Kelm v. Carlson

• Decision Date: 08 February 1973
• Docket Number: No. 72-1241.,72-1241.
• Citation: 473 F.2d 1267
• Parties: Russell A. KELM, Plaintiff-Appellant, v. William S. CARLSON et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

473 F.2d 1267 (1973)

Russell A. KELM, Plaintiff-Appellant, v. William S. CARLSON et al., Defendants-Appellees.

No. 72-1241.

United States Court of Appeals, Sixth Circuit.

Argued October 3, 1972.

Decided February 8, 1973.

Russell A. Kelm, in pro. per.

B. Gary McBride, Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, for defendants-appellees.

Before PHILLIPS, Chief Judge, and EDWARDS and McCREE, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant, a recent graduate of the Law School at the University of Toledo, appeals from the dismissal of his suit for reimbursement of $1,550 tuition fees charged him as an out-of-state resident. It is his claim that his federal constitutional rights to due process of law and to equal protection of the laws have been abridged by defendants (officers of the University) by their interpretation of the out-of-state tuition regulation in force at the University at the applicable times or by the regulation itself. He claims that jurisdiction of this case lies in the federal district court, under 42 U.S.C. § 1983 (1970) and 28 U.S.C. § 1343(3) (1970).

Appellees, properly, in our view, do not dispute the jurisdiction of the District Court to hear and decide the federal constitutional issues under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Lynch v. Household Finance Co., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1970); 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).

The District Judge dealt with the due process issue by remanding the matter to the defendants for the purpose of furnishing a written statement of the University's reasons for refusing to reclassify appellant as a resident of Ohio. That statement has now been furnished (as we will see) and we believe that the District Judge's opinion and order of June 16, 1971, has dealt adequately and correctly with the due process issue in this case.

What we deem to be left in this appeal is appellant's contention that the University regulation as interpreted created an arbitrary and unreasonable classification and denied him the equal protection of the laws.

The facts in this dispute have been accurately set forth in findings by the District Court:

"The court finds as fact that the plaintiff assumed residence in Toledo, Ohio, on or about June 1, 1968. He worked full time until October, 1968. He was married in the interim, his wife entering upon full-time employment as a teacher under a Toledo Board of Education contract. He enrolled in the University of Toledo College of Law in October of 1968.

"Initial enrollment was as a non-resident student as defined in Rule 1 of the 1968 University of Toledo Rules.

"Plaintiff enrolled in an R.O.T.C. Program because of a 1-A draft classification.

"He has resided in Toledo and has been continuously enrolled in the College of Law except for a required period of active duty. He has had some interim employment and has been self-supporting.

"One year later (October, 1969), without seeking the reclassification as provided for in Rule 6 of 1968 rules and Rule 5 of 1969 rules, plaintiff unilaterally classified himself and registered as an Ohio resident student, paying the lower student fees allowed thereby.

"On January 22, 1971, the bursar of the university, pursuant to an announced unlimited right of audit review, denied the plaintiff\'s resident status claim retroactive to October, 1969, and billed plaintiff for five quarters of non-resident surcharge fees. Plaintiff was required to register as a non-resident. The deposited fees represent the total due the university for non-residency classification.

"Thereafter, an appeal was taken to the Residency Committee in writing by and with supporting documents.

"On February 26, 1971, the plaintiff was notified that his reclassification was denied, and there was no further appeal provided, this latter on March 4, 1971. The plaintiff was finally notified on March 8, 1971, that a requested oral hearing or re-hearing was and will be denied."

Appellant's Application for Non-resident Fee Exemption was not filed until February 1, 1971. This suit was filed April 1, 1971, after the final denials of the application referred to above. With these facts before us, we turn to the narrow equal protection issue raised by petitioner.

The State of Ohio has authorized the boards of trustees of its state universities to "charge reasonable tuition for the attendance of pupils who are nonresidents of Ohio," O.R.C. § 3345.01 (1972), and to adopt rules and regulations pursuant thereto. O.R.C. § 3333.04 (1972).

No attack is made on these statutes, and federal case law upholds their validity. 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); Clarke v. Redeker, 259 F.Supp. 117 (S.D.Iowa 1966).

Pursuant to these statutes the Board of Trustees of the University of Toledo adopted a regulation concerning students' nonresident status, the currently disputed portions of which follow:

"4. A student who enters the State of Ohio from another state for the primary purpose of enrolling in an Ohio institution of higher education shall be considered to be a nonresident student during the period of continuous enrollment as a full-time student in an Ohio institution of higher education.

"5. A student classified as a nonresident student may be reclassified as a resident of Ohio for higher education subsidy purposes if:

a. the parents of a student under 21 years of age take up residence in Ohio and one of the parents is gainfully employed on a full-time basis in Ohio;

b. the student over 21 years of age presents a clear and convincing evidence to an administrative officer or administrative panel of the institution and there is a finding of exceptional circumstances justifying a change in classification because of having established a separate residence in Ohio for 12 months or more preceding the request for reclassification and because of having made definite commitments to enter into gainful employment in Ohio upon completion of a degree program."

Any possible ambiguity concerning the meaning of 5(b) language, "definite commitments to enter into gainful employment in Ohio upon completion of a degree program," was, we believe, resolved by the letter of the Residence Committee (written after the District Court remand) stating its reasons for rejecting appellant's application for exemption from the nonresident fee. That letter said in part:

"Pursuant to the Order of the Court herein contained in its Opinion filed June 16, 1971, the following reasons are submitted for the finding of the Residency Committee of The University of Toledo denying reclassification of residency status to Russell A. Kelm:

"1. The Committee finds that Mr. Kelm did not present adequate evidence pursuant to Rule 5 b. of Rules Governing Ohio Resident Qualifications of The University of Toledo or has made definite commitments to enter into gainful employment in Ohio upon completion of his degree program in the absence of any evidence presented to the Committee upon which it could determine that Mr. Kelm had an opportunity for employment in the form of an available position in Ohio for his acceptance."

It seems clear therefore that the terms in Rule 5(b) "made definite commitments to enter into gainful employment" include proof that the applicant for a nonresident exemption actually has a job in Ohio available to him at the time of his graduation, and that without such proof, he cannot acquire resident status for purposes of the University's tuition regulation.

Such a condition seems to us vulnerable to appellant's challenge as arbitrary and unreasonable. Since pregraduation offers are most frequently made to the top percentages of law school graduates, the regulation would discriminate against the majority of law graduates who in good faith had moved to Ohio and had established residence for all other purposes. It discriminates against members of that same majority who not only have moved to Ohio in good faith and establish residence there for all other purposes, but who, like the appellant, have secured employment in Ohio on a part-time basis to finance law school and whose wives are gainfully employed full-time in Ohio. In addition, it discriminates against those law school students who desire on graduation to go into practice for themselves. It would also work with discriminatory harshness as between students in classes graduating when hiring opportunities were numerous as compared to those in years when little if any pregraduation hiring was available.

The classification as nonresidents of all applicants who are unable to secure pregraduation job commitments from prospective employers represents an irrebuttable presumption which has no reasonable relation to fact.

Although in our instant case the class excluded by the above-described irrebuttable presumption is somewhat smaller than is the class excluded in Kline v. Vlandis, 346 F.Supp. 526 (D.Conn.1972), we find the constitutional reasoning and logic of the Vlandis case both applicable to this case and persuasive:

Assuming that it is permissible for the state to impose a heavier burden of tuition and fees on non-resident than on resident students, the state may not classify as "out of state students" those who do not belong in that class. Whether the statute is construed as creating an irrebutable sic presumption or as a rule of substantive law, that is what it does. In Heiner v. Donnan, 285 U.S. 312, 321, 52 S.Ct. 358, 359, 76 L.Ed. 772 (1932), the Court was confronted with a constitutional challenge to a federal statute which imposed a higher tax on transfers of property made by any donor within two years of his death because such transfers "shall be deemed and held to have been made in contemplation of death . . . ." In holding that the statute which imposed a tax upon an assumption of fact which the taxpayer was

...