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Belmont Law Review

Abstract

State universities charging out-of-state tuition prices through the use of durational residency requirements is unconstitutional in violation of the Privileges and Immunities Clause of Article IV for students who come into a state in order to attend school there because the practice hinders the operation of a system of higher education within the nation as a whole by allowing states to confer the privilege of in-state tuition upon residents that people coming into the state from other states do not receive. Additionally, the practice of using durational residency requirements in determining who is eligible for in-state tuition violates the right to travel as protected under the Privileges and Immunities Clause of the Fourteenth Amendment. The right to travel is violated because the requirements create discriminatory classifications among newer residents and long-term residents that penalize the right of a citizen to be treated the same in his new state of residence as those who have already lived there for the period of time specified by the durational residency requirement. Furthermore, the practice of charging out-of-state tuition rates to students who come into the state from external states poses serious policy concerns through unfair application of durational residency requirements. This practice places a significant obstacle in the way of students who wish to obtain a higher education at a university in another state in the form of exponentially higher tuition rates. In Section I, this Note first looks at residency as states define it for tuition purposes and how states use durational residency requirements to determine whether a student qualifies for in-state tuition rates or not. In Section II, this Note discusses the history of the Privileges and Immunities Clause of Article IV in order to provide a background for how this issue fits within the protections of the clause, taking a look at its origins and its evolution. In Section III, this Note discusses the constitutional implications of a state conferring the benefit of in-state tuition on its residents to the detriment of students coming from out of state under the purview of the Privileges and Immunities Clause of Article IV. In Section IV, this Note discusses the Privileges and Immunities Clause of the Fourteenth Amendment to see how these protections apply to the states and, more specifically, how out-of-state tuition prices infringe upon the right to travel as protected under this clause. In Section V, this Note’s primary argument outlines how the practice of imposing durational residency requirements for in-state tuition purposes violates the right to travel under the Privileges and Immunities Clause of the Fourteenth Amendment.

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