Starns v. Malkerson

• Decision Date: 22 September 1970
• Docket Number: No. 4-70 Civ. 26.,4-70 Civ. 26.
• Citation: 326 F. Supp. 234
• Parties: Lynn G. STARNS and Lynda J. Mack, Plaintiffs, v. Lester A. MALKERSON et al., Defendants.
• Court: U.S. District Court — District of Minnesota

326 F. Supp. 234

Lynn G. STARNS and Lynda J. Mack, Plaintiffs, v. Lester A. MALKERSON et al., Defendants.

No. 4-70 Civ. 26.

United States District Court, D. Minnesota. Fourth Division.

September 22, 1970.

Warren E. Mack, Minneapolis, Minn., for plaintiffs; Lynn S. Castner, Minneapolis, Minn., of counsel.

R. Joel Tierney, Minneapolis, Minn., for defendants.

Before BRIGHT, Circuit Judge, NORDBYE, Senior District Judge, and LORD, District Judge.

MILES W. LORD, District Judge:

The Board of Regents of the University of Minnesota has promulgated a regulation which provides in part that, "No student is eligible for residence classification in the University * * * unless he has been a bona fide domiciliary of the state for at least a year immediately prior thereto." The effect of this regulation is to impose on any person moving into the State a one year durational residency requirement to qualify as a resident for tuition purposes at the University. This case raises the issue of whether the regulation is unconstitutional as violative of the Equal Protection Clause. For reasons which follow, we have concluded in the negative.

The plaintiffs married their husbands in 1968 while their husbands were enrolled in the School of Law of the University of Chicago. In June of 1969, plaintiffs moved to Minnesota with their husbands who had obtained employment in Minnesota. Neither plaintiffs nor their husbands claim residency in Minnesota for purposes of this action prior to June, 1969. Both plaintiffs enrolled as full-time students at the University for the 1969-1970 school year and were classified as nonresident students by the University. This meant that they were required to pay tuition in an amount more than double that they would have had to pay had they been classified as resident students. The classification of the plaintiffs as nonresident students was made pursuant to the Board of Regents' tuition regulations, printed on the University's "Application for Resident Classification", paragraph 1 of which provides:

No student is eligible for resident classification in the University, in any college thereof, unless he has been a bona fide domiciliary of the state for at least a year immediately prior thereto. This requirement does not prejudice the right of a student admitted on a nonresident basis to be placed thereafter on a resident basis provided he has acquired a bona fide domicile of a year's duration within the state. Attendance at the University neither constitutes nor necessarily precludes the acquisition of such a domicile. For University purposes, a student does not acquire a domicile in Minnesota until he has been here for at least a year primarily as a permanent resident and not merely as a student; this involves the probability of his remaining in Minnesota beyond his completion of school.

Plaintiffs appealed from their nonresident classifications and on January 12, 1970, the Board of Review on Resident Status acted on their petitions and classified them as residents. Pursuant to the one-year waiting rule, however, the Board postponed the effectiveness of the classification for tuition purposes until the first summer session, 1970. The beginning of the first summer session, 1970, coincides with the first anniversary of plaintiffs' continuous presence in the State of Minnesota.

On January 23, 1970, plaintiffs instituted this action asserting federal jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983, to redress the alleged deprivation of Federal Constitutional rights. Plaintiffs claim that the facts in this case establish that they are residents of the State of Minnesota, and that they have been so since June of 1969 when they first moved into the State. They claim that with their physical presence in the State plus their intention of making Minnesota their permanent home, they have established that they are bona fide domiciliaries of the State. This being true, plaintiffs contend that the regulation in question, by imposing a one-year durational residency requirement for tuition purposes at the University, creates two classes of residents: First, those who have resided within Minnesota for over one year; and second, those who have resided within Minnesota for less than one year. On the basis of this sole difference, those in the first class are required to pay resident tuition while those in the second class are required to pay nonresident tuition. Plaintiffs assert that this classification is unreasonable and violates the Equal Protection Clause. Plaintiffs further contend that the one-year waiting period discriminates among persons whose situation is otherwise identical, solely on the basis of the exercise of a constitutionally protected liberty. Plaintiffs seek an Order (1) declaring the regulation in question unconstitutional and void as violative of the Equal Protection Clause; (2) permanently enjoining the defendants from classifying them nonresidents; (3) classifying them residents for tuition purposes at the University; and (4) granting compensatory damages for the excess nonresident tuition fees paid during the 1969-1970 school year.

This three-judge court was convened pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284 by the Chief Judge of the Eighth Circuit on April 29, 1970.

At the outset it is important to note what is not at issue in this case. Plaintiffs do not challenge the right of the University to charge nonresident students higher tuition than that paid by residents. This issue was raised in Johns v. Redeker, 406 F.2d 878 (8 Cir. 1969), and Clarke v. Redeker, 259 F. Supp. 117 (S.D.Iowa 1966), and the courts therein held that the distinction between residents and nonresidents for tuition purposes is reasonable and constitutional. See also, Landwehr v. Regents of University of Colorado, 156 Colo. 1, 396 P.2d 451 (1964); Bryant v. Regents of University of California, 188 Cal. 559, 205 P. 1071 (1922). Nor do the plaintiffs challenge the right of the University to use a durational residency test as a rebuttable presumption of nonresidency. This issue was likewise decided in Clarke v. Redeker, supra. The sole issue here is whether it is constitutionally permissible for a state to create an irrebuttable presumption that any person who has not continuously resided in Minnesota for one year immediately before his entrance to the University is a nonresident for tuition purposes.

Our initial concern is to determine the standard we must apply in evaluating the classification made by the regulation. When the discrimination created by a statute or regulation infringes on a person's fundamental rights, the Supreme Court has said that it is not afforded the deference usually given to the judgment of state legislatures. See, e.g., Kramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Harper v. Virginia State Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). The test in such a case is not whether there is a "rational basis" for the distinctions made, but rather whether the distinctions are necessary to promote a "compelling state interest". Kramer v. Union Free School District No. 15, supra, 395 U.S. at 627-628, 89 S.Ct. 1886. On the other hand, when the classification does not affect a fundamental right, its constitutionality is to be judged on the basis of whether the distinctions drawn by the statute have some rational relation to a legitimate state interest. See, e.g., McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L. Ed. 369 (1911).

Plaintiffs assert that we are dealing here with the infringement of a basic, fundamental right—the right to interstate movement—and thus we must apply the "compelling state interest" test. Plaintiffs rely on Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), in which the Supreme Court declared unconstitutional state and the District of Columbia statutory provisions denying welfare assistance to residents who had not resided within their jurisdictions for at least one year immediately preceding their application for such assistance. In that case the Court held that the one-year waiting period for welfare assistance served to penalize the exercise of the constitutional right to travel and thus, unless the classification was shown to be necessary to promote a compelling governmental interest, it was unconstitutional. The plaintiffs argue here that, "The inescapable effect of the one-year residence requirement is to deter persons from moving into the state in order to establish a new residence * * * or, when the deterence was insufficient, to disadvantage them on account of their exercise of liberty of movement." Thus, they claim that the classification created by the regulation must also be shown to be necessary to promote a compelling governmental interest to be constitutionally permissible.

We believe that this case is distinguishable from Shapiro in two important respects. First, in Shapiro the Supreme Court found, based on weighty evidence, that the one-year waiting period for welfare assistance had as a specific objective the exclusion from the jurisdiction of the poor who needed or may need relief. Shapiro v. Thompson, supra at 628-629, 89 S.Ct. 1322. The Court stated that such a purpose could not serve as a "justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible." Id. at 629, 89 S.Ct. at 1329.

Here, by contrast, there are no state of facts upon which this Court could posit, as a finding of fact, that the one-year waiting period for resident tuition purposes has as a specific objective excluding or even deterring out-of-state students from attending the University. The record indicates, in fact, that of the approximately 50,000 students enrolled in the University in the fall of 1968,...