Sturgis v. State of Washington

WILLIAM G. EAST, District Judge

(dissenting).

I respectfully dissent from the majority’s disposition of the claims of the Washington resident plaintiffs. I disagree with the Starns’ reading of Shapiro, and believe that authority is undeserving of the majority’s faith. Starns took its lead from Kirk v. Board of Regents of University of California, 273 Cal.App.2d 430 , 78 Cal.Rptr. 260 (1969), an early misreader of Shapiro, and nurtured three misconceptions into its untenable approval of the durational residence requirement.

I believe Starns misconceives, first, the right and the privilege of the plaintiffs affected by the classifications and secondly, the State of Washington’s asserted interest in support of the classifications and, lastly, the appropriate test under which such interest is to be evaluated.

At the outset I outline my understanding of the obligation on the part of the State of Washington to its residents in the context of this cause. The State does not have any obligation to furnish its residents, at public expense, with any program of higher education, nor as far as it matters, any program of welfare benefits, public parks or public health or protection. However, when its legislature does provide by law at public overall expense any such program, meager or abundant as it may be, Washington is obligated to offer that program, subjected, as it may be, to any lawful police power regulation and conditions of fiscal recoupment, to all its. residents on an equal basis.

“The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide ‘in any state’ on an equality of legal privileges with all citizens under non-discriminatory laws.” Takahashi v. Fish & Game Comm’n, 334 U.S. 410 at 420 , 68 S.Ct. 1138 at 1143 , 92 L.Ed. 1478 (1948), cited in Graham v. Richardson, 403 U.S. 365 at 374 , 91 S.Ct. 1848 at 1853 , 29 L.Ed.2d 534 (1971).

The State of Washington has recognized the advantages of a system of higher education to its inhabitants and the legislature has enacted laws establishing a program for such at public expense. Those laws together with lawful regulations thereunder provide for conditions of eligibility for enrollment and the fixing of tuitional charges to be met by the students in order to share and *43 participate in the offered system or program of higher education. The particular statute under challenge is a mandatory guide for fixing tuitional amounts to be paid by students for the recoupment of fiscal outlay by the State in providing the program. 1 Our ultimate query then is: Whether that statute and the regulations thereunder grants the plaintiffs “equality of legal privileges with all [residents] under non-discriminatory laws.”

We start with these two undisputed basics:

1. The statute for tuition purposes divides Washington’s higher education student population or residency into two classifications,

a) the year plus, or old resident, and

b) the minus year, or new resident. 2

2. That the statute and regulations thereunder effectuate a tuition charge of X dollars to the old resident student in classification a) and tuition charges of X plus dollars to the new resident. student in classification b). In short, the statute economically favors one class of residents and discriminates against another. This act of discrimination is conceded by Starns, 326 F.Supp. at 238.

Our course then is clearly charged in the following paraphrase of the language in Dunn, 405 U.S. at 335, 92 S.Ct. 995 . To decide whether the statute violates the Equal Protection Clause, we look, in essence, to three things: the character of and the basis for the classification b) — a new resident of less than one year duration; the individual interests affected by the classification- — the economic burden or penalty placed upon the new resident student by reason of the fact that he has recently traveled to the State of Washington; and the interests of the State of Washington asserted in support of the -classification on fiscal outlay and recoupment. In the present case, whether we look to the benefit withheld by the classification (the opportunity to participate on an economic equality of legal privileges with old residents) or the basis for the classification (recent interstate travel), I would conclude that Washington must show a substantial and compelling reason for imposing the durational residence requirement.

I will decline to burden this dissent with further discussion of the claim of unequal treatment arising from the benefit withheld or the economic burden imposed by the classification b). The Equal Protection Clause just simply prohibits such apportionment of State services. Shwpiro, 394 U.S. at 632-633, 89 S.Ct. 1322 . 3

The basis for the statutory creation of classification b) composed of new resident students is made possible solely because its members have recently, within Í to 364 days, elected to travel to and live at a place of their choosing, the State of Washington. This freedom to travel is not limited to a mere directional concept or act of interstate commerce but embraces the fundamental right of an individual to go about in his own individualistic pursuit of happiness, and receive equal treatment under the laws of a given state.

“The constitutional right to travel from one State to another occupies a position fundamental to the *44 concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.

“. . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Shapiro, 394 U.S. at 630-631 , 89 S.Ct. at 1329 .

“Thus, the durational residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel.” Dunn, 405 U.S. at 338 , 92 S.Ct. at 1001 .

Shapiro did not consider the statute before it was geared to deter traveling and then find as a fact the statute was non-deterrent to traveling as did Starns, but on the contrary clearly held “in moving from State to State [plaintiffs] were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional,” 394 U.S. at 634 , 89 S.Ct. at 1331 . See San Antonio School District v. Rodriguez, 411 U.S. 1 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 , March 21, 1973.

Our clear obligation then is to measure the durational residence requirement of the statute by a strict equal protection test and determine whether Washington has demonstrated that such a requirement is “necessary to promote a compelling government interest.”

The evidence before us discloses that the administrators of Washington’s system of higher education under Washington’s statute and regulations from time to time fix the tuition charges for the old resident student at a figure below the accountant’s ascertainment of a per student cost of the system. In other words, the resident student is subsidized at some State expense.

On the other hand, new resident student’s tuition is fixed in an equal amount plus a differential in amount theoretically equal to the subsidy granted the old resident student.

The evidence further discloses that the aggregate of the differential charged and collected from new resident students annually approximates nine million dollars. This figure indeed represents a substantial fiscal and budgeting resource in recoupment, if upheld, of the public expense in maintaining the system, however, by the same token, a substantial penalty upon those who have exercised their fundamental right to travel, live in the State of Washington and participate in a public program that is open to other residents at a lower admission price.

If Washington is required to grant equality of legal privileges to the new resident students and forego the annual recoupment of fiscal outlay, it will necessarily burden the fiscal program of the State. Albeit, that result is the command of the Equal Protection Clause.

“ [A] State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. . . .” Shapiro 394 U.S. at 633 , 89 S.Ct. at 1330 .

Since a new resident student as well as an old resident is a “person” for equal protection purposes, Washington’s concern for fiscal integrity, expenditure or recoupment is no more compelling a justification for the classification b) in this case than it was in Shapiro.

I would void the statute so far as it establishes classification b).

. As distinguished from “a reasonable durational residence requirement” to evidence a bona fide residency. Such a requirement, similar to pre-election date residence voters registration and pré-examination date residence bar applicants registration requirements, appears to have been approved under Vlandis v. Kline, 412 U.S. 441 , 93 S.Ct. 2230 , 37 L.Ed.2d 63 , June 11, 1973. The Washington Statute is not intended nor geared to be a residence evidencing or purity measure, nor can a period of one year be logically determined to be a reasonable period of time for such a purpose.

. In any language the classification b) results in a durational residence requirement.

. See Mr. Justice White’s concurring Opinion in Vlandis at Page 2238.