Hayes v. Board of Regents of Kentucky State University

• Decision Date: 25 April 1974
• Docket Number: No. 73-1976.,73-1976.
• Citation: 495 F.2d 1326
• Parties: Richard HAYES, Plaintiff-Appellant, v. The BOARD OF REGENTS OF KENTUCKY STATE UNIVERSITY, a body corporate, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

495 F.2d 1326 (1974)

Richard HAYES, Plaintiff-Appellant, v. The BOARD OF REGENTS OF KENTUCKY STATE UNIVERSITY, a body corporate, et al., Defendants-Appellees.

No. 73-1976.

United States Court of Appeals, Sixth Circuit.

Argued February 8, 1974.

Decided April 25, 1974.

Robert Allen Sedler, Lexington, Ky., for plaintiff-appellant; Richard N. Rose, Lexington, Ky., on brief.

Bert T. Combs, Louisville, Ky., for defendants-appellees; Ed W. Hancock, Atty. Gen., Carl Miller, Asst. Atty. Gen., Commonwealth of Ky., Frankfort, Ky., Charles R. Simons, Louisville, Ky., on briefs; Tarrant, Combs, Blackwell & Bullitt, Louisville, Ky., on counsel.

Before WEICK and LIVELY, Circuit Judges, and ROSENSTEIN, Customs Judge.^*

LIVELY, Circuit Judge.

The issue in this case is whether a person registered to vote within a given state may be required to pay out-of-state tuition while attending a public institution of the state. The facts are undisputed. Plaintiff first came to Kentucky in August 1968 for the purpose of attending Kentucky State University at Frankfort. At the time of his registration he listed his residence as Gary, Indiana. On May 31, 1972 Hayes registered to vote in Kentucky, giving a Frankfort address as his residence. Thereafter the University continued to charge plaintiff the tuition rates established for non-resident students. In his complaint, plaintiff attacked the rules promulgated in Kentucky for determination of residency status for tuition purposes on the ground that —

They do not provide that a student who is registered to vote in Kentucky is considered to be a Kentucky resident and proceed on the assumption that a person who is registered to vote in Kentucky may still be considered a non-resident and may be compelled to pay the tuition rates established for non-residents.

The district court found no denial of due process or equal protection in the classification of students for tuition purposes or in the guidelines promulgated by the defendants for determining student residency status and providing for administrative review of such determinations. Hayes v. Board of Regents of Kentucky State University, 362 F.Supp. 1172 (E. D.Ky.1973). In oral argument before this court, counsel for plaintiff stated that the only issue is whether voter registration is conclusive of citizenship as defined in the Fourteenth Amendment to the Constitution of the United States.

Section 1 of the Fourteenth Amendment declares in part that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This is the only definition of citizenship contained in the Amendment. The plaintiff argues that when a state permits a person to register as a voter this is a conclusive determination of state citizenship which precludes the state from classifying such person as a non-resident of the state for any other purpose. The Fourteenth Amendment states only that all persons are citizens of the State where they reside. It requires a state to treat its residents as citizens. However, neither the due process clause nor the equal protection clause is for the benefit of citizens only. One applies to "any person" and the other to "any person within its jurisdiction." Thus the plaintiff's argument that voter registration is conclusive of citizenship does not state a case of deprivation of Fourteenth Amendment rights because citizenship is not a requirement for one to claim its benefits. (The privileges and immunities clause is not in issue here.)

Putting aside the citizenship argument, the next question is whether voter registration is conclusive of residence within a state. In the context of this case, the answer depends on the law of Kentucky which states that a person must be a resident of the state and registered in order to be eligible to vote. Kentucky Revised Statutes (KRS) 128.020. Registration alone is not conclusive of the right to vote. This is absolutely clear from KRS 125.137(1) which provides:

The fact that a person is registered constitutes only prima facie evidence of his right to vote and does not prevent the officers of any election from refusing to allow him to vote for cause.

If a person who is registered to vote is challenged or if the election officers disagree as to his qualifications, the person must "sign a written oath as to his qualifications" which is subsequently presented to the grand jury. KRS 125.137(2). If the fact of registration is not conclusive of a person's right to vote, it is obviously not conclusive for any other purpose. That a student has registered to vote within the state is but one of a number of relevant factors which may reasonably be considered in the determination of residency status for tuition purposes. Cf. Vlandis v. Kline, 412 U.S. 441, 454, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973).

In his brief, the plaintiff relies, secondarily, upon the argument that the criteria contained in the rules of the University for determining resident status are constitutionally impermissible, and we will decide this issue as well, although counsel did not stress it in oral argument. Specifically complained of is the provision that residence "shall denote continuous and physical presence within this state with the demonstrated intention of remaining permanently...." It is claimed that the inquiry should be limited to the student's present intention to remain and that a requirement of an intention to remain permanently unconstitutionally penalizes the right to travel, citing Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (197...