# In-state vs. Out-of-state tuition - constitutional? **URL:** \ **Category:** Great Debates\ **Created:** [June 6, 2001, 2:54pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804 "2001-06-06T14:54:57Z")\ **Posts on this page:** 16\ **Page:** 1
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [June 6, 2001, 2:54pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/1 "2001-06-06T14:54:57Z")
My constitutional law professor argued that the widespread practice of charging different tuition for in-state and out-of-state students at state-sponsored universities violated the privileges and immunities clause. She analogized to the cases that say you can’t condition welfare benefits on the basis of length of residence. It seems to me that there’s a difference between length of residence and whether or not you are a citizen of a state. I could see an argument against a practice of setting a _higher_ standard for becoming eligible for in-state tuition than the standard for welfare, taxes, etc. Any legal scholars out there with opinions on this? ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 6, 2001, 3:05pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/2 "2001-06-06T15:05:22Z")
If I understand it correctly, the instate/outof state tuition for state sponsored universities has to do with the **fact** that such universities get state funding - ie taxpayer $$. So, the person who is a state resident has already paid support to the university, those from out of state have not. I’ll grant you that the residnet requirement (typically a year) won’t really garner much in the way of actual $$s per resident, however, that’s the rational, and, as such, I think it’s valid. Our local zoo does the same sort of thing. (IANALegal Scholar) ---
**Author:** ![Duck\_Duck\_Goose](https://avatars.discourse-cdn.com/v4/letter/d/50afbb/32.png) [@Duck\_Duck\_Goose](https://boards.straightdope.com/u/Duck_Duck_Goose)\ **Post date:** [June 6, 2001, 3:20pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/3 "2001-06-06T15:20:53Z")
No idea, but is this what your prof was talking about? [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/newresidents.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/newresidents.htm) > [@](#): > > The Right of New State Residents to Equal Benefits > > The issue: Does the Constitution allow states to give benefits to most state residents, but not to those newly arrived in the state? > > Introduction > Although the word “travel” does not appear in the Constitution, the right to travel from state to state is embedded in Supreme Court caselaw. As the Court recently clarified in its 1999 decision, Saenz v Roe, the “right to travel” embraces three different components: (1) the right of a citizen of one state to enter and leave another state, (2) the right to be treated as a welcome visitor and not an unfriendly alien while temporarily present in a second state, and (3) for those travelers who elect to become residents of another state, the right to be treated like other citizens of that state… ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [June 6, 2001, 3:33pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/4 "2001-06-06T15:33:54Z")
> [@](#): > > \*Originally posted by wring \* > So, the person who is a state resident has already paid support to the university, those from out of state have not. I’ll grant you that the residnet requirement (typically a year) won’t really garner much in the way of actual $$s per resident, however, that’s the rational, and, as such, I think it’s valid. The problem is, that’s precisely the reasoning that the Court rejected in the welfare cases. You can’t deny welfare benefits to a new resident (or I think even a temporary resident), even if _they moved to the state for the sole purpose of receiving better welfare benefits_. > [@](#): > > Our local zoo does the same sort of thing. It charges different rates for in-state and out-of-state visitors? I’ve never heard of something like that! Where is it? How do they enforce it? ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [June 6, 2001, 3:38pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/5 "2001-06-06T15:38:15Z")
> [@](#): > > \*Originally posted by Duck Duck Goose \* > No idea, but is this what your prof was talking about? > > [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/newresidents.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/newresidents.htm) Yes, _Saenz v. Roe_ is the most recent case on this topic. What I’m wondering is whether there is some principled distinction between welfare benefits and reduced tuition that this could rest on. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 6, 2001, 3:40pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/6 "2001-06-06T15:40:31Z")
> [@](#): > > \*Originally posted by ENugent \* > \*\* > > > [@](#): > > > > \*Originally posted by wring \* > > So, the person who is a state resident has already paid support to the university, those from out of state have not. I’ll grant you that the residnet requirement (typically a year) won’t really garner much in the way of actual $$s per resident, however, that’s the rational, and, as such, I think it’s valid. > > The problem is, that’s precisely the reasoning that the Court rejected in the welfare cases. You can’t deny welfare benefits to a new resident (or I think even a temporary resident), even if _they moved to the state for the sole purpose of receiving better welfare benefits_. > > > [@](#): > > > > Our local zoo does the same sort of thing. > > It charges different rates for in-state and out-of-state visitors? I’ve never heard of something like that! Where is it? How do they enforce it? \*\* It’s not the same reasoning - in the case of the tuition, being a resident of the state means that you’ve paid some form of state taxes (even if it’s only sales taxes), which go, in part, to support the school. Different reasoning. Re: the zoo - it charges something like $1 for a resident of the city and $3 or so for out of city residents, again, the concept is that city residents, by paying income taxes and property taxes (either directly on owned property or indirectly on rentals) have already paid to support the zoo, while out of city people have not. They look at your id card, no id card proving you’re a resident, you pay the out of city fees. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 6, 2001, 3:49pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/7 "2001-06-06T15:49:30Z")
Interesting question, although I don’t have my old Con Law resources to attempt an answer at the moment. My gut feeling is that the courts would uphold the tuition discrepancies, although I can’t figure out how the analysis would go right now. Mostly, though, I just want to point out that there are other examples of disparate fees being charged to residents and nonresidents of a state. For instance, if you take a look at [this page](http://www.thefishernet.com/staterg.htm#TX), you’ll find that pretty much every state charges nonresidents higher fees for hunting and fishing licenses. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [June 6, 2001, 4:11pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/8 "2001-06-06T16:11:06Z")
> [@](#): > > \*Originally posted by wring \* > It’s not the same reasoning - in the case of the tuition, being a resident of the state means that you’ve paid some form of state taxes (even if it’s only sales taxes), which go, in part, to support the school. Different reasoning. Where does the money for welfare payments come from, then? In another case, IIRC, the Court struck down a provision allowing state-supported hospitals to charge higher emergency-room fees to out-of-state patients, where the state argued that the residents’ taxes supported the hospital and so they had “prepaid”. I actually agree that the Court would probably uphold the differential rates - it’s just not clear to me how they’d get there. I am very surprised that your zoo can get away with differential fees, though - equal access to parks is one of the classic “privileges and immunities” that the state can’t deny to citizens of other states. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 6, 2001, 4:23pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/9 "2001-06-06T16:23:22Z")
> [@](#): > > \*Originally posted by ENugent \* > \*\*What I’m wondering is whether there is some principled distinction between welfare benefits and reduced tuition that this could rest on. \*\* how about ‘needs based’ vs. non needs based.? the concept is that welfare and er visits are based on immediate need, not on any specific choice, whereas university schooling, zoo visits, hunting etc. are not. ---
**Author:** ![wring](https://avatars.discourse-cdn.com/v4/letter/w/838e76/32.png) [@wring](https://boards.straightdope.com/u/wring)\ **Post date:** [June 6, 2001, 4:32pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/10 "2001-06-06T16:32:30Z")
welfare payments [are largely federal tax $$](http://www.geocities.com/CapitolHill/Lobby/8460/welfareques.htm) sometimes supplemented by local state funding. Cost of living varies widely from state to state, so this shouldn’t be surprising. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [June 7, 2001, 12:10pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/11 "2001-06-07T12:10:14Z")
> [@](#): > > \*Originally posted by wring \* > \*\*welfare payments [are largely federal tax $$](http://www.geocities.com/CapitolHill/Lobby/8460/welfareques.htm) sometimes supplemented by local state funding. Cost of living varies widely from state to state, so this shouldn’t be surprising. \*\* My knowledge is almost exclusively pre-welfare reform - I stopped working in the field of welfare benefits in 1994. However, at least in the pre-block grant days, AFDC was _always_ supplemented by local state funding. Some state funds were required by the Feds. Furthermore, at least some states in the olden days had separate wholly state-paid welfare programs for those who didn’t qualify for AFDC, and they couldn’t discriminate against recent residents for that either. Also **wring** , your ‘needs v. non-needs’ is probably how the courts will come out, but I see a problem - a person on welfare in another state can move to a different state explicitly to get higher bennies, and still must be given welfare. Their needs were already taken care of (in theory) in the other state. Finally, the whole pre-pay of tuition via state taxes also has a problem - state funding doesn’t cover the whole of a university’s costs less tuition. Both the feds and non-governmental sources (alumni giving, corporate donations, interest on endowment, etc.) all go into the mix, and the state has no claim on this money. I don’t know the answer, and I’m actually very surprised this hasn’t been litigated. I agree that the courts would probably reject this argument, but I’m not sure how they can do it honestly. Sua ---
**Author:** ![bibliophage](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bibliophage/32/7615_2.png) [@bibliophage](https://boards.straightdope.com/u/bibliophage)\ **Post date:** [June 7, 2001, 1:17pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/12 "2001-06-07T13:17:35Z")
> [@](#): > > Yes, Saenz v. Roe is the most recent case on this topic. > > What I’m wondering is whether there is some principled distinction between welfare benefits and reduced tuition that this could rest on. The [decision of the court in the _Saenz_ case](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=461&invol=321&pageno=328) makes an exception for education. > [@](#): > > Moreover, because whatever benefits they [welfare recipients] receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a college education, that will be enjoyed after they return to their original domicile This principle is spelled out more forcefully in Chief Justice Rehnquist’s [dissent in the _Saenz_ case](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=98-97#section2) > [@](#): > > Thus, the Court has consistently recognized that while new citizens must have the same opportunity to enjoy the privileges of being a citizen of a State, the States retain the ability to use bona fide residence requirements to ferret out those who intend to take the privileges and run. As this Court explained in Martinez v. Bynum , 461 U. S. 321, 328-329 (1983): "A bona fide residence requirement, appropriately defined and uniformly applied, furthers the substantial state interest in assuring that services provided for its residents are enjoyed only by residents. . . . " The Martinez Court explained that “residence” requires “both physical presence and an intention to remain,” see id., at 330, and approved a Texas law that restricted eligibility for tuition-free education to families who met this minimum definition of residence, id. , at 332-333. > . . . States employ objective criteria such as durational residence requirements to test a new resident’s resolve to remain before these new citizens can enjoy certain in-state benefits. Recognizing the practical appeal of such criteria, this Court has repeatedly sanctioned the State’s use of durational residence requirements before new residents receive in-state tuition rates at state universities. Starns v. Malkerson , 401 U. S. 985 (1971), summarily aff’g 326 F. Supp. 234 (Minn. 1970) (upholding 1-year residence requirement for in-state tuition); Sturgis v. Washington , 414 U. S. 1057 , summarily aff’g 368 F. Supp. 38 (WD Wash. 1973) (same). … See Vlandis v. Kline , 412 U. S. 441, 453-454 (1973). ---
**Author:** ![OxyMoron](https://avatars.discourse-cdn.com/v4/letter/o/e9a140/32.png) [@OxyMoron](https://boards.straightdope.com/u/OxyMoron)\ **Post date:** [June 7, 2001, 1:18pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/13 "2001-06-07T13:18:41Z")
Of course I’ve long since pitched my law-school texts, but I’m remembering in the back of my head that in-state v. out-of-state _was_ litigated, and through a series of cases the Court decided that a “waiting period” of one year’s residence was the most that a state could impose. I’m not sure how “residence” is defined with students, especially if they’re still being supported by their parents, return to their parents’ houses for vacations, etc. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [June 7, 2001, 3:18pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/14 "2001-06-07T15:18:56Z")
> [@](#): > > \*Originally posted by bibliophage \* > This principle is spelled out more forcefully in Chief Justice Rehnquist’s [dissent in the _Saenz_ case](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=98-97#section2) Wow - thanks. My casebook left out the dissent in _Saenz_, so I didn’t know about this. Maybe I should point it out to my professor. ---
**Author:** ![CrankyAsAnOldMan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crankyasanoldman/32/11670_2.png) [@CrankyAsAnOldMan](https://boards.straightdope.com/u/CrankyAsAnOldMan)\ **Post date:** [June 8, 2001, 4:39pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/15 "2001-06-08T16:39:20Z")
The University of Michigan has an extremely tough residency requirement, at least for graduate students. Even buying property in the state is insufficient to change your status. If the U has reason to believe that your only motivation for moving to and staying in MI (and buying your house, say) was to attend school, you’ll be paying non-resident tuition throughout your enrollment. If juicy challenge cases exist in the legal system, I’ll bet U of MI is the source of several. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [June 8, 2001, 11:06pm UTC](https://boards.straightdope.com/t/in-state-vs-out-of-state-tuition-constitutional/67804/16 "2001-06-08T23:06:49Z")
In the case of the U of PR, which has probably one of if not _the_ lowest-priced in-state tuition of a fully accredited State U. under the US flag ($30/SemesterHour undergrad, $75/SH grad [$125/SH Med and Law IIRC])(\* ), the residency requirements are also quite cumbersome. It’s virtually impossible for someone who is not from around here to be “redomiciled” to attend UPR or while attending. ( \* ) (Though the non-tuition costs of a degree here – room, board, books, fees, insurance, parking, beer, bail… – are just about as high as anywhere in the states, if the de-facto expectation that you be native-like fluent in Spanish is not deterrent enough.) jrd