789 (1995); Horton v. Marshall Pub. Schools, 769 F.2d 1323 (1985); Steven M. v. Gilhool, 700 F.Supp. 261 (E.D.Pa.1988); In the Matter of Percy Johnson v. Director, Downstate Medical Center, 52 A.D.2d 357, 384 N.Y.S.2d 189 (1976). See also, E......
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    • U.S. District Court — Northern District of Ohio
    • 30 Agosto 1994
    ...(1983). The residency of the plaintiff children must be determined independently of the residency of their parents. Steven M. v. Gilhool, 700 F.Supp. 261 (E.D.Pa.1988). While the residency of the parents may be a factor in determining a child's residency, the ultimate issue is whether the c......

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