The Toll for Traveling Students: Durational-Residence Requirements for In-State Tuition after Saenz v. Roe

After the excitement of getting into the college of her choice wears off, a student may soon wonder how she will pay for her newfound prize. Though higher education is almost always a sound investment given its potentially tremendous return and importance in getting a good job, the cost is daunting- sometimes even prohibitive-for many students. Public undergraduate and graduate schools are an attractive option for many students because of lower tuitions. Yet state universities deny many students the full measure of this benefit. Public universities usually charge significantly higher tuition rates to out-of-state students than in-state students. A nonresident student may find herself paying as much as three times what her resident counterparts pay. Consequently, a student’s classification as a resident or nonresident may determine whether she can afford higher education. State statutes and school regulations often require that students have resided in the state for at least a year before they can be classified as residents for tuition purposes. As a result, state colleges frequently deny many students the benefit of lower tuition for at least a year, regardless of their intentions to make the state their permanent home. These sorts of waiting periods, which require that a person have resided in a state for a particular period of time before she is entitled to a benefit, are called durational-residence requirements. Durational-residence requirements raise a red flag for many constitutional law scholars because the Supreme Court has struck down many-though not all-of them. It is therefore unsurprising that many lawyers and scholars have argued that durational-residence requirements for in-state tuition are unconstitutional. Nevertheless, no court has found these requirements unconstitutional. Despite that no challenge has succeeded, this Note contends that durational-residence requirements for in-state tuition at public colleges and universities do indeed violate the fundamental right to travel. Part I argues that Saenz’s portability distinction is illusory and should not preclude the decision’s reasoning from applying to requirements for college tuition. Part II then asserts that because Saenz has moved from a severe-penalties rule to a nondiscrimination rule, courts should apply strict scrutiny in evaluating durational-residence requirements for in-state tuition. Furthermore, this movement undoes the reasoning behind pre-Saenz precedent that declined to apply heightened scrutiny. Finally, Part III argues that these requirements should fail strict scrutiny because either the state interests are not compelling or the means are not narrowly tailored to those interests.