Hooban v. Boling, 74-1159

• Citation: 503 F.2d 648
• Decision Date: 02 October 1974
• Docket Number: No. 74-1159,74-1159
• Parties: Roger Owen HOOBAN, Plaintiff-Appellant, v. Edward J. BOLING et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 648

503 F.2d 648

Roger Owen HOOBAN, Plaintiff-Appellant, v. Edward J. BOLING et al., Defendants-Appellees.

No. 74-1159.

United States Court of Appeals, Sixth Circuit.

Argued June 5, 1974.

Decided Oct. 2, 1974.

Roger Owen Hooban, Knoxville, Tenn., for plaintiff-appellant.

Ronald C. Leadbetter, Knoxville, Tenn., for defendants-appellees.

William H. Haltom, Jr., Student Body President, U-T Student Government, Knoxville, Tenn., on brief for amicus curiae Student Body Association.

Before PHILLIPS, Chief Judge, and CELEBREZZE and ENGEL, Circuit judges.

PHILLIPS, Chief Judge.

Plaintiff-appellant, Roger Owen Hooban, a law student at the University of Tennessee at the time the suit was filed, brought this action pursuant to 42 U.S.C. 1983, claiming that his classification by university officials as 'out-of-state' for tuition purposes was 'arbitrary, unreasonable and invidious' and, thus, a violation of the Equal Protection Clause of the Fourteenth Amendment and, further, that his classification has violated his right to travel. District Judge Robert L. Taylor, after hearing the case without a jury, dismissed the action in an opinion reported at 371 F.Supp. 1111 (E.D.Tenn.1973). We affirm.

Appellant and his wife moved to Knoxville, Tennessee, from Arizona on September 17, 1971. He enrolled in and commenced attendance at the University of Tennessee School of Law on September 19, 1971. He was classified as an out-of-state student for tuition purposes. In September 1972, Mr. Hooban requested reclassification to in-state status. His request was denied. On September 26, 1972, Mr. Hooban appealed this denial to the University's Residency Fee Classification Committee and made an oral presentation to that committee. Subsequent review of his out-of-state classification within the administrative structure of the University proved fruitless. In March 1973, the University's Board of Trustees denied the request for in-state status. On May 22, 1973, Mr. Hooban filed suit against Dr. Edward J. Boling, President of the University of Tennessee, and Carl Pierce, Assistant Dean of the Law School, seeking declaratory and injunctive relief and damages. ¹

The issues on appeal are: (1) Whether the University of Tennessee's regulations for determining residency status for tuition purposes on their face or in their application are violative of the Equal Protection Clause of the Fourteenth Amendment; and (2) did Mr. Hooban's classification as an out-of- state student serve to penalize him for exercising his right to travel?

Under the University of Tennessee's regulations, ² a full-time student must be domiciled in the State for one year immediately preceding the last date for submitting application for enrollment to qualify as an in-state student for tuition and fee purposes. Regulations, paragraph 3(1), Appendix. Domicile is defined as a person's 'true, fixed and permanent home and place of habitation.' Id. at paragraph 2(3). Moreover, a person is presumed not to have gained instate status if he is a full-time student. Id. at paragraph 4(1). This presumption is not irrebuttable, but may be overcome by clear and convincing evidence. Id. at paragraph 4.

We hold that the one year residency requirement and the rebuttable presumption of out-of-state status do not violate the Equal Protection Clause, nor do they violate appellant's right to travel. Vlandis v. Kline, 412 U.S. 441, 452 & n. 9, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Hayes v. Board of Regents, 495 F.2d 1326 (6th Cir. 1974); Kelm v. Carlson, 473 F.2d 1267 (6th Cir. 1973); Sturgis v. State of Washington, 368 F.Supp. 38 (W.D.Wash.), aff'd mem., 414 U.S. 1057, 94 S.Ct. 563, 38 L.Ed.2d 464 (1973); Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970), aff'd mem., 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971).

Appellant has also challenged as being violative of the Equal Protection Clause that part of the regulations that permits the unemancipated children of residents who have just moved to Tennessee to be eligible immediately for in-state tuition if their parents establish domicile and are not full-time students. Regulations, paragraph 3(3), Appendix hereto. Furthermore, it is also argued that the policy of allowing new teachers at the University of Tennessee, and their families, the in-state tuition rate is violative of the Equal Protection Clause. Specifically, appellant contends that these classifications are 'arbitrary, unreasonable and invidious.'

The test by which these distinctions must be measured is whether they bear a rational relationship to a legitimate state objective. Hayes, supra, 495 F.2d at 1328; Kelm, supra, 473 F.2d at 1271; Sturgis, supra,368 F.Supp., at 41; Starns, supra, 326 F.Supp. at 239.

In Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970), a leading case dealing with the application of the Equal Protection Clause to state regulation, the Court stated:

'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.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 (31 S.Ct. 337, 340, 55 L.Ed. 369). 'The problems of government are practical ones and may justify, if they do not require, rough accommodations-- illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (33 S.Ct. 441, 443, 57 L.Ed. 730). 'A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426 (81 S.Ct. 1101, 1105, 6 L.Ed.2d 393).'

A state has a 'legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.' Vlandis, supra, 412 U.S. at 453, 93 S.Ct. at 2237.

We hold that the regulation that allows the unemancipated children of new, non-student residents who have established a domicile within the state to qualify for in-state tuition is reasonable and has a rational basis to a legitimate state objective. A primary justification for a one year waiting period in the case of full-time students is to achieve a partial cost equalization through the payment of the higher out-of-state tuition rate. This justification is present in the case of new, non-student domiciliaries. A non-student resident who is domiciled in the State may be expected to contribute to the economy of the State through employment, taxes and other expenditures. Moreover, it is wholly reasonable to expect a bona fide domiciliary to make intangible contributions to the State. The fact that the regulation requires the new resident to establish domicile and not be a full-time student is justified by the anticipation that he will shoulder in some way the burdens of his citizenship.

The classification is also justified as an effort by the State to insure that only bona fide domiciliaries will be given the preferential lower tuition rate. It is reasonable to expect that a non-student who has become domiciled in the State did not establish that domicile to take advantage of a lower tuition rate. On the other hand, a full-time student who is claiming in-state status may very well be motivated solely by a desire to escape the tuition surcharge. We believe that it is reasonable for a State to require a full-time student to reside in the State for one year as an element of domicile. Such a requirement does no more than demonstrate a student's bona fides and provide a period in which the State will receive some benefit, whether tangible or intangible, from the student's presence.

With respect to the policy of allowing new teachers at the University of Tennessee and their families the benefit of the in-state tuition rate, we see no equal protection violation. A State is entitled to offer in-state tuition to a new teacher and his family as part of the employment package, i.e., as a fringe benefit, even though the family has not resided in the State for one year. To hold otherwise might hamper the University's chances of attracting highly qualified teachers from other States.

We further hold that the 'right to travel' contention of appellant is completely without merit.

Finally, Mr. Hooban contends that, even if the regulations are constitutional it was, nevertheless, 'arbitrary, unreasonable and invidious' to refuse to classify him as an in-state student.

In Kelm v. Carlson, supra, 473 F.2d at 1271-1272, we recognize that it would not be arbitrary or unreasonable for a university to put a strong burden of proof as to change of residence on a former out-of-state student who was claiming in-state status. The University of Tennessee has adopted a clear and convincing evidence standard. Regulation, paragraph 4, Appendix. The regulations list a number of factors that a student may submit as evidence to overcome the presumption of continued out-of-state status. These considerations are listed in paragraph 5 of the Appendix, and are not all- inclusive as evidenced by item 6. Other factors that would also be relevant to a determination of domicile include: 1) car registration in State, 2) driver's license in State, 3) city or county sticker for car, 4) voter registration and voting in State, 5) payment of State and local taxes, 6) participation in community and professional activities in the State, 7) presence of immediate family and relatives in the State and 8) length of time in the State. See Vlandis, supra, 412 U.S. at 454, 93 S.Ct. 2230, 37 L.Ed.2d 63.

Any determination of domicile seeks to use the foregoing objective criteria to aid in establishing a subjective concept, i.e., intent to remain in the...