Fenster v. Schneider
| Decision Date | 26 November 1980 |
| Docket Number | No. 79-1844,79-1844 |
| Parties | Herbert L. FENSTER, Appellant, v. Douglas N. SCHNEIDER, Jr., Director of the District of Columbia Department of Transportation. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 79-0255).
Herbert L. Fenster, Washington, D. C., with whom Lawrence S. Ebner, Washington, D. C., was on the brief, for appellant.
David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel, and John H. Suda, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.
Before WILKEY and WALD, Circuit Judges, and MacMAHON, * Chief Judge, United States District Court for the Southern District of New York.
Opinion for the Court filed by Circuit Judge WALD.
This case raises the issue of whether the District of Columbia School Transit Subsidy Act of 1978, 25 D.C.R. 2534, 2691, D.C.Law 2-152 (hereinafter "the Subsidy Act") which provides for a reduced transportation fare for District resident students on their way to public or private school and educationally related activities in the District, violates Article IV and the fourteenth amendment of the Constitution by discriminating against non-resident students. The district court dismissed the case for failure to state a claim upon which relief could be granted, holding that the residency requirement has a rational basis in that it attempts to allocate the benefits of the school child subsidy among those paying the costs of the subsidy, i. e., District residents, and that the fact that part of the subsidy is funded through federal revenue sharing does not change the validity of this allocation. We affirm the district court, but elaborate somewhat on its rationale.
Appellant brought this action in the United States District Court for the District of Columbia seeking declaratory judgment and injunctive relief. The relief sought was an invalidation of the District of Columbia School Transit Subsidy Act of 1978 insofar as it provides for a reduced fare (i. e., $.10 as opposed to $.50) for resident students using the Metrobus Transit System within the District to go to and from public or private schools and related educational activities. To be eligible for the subsidy the student must be under nineteen, currently enrolled in any elementary or secondary school in the District and residing in the District. Although a similar subsidy has been in operation since 1931, the residency requirement first appeared in the 1978 Act.
Appellant is the parent of a minor child who travels to school every morning by walking a short distance from his home in Maryland to the District and taking a Metrobus to his school located within the District. The only reason appellant's child is not eligible for the subsidy is his nonresidence in the District.
The Subsidy Act is funded partially (16%) by general revenues of the District of Columbia. Of this portion, 40% derives from a direct payment by the Federal Government to the District. The remaining 84% of the Act's budget consists of District Federal Revenue Sharing Funds.
Appellant contends that because only about 10% of the total funding for the program is "paid for" by District residents, there is no rational relationship between the source of money for the program and the limitation of its benefits to residents; hence it violates the equal protection clause and the privileges and immunities clause of the United States Constitution.
An initial question in this case is whether federal jurisdiction exists over appellant's claim. Originally appellant brought suit under 28 U.S.C. § 1331 and alleged that the $10,000 jurisdictional amount was met either because the cost to the appellee of enforcing the right asserted by appellant would exceed $10,000, citing Tatum v. Laird, 444 F.2d 947 (D.C.Cir.1971), rev'd on other grounds, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), and Committee for G. I. Rights v. Callaway, 518 F.2d 466 (D.C.Cir.1975), or because the infringement of appellant's constitutional rights is so serious as to require an evaluation in excess of $10,000, citing Gomez v. Wilson, 477 F.2d 411 (D.C.Cir.1973), and Callaway. 1
The district court did not address this issue directly. We find it unnecessary to do so now. Plaintiff's allegation of a constitutional violation falls under 28 U.S.C. § 1343, which does not require a jurisdictional amount in controversy and which has recently been amended to include the District of Columbia within the meaning of "State" for purposes of the statute. 2 Since plaintiff asked for an injunction against a continuing wrong, rather than for money damages for a past wrong, both parties agreed at oral argument the pleadings could be amended, if the case were remanded, to base the jurisdiction on 28 U.S.C. § 1343. Rather than require such a judicial formality, we proceed to decide the merits of the issue.
Both parties agree that the standard of review for this case is the rational basis test. 3 Appellant makes a two step argument to prove that the Subsidy Act does not survive the scrutiny of even this relatively lower threshold. First, appellant argues that the District does not "pay for" any substantial part of the subsidy. Second, he argues that this lack of substantial relationship between the source of funds and the enjoyment of benefits by District residents renders the subsidy irrational. For the reasons stated below, we reject these contentions.
It is settled that a State may discriminate in favor of its citizens as long as it has a rational purpose for doing so, Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Although durational residency requirements have been held to a stricter standard of review when they penalize interstate migration by denying basic rights for the durational period, see Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (); Dunn v. Blumenstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (); Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974) (), the Supreme Court took care to note in these cases that discrimination based on a residency requirement is different from discrimination based on a durational residency requirement. Shapiro, 394 U.S. at 638 n.21, 89 S.Ct. at 1333 n.21; Dunn, 405 U.S. at 342 n.13, 92 S.Ct. at 1003 n.13; Memorial Hospital, 415 U.S. at 267, 94 S.Ct. at 1086. The note in Shapiro specifically suggests a lower standard of review may be appropriate in non-durational residency requirement cases.
Federal courts, noting this distinction in the Supreme Court opinions, have used a rational basis standard of review in cases, like this one, where higher tuition is charged to non-residents attending local schools. See Arredondo v. Brockette, 482 F.Supp. 212, 218 (S.D.Tex.1979); Spatt v. State of New York, 361 F.Supp. 1048, 1053 (E.D.N.Y.1973), aff'd, 414 U.S. 1058, 94 S.Ct. 563, 38 L.Ed.2d 465 (1973). These cases point out that the right to an education is not a fundamental right which might trigger stricter scrutiny, that no suspect class is peculiarly affected by the discriminatory legislation and that a residency requirement, as opposed to a durational residency requirement, does not effect a penalty on interstate migration. Arredondo, 482 F.Supp. at 217; Spatt, 361 F.Supp. at 1053. 4
The reasoning is applicable here. Appellant's son has not been deprived of any fundamental right by being denied a lower bus fare; the Subsidy Act, in denying its benefits to non-resident children, does not burden a suspect class of citizens.
Our next task is to apply the rational basis standard to this case. On this point the Supreme Court said:
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some "reasonable basis," it does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." "The problems of government are practical ones and may justify, if they do not require, rough accommodations illogical, it may be, and unscientific." "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it."
Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970) (citations omitted).
Several cases have sustained non-resident differential tuition on the ground that a sufficient rational basis may be found in a state's attempt to equalize the costs of local educational programs between residents and non-residents. These courts notably have not demanded any "mathematical nicety" in the application of this doctrine.
In Clarke v. Redeker, 259 F.Supp. 117 (S.D. Iowa 1966), aff'd, 406 F.2d 883 (8th Cir. 1969), cert. den., 396 U.S. 862, 90 S.Ct. 135, 24 L.Ed.2d 115 (1969), the court said:
The defendants justify the discrimination primarily on the basis that resident students or their parents pay taxes to the State of Iowa which, in turn, supports and maintains SUI. The higher tuition charged nonresident students tends to distribute more evenly the cost of operating and supporting SUI between residents and nonresidents attending the University. Although there is no way for this Court to determine the degree to which the higher tuition charge equalizes the educational cost of residents and...
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