Harris v. Hahn, 062316 FED5, 15-20105

Docket Nº:15-20105
Opinion Judge:JENNIFER WALKER ELROD, Circuit Judge:
Party Name:KEITH HARRIS, Plaintiff-Appellee, v. HAROLD HAHN; JARVIS HOLLINGSWORTH; ROBERT JENKINS, JR.; SADA CUMBER; CHRISTOPHER HUCKABEE; JACOB MONTY; JANELLE SHEPARD; JOHN STEEN, JR.; DAVID TEUSCHER; RAYMOND PAREDES; TILMAN FERTITTA; WELCOME WILSON, JR.; BETH MADSON; SPENCER ARMOUR, III; ROGER WELDER; DURGA AGRAWAL; PAULA MENDOZA; PETER TAAFFE, ...
Judge Panel:Before STEWART, Chief Judge and CLEMENT and ELROD, Circuit Judges.
Case Date:June 23, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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KEITH HARRIS, Plaintiff-Appellee,

v.

HAROLD HAHN; JARVIS HOLLINGSWORTH; ROBERT JENKINS, JR.; SADA CUMBER; CHRISTOPHER HUCKABEE; JACOB MONTY; JANELLE SHEPARD; JOHN STEEN, JR.; DAVID TEUSCHER; RAYMOND PAREDES; TILMAN FERTITTA; WELCOME WILSON, JR.; BETH MADSON; SPENCER ARMOUR, III; ROGER WELDER; DURGA AGRAWAL; PAULA MENDOZA; PETER TAAFFE, Defendants-Appellants.

No. 15-20105

United States Court of Appeals, Fifth Circuit

June 23, 2016

Appeal from the United States District Court for the Southern District of Texas

Before STEWART, Chief Judge and CLEMENT and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Keith Harris is a resident of Texas and an honorably discharged veteran of the United States Army. He challenges the constitutionality of the residency requirements in the Hazlewood Act, which provides tuition waivers at public universities for certain Texas veterans who enlisted in Texas or were residents of Texas at the time they enlisted. Because Texas has presented a rational basis for its residency-at-enlistment requirement and because Texas's decision to impose the condition on a portable benefit does not infringe Harris's right to travel, we reverse the district court's judgment.

I.

The Hazlewood Act, first passed in 1923, allows certain classes of veterans to attend public universities in the state of Texas free of charge.[1] Tex. Educ. Code § 54.341. The Act grants qualifying veterans 150 hours of tuition-free credit at Texas's public universities, provided the veterans are not also receiving federal education benefits. Id. § 54.341(a)–(c), (e). In order for a veteran to qualify for benefits, the Act requires that the applicant: entered the service at a location in this state, declared this state as the person's home of record in the manner provided by the applicable military or other service, or would have been determined to be a resident of this state for purposes of [in-state tuition] at the time the person entered the service.

Id. § 54.341(a).2 The Act only applies to veterans honorably discharged from the armed forces who served during any of a number of foreign engagements, including the Persian Gulf War and the conflicts against terrorism following the attacks of September 11, 2001. Id. § 54.341(a)(4)(E), (F).

Harris grew up in Georgia and enlisted in the Army at age eighteen in order to serve his country and support his family. At the time of his enlistment, he was a resident of Georgia. He served in the Army for four years and was honorably discharged in 2000. During his service, Harris served abroad in Korea and received several decorations.

After his discharge he returned to Georgia, married, and started a family. In 2004, Harris moved to Texas. He expended his federal veterans' education benefits completing his undergraduate degree. In the fall of 2012, Harris began law school at the University of Houston Law Center, where he is currently in his third year. The parties agree that Harris meets all of the qualifications for Hazlewood benefits other than the residency-at-enlistment requirement.

Harris applied for Hazlewood Act benefits and was denied on the basis of his enlistment in Georgia. He sued seeking declaratory and injunctive relief requiring the University of Houston to grant him a tuition waiver for his remaining semesters.3 The district court granted summary judgment in Harris's favor. After comparing the Hazlewood Act to the statutes invalidated in Zobel v. Williams, 457 U.S. 55 (1982), Hooper v. Bernalillo County, 472 U.S. 612 (1985), and Attorney General of New York v. Soto-Lopez, 476 U.S. 898 (1986), the district court concluded that Texas lacked a rational basis for its fixed-point residency requirement.4 The district court considered the Act "indistinguishable from the provision in Soto-Lopez, " and therefore concluded that Texas lacked any rational basis for providing benefits only to veterans who were residents at the time of their enlistment. Harris v. Cantu, 81 F.Supp. 3d 566, 574 (S.D. Tex. 2015). The district court dismissed Texas's asserted interest in promoting education by creating an incentive for Texans to graduate from high school and enlist by observing: Promoting education plainly is a legitimate state interest, and by providing financial assistance for postsecondary education, the Act plausibly-albeit tenuously-encourages Texas high school students to graduate, join the military, and return to attend college and graduate school after exhausting their federal benefits. However, Plaintiff does not challenge the Act's provision of financial assistance, but rather its exclusion of Texas resident veterans who enlisted in other states, and Defendants do not explain how not providing benefits to veterans like Plaintiff furthers Texas's interest in its students' education.

Id. at 575 (citing Soto-Lopez, 476 U.S. at 909–10).

Because the district court determined the fixed-point residency requirement violated the Equal Protection Clause, the district court did not address whether it unconstitutionally restricted Harris's right to travel. The district court further determined that, under Texas law, the fixed-point residency requirement was severable from the remainder of the statute regardless of the additional costs because the fixed-point residency requirement could be removed from the statute without undermining what the district court saw as the statute's purpose: "reward[ing] honorably discharged qualified Texas veterans with educational benefits." Id. at 579.

For both its constitutional conclusion and its analysis on the question of severability, the district court relied on two opinions. The first, Del Monte v. Wilson, is a decision of the Supreme Court of California assessing the validity of a California statute conditioning certain veterans' benefits on residence in the California at the time of enlistment. 824 P.2d 632 (Cal. 1992). The second is an opinion of the Attorney General of Texas in response to a question about the Hazlewood Act. Tex. Att'y Gen. Op. No. DM-468 (1998).[5]

Texas appealed.

II.

We review a grant of summary judgment de novo, applying the same legal standards used by the district court. Apache Corp. v. W & T Offshore, Inc., 626 F.3d 789, 793 (5th Cir. 2010). Federal Rule of Civil Procedure 56 provides that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The questions presented here are purely legal as both parties agree on the relevant facts.

Harris argues that the Hazlewood Act infringes two constitutional provisions: (1) it denies him the equal protection of the laws as guaranteed by the Fourteenth Amendment; and (2) it violates his constitutional right to travel from one state to another. We examine each in turn.

A.

We begin with a brief discussion of Supreme Court precedent on state laws that distinguish between residents and non-residents. The Supreme Court has held that the Equal Protection Clause restricts the extent to which a state may discriminate between newly established and incumbent state residents in apportioning benefits. See Saenz v. Roe, 526 U.S. 689 (1999); Supreme Court of Va. v. Friedman, 487 U.S. 59 (1988); Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898 (1986); Hooper v. Bernalillo Cty Assessor, 472 U.S. 612 (1985); Zobel v. Williams, 457 U.S. 55 (1982).

At the same time, the Supreme Court has upheld benefits schemes based on residence when the benefit offered is a portable one that a nonresident could immediately obtain and take out of the state. See, e.g., Martinez v. Bynum, 461 U.S. 321, 332–33 (1983) (upholding requirement that child's parents reside in and intend to remain in school district before allowing child access to tuition-free public schools); Sosna v. Iowa, 419 U.S. 393, 408–09 (1975) (upholding a durational residency requirement before allowing residents to petition for divorce in state courts); Vlandis v. Kline, 412 U.S. 441, 453–54 (1973) (acknowledging that "the state can establish such reasonable criteria for in-state [college tuition] status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates."); Starns v. Malkerson, 401 U.S. 985 (1971) (affirming a judgment upholding Minnesota's residency requirement for tuition benefits); see also Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 499 (10th Cir. 1998) (upholding preferential admissions to medical school for residents of New Mexico based on the duration of their residence in the state).

Even in decisions that ultimately overturned waiting periods or residency requirements, the Court has been careful to observe that states can impose certain residency requirements without constitutional impediment. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 638 n.21 (1969) (invalidating a one-year waiting period for public assistance while acknowledging the permissibility of "residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession").

Unfortunately, it is difficult to draw direct guidance from the decisions overturning state laws as unlawfully discriminatory against out-of-state citizens. These decisions lack a clear statement of rule and have often been fractured, with several justices concluding the programs violated the Equal Protection Clause, several justices concluding the programs violated the right to travel, and several justices concluding the programs violated no constitutionally protected rights.

Early cases assessing fixed-point...

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