Warren E. Burger: -- number 72-493, Vlandis against Kline and others. Mr. Hill you may proceed.
John G. Hill, Jr.: Thank you, Your Honor. Mr. Chief Justice and may it please the Court. The named appellant in this case is John Vlandis who was the Director of Admissions at the University of Connecticut. The appellees were both students at the time of the bringing of this action and what they seek to question is the constitutionality of a Connecticut General Statute, setting an out of state differential in tuition for students. And they particularly single in on a line of a statute, which states that once the out of state status has been determined, the students shall maintain the status for the balance of his or her attendance at the institute of higher education. I would point out that although the word permanent is used throughout the briefs and in the record below, the statute is not permanent in the complete sense, in that a student originally out of state, may still come into Connecticut before applying for admission, and at that time, gain in-state status. So I think what we've really got here is something more than permanent. I think what is really being argued is a durational test for tuition differentials. Now this is the point that is specifically brought up on the amicus briefs and were filed by the University of Washington and also by the Civil Liberties Union of Ohio. I think that is the real question that is here before the Court, mainly what durational test can a state place in making this discrimination as to in-state or out-state. It's a question of considerable importance. One analyst estimates that some $300-400 million maybe as stake for state supported institutions of higher education. I think my particular problem that I have to persuade the Court as to is whether or not the Court's decision in Dunn v. Blumstein should be expanded to cover an out of states tuition situation rather than voting rights. And it's this I'm going to address myself too because I think this is the particular question that I have to make.
Thurgood Marshall: In Dunn v. Blumstein even if he is there, over the period of time he is not eligible to vote?
John G. Hill, Jr.: That is correct Your Honor, that is --
Thurgood Marshall: If he -- how long has he stayed in college in Connecticut? Does it run up to PhD?
John G. Hill, Jr.: Yes, Your Honor. Yes, PhD is offered.
Thurgood Marshall: If the person enrolls in the University and the next day he becomes a citizen, and the next year votes, he is still a non-resident for seven years so far as University is concerned?
John G. Hill, Jr.: Well, Your Honor, that is the way it's been interpreted. Actually, it's been interpreted that there could be a break after they award the degree, but your principle is correct, Your Honor, that once he has established say he comes to the University of Connecticut, he is a freshman, he is going to -- he is classified out of state to begin with, he is going to remain out of state.
Thurgood Marshall: If he gets elected the Mayor of Town of New Haven, he is still a non-resident?
John G. Hill, Jr.: That is correct Your Honor.
Thurgood Marshall: And how in the world do you justify that?
John G. Hill, Jr.: Your Honor, I justify that on this basis. Dunn v. Blumstein set up a formula that applied to voting rights. It was almost a mechanistic formula. It said any durational residence requirement triggered this consuming state interest standard. A standard which I have to agree with the Chief Justice's words in that case, is almost an insurmountable obstacle for the state to meet, but I think it's fair for the state -- for this Court to limit the judgment in Dunn v. Blumstein to a voting situation or as it did in Shapiro to a welfare situation. I think we're talking about something different when we're talking about a tuition differential. We're not trying to say in this case that the person cannot establish residency for voting purposes. We're not saying he can't establish it for purposes of receiving welfare as Shapiro was based. What we are saying is that the Court ought to look to the nature of the right that is affected. In this case, it's the right to receive a subsidized education on the part of the state.
Potter Stewart: You just told us, but you're not saying that's helpful, but on the other hand, unless I'm mistaken, your brothers on the other side are not saying either that a state university may not charge a differential, a higher tuition of non-residents and than it does to residents. It's attacking only the definition. Isn't that there?
John G. Hill, Jr.: Well, I think it's a little more than that Your Honor. I think what they're saying is that the state can't classify them for that four-year period and I'm saying that really what we've got here is a durational requirement, because the person can establish residency as long as they're not attending the institution.
Potter Stewart: Well, a non-married student would have to live for a solid year in Connecticut before applying?
John G. Hill, Jr.: That is correct Your Honor.
Potter Stewart: As I understand your definition and a married student would have to be in Connecticut at the time he or she applied?
John G. Hill, Jr.: That's correct and I don't think that present any particular hardship, what that means --
Potter Stewart: That's concerned at your argument, I know, but I just saw and I can understand the issue because it's not that clear to me. I had thought that your opponents did not say, did not question the right of a Connecticut State University to charge a higher tuition of, bona fide a non-residents than they do of residents.
John G. Hill, Jr.: They do not.
Potter Stewart: But they do attack, the presumption that once a non-resident, always a non-resident and the inability of anybody to prove that he actually is a bona fide resident of Connecticut at some stage of the game, isn't that it?
John G. Hill, Jr.: That's right and they should have the opportunity to show a changed circumstance.
Potter Stewart: Yes.
John G. Hill, Jr.: And what I'm arguing is that under the “rational basis” test, this -- what amounts to a one year waiting period is a rational approach for the state to take to help finance the system of higher education, because we're not talking about even the out of state person deferring the entire cost of his education. This is still heavily subsidized by the state and I think this is true in every state. What I am arguing is, that this is a reasonable judgment for the legislature to make. This is a reasonable way to approach the problem and I think it's the same principle that --
Thurgood Marshall: How is it reasonable to say that the Mayor of New Haven is not a resident?
John G. Hill, Jr.: He is not a resident for tuition purposes, Mr. Justice. We're not saying that he is a not a resident that he can't have all the other perquisites of citizenship.
Thurgood Marshall: Well, assume that in my hypothetical the Mayor of New Haven is also multi-million dollar's millionaire and he's paying his taxes regularly?
John G. Hill, Jr.: Well, I think the argument Mr. Chief Justice is that --
Thurgood Marshall: You say this is rational, I want to see how rational it is? How can it be rational when a man can never change his resident status? What's rational about that?
John G. Hill, Jr.: What's rational is that the state is seeking to support higher education and it in effect divides the students into two classes, out of state and in-state and it does say --
Thurgood Marshall: I respectfully disagree. It draws a line between people who are outside of the state and people inside of the state. I'm talking about the one who becomes a resident, the day after he is matriculated?
John G. Hill, Jr.: Yes sir, that is correct. And if that person gives --
Thurgood Marshall: Discriminate between the person who has matriculated as resident for one day, is that right?
John G. Hill, Jr.: Yeah, while a person taking the example --
Thurgood Marshall: Against those who have been resident for years?
John G. Hill, Jr.: That is correct.
Thurgood Marshall: What rationalization is there with that?
John G. Hill, Jr.: Because the legislature wanted to draw a line, it chose to draw was this one-year residence duration. Now this is not as a --
Thurgood Marshall: Could that be rational for one year's tuition or rational for seven years of tuition?
John G. Hill, Jr.: Well, my point is Your Honor any time this person wants to us -- anytime Mayor of New Haven wants to establish residency for tuition purposes, all he has to do is withdraw from the university and that indicates that he is not in the state purely for purposes of getting state education. He then puts in his year while he is not a student, and then he can qualify and have all of the perquisites of education that the state offers. This is a way to make a differentiation between people who are out of state and in-state.
Thurgood Marshall: But your rationalization have to be year, whether he is in the state or out of the state is not a rationalization, then I can understand?
John G. Hill, Jr.: Well, let me try it a different way.
Thurgood Marshall: I can understand that for the one year he can be -- he is a non-resident for that one year?
John G. Hill, Jr.: Well -- what the statute really operates on Your Honor, if I can read the legislative intent correctly, is that there is a presumption that the person who comes into the state and attends an institution of higher education is here not to become a bona fide resident of the state, but to secure advantages and public eduction.
Thurgood Marshall: Don't you think the State of Connecticut, thinks that that's such a wonderful state and if I want to stay then?
John G. Hill, Jr.: Well, Your Honor I would hope they would think that, but I think, what I'm arguing here is what I think was the intent of the legislature in passing this Act and I think that was the design of it, not to necessarily discourage people from coming in, but saying they will not be subsidized, recently arrived students will not receive the same subsidy as those who have had been in the state for longer period of time and --
Potter Stewart: That's I think really a constitutional analysis that this might be promoted if we forget about residents and nonresidents and just the question is whether or not the state can create categories that you have just described, that a person who when he applies and has admitted to a state university in Connecticut is a nonresident, can Connecticut say that no matter whether or not, he later becomes a bona fide resident for every other purpose, nonetheless, for this purpose we categorize him as a person who has to pay higher tuition?
John G. Hill, Jr.: That is the issue, Your Honor.
Potter Stewart: That's really is, isn't it?
John G. Hill, Jr.: Yes, Your Honor, that is the issue.
Potter Stewart: And I think maybe when we talk about residents for other purposes, we get -- cloud the analysis a little bit?
John G. Hill, Jr.: Very well, and I won't talk about residents for other purpose.
Potter Stewart: No, I am just suggesting it and for me at least it helps to --
John G. Hill, Jr.: Alright then I will zone in any particular question that we have here and that is for educational purposes only. This statute does not affect any other rights of citizenship, it doesn't affect boarding, it doesn't affect the welfare. It is tied into a modest differential in tuition for out of state students, and this is the argument that I would make today that state supported education does not fall in the same category and I think there's been a whole line of cases that I have cited in my brief that recognizes this and I would urge that the Court in analyzing this factual situation, judge it by the rational basis test and I think this is an -- there are a whole number of statutes across the country on this basis, amicus brief is one of them, in particular from the state of Washington. It allows each state to meet its own educational situation in its own way. It lets each state be free to experiment with this type of statute. Many of them say you can't -- that once an out of state, always an out of state as long as you are taking less than say 6 or 9 or more than 6 or 9 credits at the institution. Again, it's an attempt to differentiate between those who are coming in for educational purposes and those who are really exercising their right to travel and it is admittedly an imperfect method of discrimination in the statute. Almost any type of classification has its imperfections. I would argue that this statute is not so imperfect as to fail to satisfy the rational basis test. I have cited in the brief the expenses of education, the number of out of states students that are in Connecticut, the affect that this will have on the burgeoning state budget in education. And I would urge the Court to consider it in that context because that's really the context we are talking about. How are the states going to finance there systems of higher education? I would submit that the method adopted by Connecticut which is in effect is a year durational requirement, is a reasonable approach to that very serious problem.
Byron R. White: How much, do have any idea how much of the cost of education in Connecticut public institutions apply on them, is financed by the federal government?
John G. Hill, Jr.: No, I don't Your Honor. I know --
Byron R. White: 10 %, 20%?
John G. Hill, Jr.: It varies. At the university of Connecticut, it would be higher, because --
Byron R. White: 25%?
John G. Hill, Jr.: It could well be 25%, that is correct.
Byron R. White: What about the justification of, foreclosing the federal subsidies to (Inaudible)?
John G. Hill, Jr.: Well, they would have the benefit of that subsidy at whatever -- where they qualify.
Byron R. White: (Inaudible).
John G. Hill, Jr.: I am afraid, I don't understand your question Mr. Justice.
Byron R. White: Let assume that all of the subsidy that you say is -- just assume that all of the subsidy you say that students get at the University of Connecticut were furnished by the federal government, assume that all of them?
John G. Hill, Jr.: That it all then I would have a very difficult argument I think, but that is not case --
Byron R. White: But the Columbus isn't camp of this.
John G. Hill, Jr.: I think I have figures here in my brief where I cite that even the out of state student is subsidized more than half of the cost of its education even under the --
Byron R. White: The fact that that is a perhaps federal government money?
John G. Hill, Jr.: Some of that may well be federal government money in the form of all sorts of grants, that is correct.
William H. Rehnquist: But Mr. Hill, I understand one of your or what I thought your response to Justice White's first question to be that say if a student from Colorado goes to Connecticut, the Connecticut rule may deny him the benefit of this federally subsidized Connecticut education, but presumably the state education in Colorado is also subsidized by the federal government, so this state in Colorado --
John G. Hill, Jr.: Oh, yes this was really – that was the answer. Yes, that was the answer I was trying to make that I don't mean to be fasicous, but everyone has to be somewhere and if the student -- as in this case Mrs. Kline made her application, she had a choice at that time whether she could be a resident of either Arizona or California or Connecticut. Now if she chose to go to Connecticut, I say she gets that out of state status, but she could have moved into Connecticut and applied because she was married and then she would not be faced with this present situation. This means the student himself has to make a choice before his application of what institution he is going to attend. If he is going to attend Colorado and he wants in state status, Colorado is very similar to ours. He would have to move to Colorado, establish that status and then he would receive the benefits of it. If he lived in Colorado to begin with and he wanted to go to Connecticut, he would have to pay the differential. It means the student at the time of his application has status in one particular state and is unable to change it except by moving; the mere effect of admission and one signing up to vote in a new state would not do it.
Warren E. Burger: Suppose the student went to Connecticut and enrolled in a private college, attended that college for one year maintaining his residence there of course, then he meets the eligibility standard of the Connecticut statute to move to a state university the next year?
John G. Hill, Jr.: He certainly would, Mr. Chief Justice. He would -- that's exactly my point. This is not an absolute bar to a person who is obtaining in-state status, it's a durational type of thing, it's an effort by the state to make a reasonable classification between in and out of state.
Potter Stewart: That -- you know that in hypothetical case that person might or might not if were son of parents living in Chicago who were paying all his expenses and if he is driving a car with the Chicago license plate and went back for every vacation and spent the summers back home in Illinois he wouldn't have become eligible --
John G. Hill, Jr.: Of course not, and he shouldn't.
Potter Stewart: Well, isn't that more or less a typical student at least at one side?
John G. Hill, Jr.: Oh, I don't think so today Your Honor. I think more often you will find --
Potter Stewart: Most of them have living parents and who go home for vacations and they will retain their --
John G. Hill, Jr.: Well, a good number of them don't.
Potter Stewart: Isn't it therefore a question of fact in each case, whether a person has actually become a resident of the place where he has going to college?
John G. Hill, Jr.: Under the example of the Chief Justice gave, that would be a question of fact. If this were a student who say, I went to Trinity college in Hartford and spent every summer and every vacation.
Potter Stewart: And went home for Christmas.
John G. Hill, Jr.: Right, he would not.
Potter Stewart: Consider that home back in Chicago, he wouldn't be able to be resident of Connecticut.
John G. Hill, Jr.: He would not have established the bona-fide is necessary, that's correct.
Warren E. Burger: Your response to my hypothetical, then included the proposition that in attending the Yale or some other private school in Connecticut, he had also taken all the other steps to establish legal residence?
John G. Hill, Jr.: Yes, that's correct Mr. Chief Justice.
Warren E. Burger: And probably I suppose it'd be fair to say that most of the students who come to a university like Yale do not establish a residence for other purposes?
John G. Hill, Jr.: Most of the undergraduates do not, most of the graduates students do interestingly enough. Most of them do establish a year round residence and many of them that come to Connecticut come to establish residents ahead of time, so that they can have the benefit of this in-state tuition, but as far as undergraduates go, that is correct. Most do not, most go home and so on. In conclusion, I would only urge the Court to consider that fundamental legal proposition behind this that this really I think is a case for a rational basis approach rather than the compelling state interest. I am wiling to acknowledge again with the compelling state interest gives me an obstacle which I don't think can be overcome. Under rational basis --
Potter Stewart: Has it ever been overcome in that case?
John G. Hill, Jr.: Not to my knowledge, Mr. Chief Justice.
Potter Stewart: -- where the Court begins by saying that we must find a compelling state interest, has the state ever won a case?
John G. Hill, Jr.: Not that I know off and that's why I didn't pursue that argument, I wouldn't take up the Court's time with it. Thank you.
Warren E. Burger: Thank you Mr. Hill. Mr. Dziamba.
John A. Dziamba: Mr. Chief Justice and may it please the Court. I would like to begin by responding to Mr. Justice Stewart's question and the Chief Justice's hypothetical as a student going to Yale. Under Mr. Hill's answer he said, the student would not qualify under the present Connecticut statute unless he cloaked himself with the other indicia of bona fide residents. Well, I don't think that that's an accurate response because under the present statute there is nothing he would have to do. He would not have to cloak himself of any indicia of residence. He would just merely have to show that he lived in Connecticut for one year before he applied to a State University, he would be accepted and he would be accepted as an in-state student.
Potter Stewart: Well, the statute talks in terms of legal address, legal address. Now that doesn't say domicile or residence. It maybe the student's legal address was some number in Yale station and maybe it was in some straight out Chicago, Illinois, acknowledging that.
John A. Dziamba: Yes, if that was not under the statute, Mr. Justice Stewart that would not be a factual inquiry. The student would assert his legal address is being Blocks 22 at Yale or Trinity or even if you were living in an apartment as Chapel Street in New Haven, that would be accepted, there would be no individual examination of --
Potter Stewart: But the test is legal address, whatever that may mean?
John A. Dziamba: Whatever that may mean and I assume that under the statute whatever is asserted will be accepted. The troubling part about this case is that -- I would like to put it into perspective. First of all, that we're not dealing with college students as college students, we're dealing with individuals who happen to be in a particular stage of their life afflicted with the status of being college students. What I'm trying to say is that I don't think this Court need evolved any particular and unique constitutional test for the bona fide of residence of individuals just because they happen to be students. That rational criteria exists and are easily applied in any factual situation to establish the bona fide of residency, for instance.
Potter Stewart: Connecticut says we're not interested in the test, in the ordinary conventional, traditional, legal test of domicile or residence. Instead of that we're going to make different categories. Whether or not a person later becomes a resident, we don't care. We're just going to say, we're not dealing with individuals. We're dealing with many large groups and for administrative convenience, we're just going to say that a person who when he applies to our state university, applies from outside of Connecticut, we're going to charge a higher tuition of that person, so long as he attends our state university, whether or not he ever becomes a resident or doesn't. Now that's the question in this case whether Connecticut can do that quite apart from any normal, traditional concepts of common law residence or domicile. Isn't that the question?
John A. Dziamba: No, I really don't think so, Mr. Justice Stewart.
Potter Stewart: Why not? Reading the statute, that's what it says?
John A. Dziamba: Because in the proper justifications by the state for adopting that statute, they cite two reasons. They say, the statute has to be this way, because it gives us an administratively easy way of establishing a student's domiciliary intent. That's why they say they have to have it. Secondly they say, that it allows cost equalization between those people who are contributing to the tax basis of the State of Connecticut and those that aren't.
Potter Stewart: We may make a presumption that an applicant from out of state probably has not been contributing to the tax basis of Connecticut until he -- before that time. Now that maybe a presumption in an individual case that's contrary to the fact, but the question is can they constitutionally make such a presumption?
John A. Dziamba: I don't think so, because as a result of --
Potter Stewart: As the question --
John A. Dziamba: As a result of that presumption --
Potter Stewart: Isn't that the question?
John A. Dziamba: No, I still don't think that's the question. If I may answer, as a result of that presumption a student is not allowed, an individual is not allowed to show that he is contributing to tax basis.
Potter Stewart: You're answering the question, but what I'm asking is, what is the question in this case? It's not a matter of residence or non-residence. It's a matter of can Connecticut have this particular law, constitutionally? Isn't that it, to put very simply?
John A. Dziamba: Yes, I think that maybe the issue, but I think that the reasons the state says it needs this law, and what it is trying to accomplish by having this law have to be taken into consideration. What they say is that the law allows us to determine the student's domiciliary intent and allows cost equalization. If I may set an example. Cost equalization is not contributing to its state tax basis, it's not a insurance type program. For instance, in Connecticut there are 2000 out of state students in the University of Connecticut and there is 16,000 total students. The total budget of the University of Connecticut is between 45 and 47 million dollars a year. The sales tax and use tax which are the primary sources of income in the State of Connecticut produce an annual revenue of 325 million dollars a year. The gasoline tax produces an annual revenue of $16 million a year. The cigarette tax produces an annual revenue of $60 million a year. In a recent --
Thurgood Marshall: Is gasoline tax restricted to the roads?
John A. Dziamba: As a highway tax?
Thurgood Marshall: Yeah.
John A. Dziamba: Yes, Your Honor.
Thurgood Marshall: So what's it got to do with this case?
John A. Dziamba: I'm putting into perspective merely in showing the Court that in the total operating budget, and in the amount of money that would cost inversely, one of the arguments proffered by the state and also in terms of cost equalization, anyone who is in Connecticut, who is either driving a car or buying merchandised is in fact contributing to the cost and to the tax basis --
Potter Stewart: Mr. Dziamba, do you attack the basic constitutional right of the state of Connecticut's universities and colleges to charge a higher tuition to bona fide non-residents and they do the bona fide residents?
John A. Dziamba: No, Mr. Justice Stewart.
Potter Stewart: Well then, that's all it's about, because the bona fide a non-resident certainly while he is in the state uses the roads and pays gasoline taxes and so on. But I didn't think you were making that attack?
John A. Dziamba: No I'm not. But I think the attack is this. Mrs. Kline for instance who is originally the named appellee in the case did not come into the state primarily for education. It was incidental and as a result of that incidental, she is being penalized to the extent, that she has to pay for the rest of the remainder at the university, she must pay twice the tuition. What we're attacking is that the state has the right to adopt the differential between those who are bona fide residents and those who are not. It's freezing in that status that we say violates very fundamental constitutional rights.
Harry A. Blackmun: Mr. Dziamba would you concede that the State of Connecticut could restrict its state supported institutions to residents of the state?
John A. Dziamba: Are you indicating citizens, bona fide residents?
Harry A. Blackmun: No, not necessarily, residents of the state?
John A. Dziamba: I think that's a very difficult question and the one that is first of all not presented by the facts of this case and I think that it would have to be analyzed in terms of the standards already set down by this Court and that is, the state may have a special public interest it wants to protect, but as the amicus points out in its table one a lot of that money comes from federal funds -- that would have to be a clear showing, I think in the record first of all, as to what evil the state is trying to protect itself against by limiting a state benefit only to residents of that state.
Potter Stewart: It might not be wanting to protect itself against any evil, it's just what purpose is the state trying to accomplish and that would be very obvious. It's trying to give a higher education to its residents, being a sovereign state?
John A. Dziamba: But it's the determination of who is a resident, which is a --
Potter Stewart: No, that's quite a different question. That's a wholly different question from the one Justice Blackmun asked you?
William H. Rehnquist: Mr. Dziamba?
John A. Dziamba: Yes sir.
William H. Rehnquist: The classical case of the legislature is saying, from the existence of fact 'a' the existence of fact 'b' will be conclusively presumed and when you're discussing the constitutionality of that you don't discuss necessarily fact 'b' or the relation between fact 'b' and fact 'a' you discuss whether or not the legislature can properly require the existence of fact 'a' because it's said that one file is from the other. I mean, that's more or less what I think what Justice Stewart is saying?
John A. Dziamba: Well, I think that the legislative presumption that has no basis of fact is one that would not be allowed.
William H. Rehnquist: No, but you're there -- you meet that by saying what the legislature has in fact required is unconstitutional. The particular line Connecticut is drawn here is unconstitutional and it doesn't necessarily -- wouldn't necessarily turn I would think on other notions of residency?
John A. Dziamba: Well, I again come back to responding to Mr. Justice Stewart's question, but I think that that is the point. I think that the statute has to be analyzed not only in what it said, but in the proffered purposes.
Thurgood Marshall: Well, getting back to the whether or not, they have to admit, or whether they could exclude nonresidents. Suppose Connecticut said, the university is open only to residents of the state of Connecticut and I am a resident of the State of Hawaii and they refused to admit me, now what constitutional right would I assert?
John A. Dziamba: Well, I think first of all, Mr. Justice Marshall, those are not the facts presented in this case, but the question then would be first of all how do you establish residency? How can --
Thurgood Marshall: Well, I want to know what constitutional points are you talking about? What right do I have as a nonresident to go to the University of Connecticut?
John A. Dziamba: As a nonresident?
Thurgood Marshall: Yes, sir. What constitutional --
John A. Dziamba: I think Your Honor that that is a different legislative judgment on a one made here. The legislative judgment in here is that you do have a right. Connecticut has not excluded, you do have a right, but you must pay more. Then I think is the issue; Connecticut has not gone that far and I would not attempt to assess definitively the constitution opinions going that far.
Thurgood Marshall: Then you agree that maybe Connecticut could do that?
John A. Dziamba: I would not say, I said that you'd have to look at the circumstances, at the amount of discrimination against whom they were trying to keep out, why. The Federal Government has recognized that education is a large problem shared by all of the states. I think these are all considerations that this Court has used in other types of situations and I think that they would be employed to assess the constitutionality of the statute.
Thurgood Marshall: You say that this regulation is unreasonable. What is your point, the present regulation?
John A. Dziamba: The present regulation is unreasonable in that it does not allow change in status.
Warren E. Burger: But if Connecticut could exclude all people, except its own residents, in other words did not follow that it can allow nonresidents to come in on any terms that Connecticut wants to establish?
John A. Dziamba: I think Mr Chief Justice that --
Warren E. Burger: You don't seriously question to Connecticut could exclude all nonresidents from attendance on any terms, do you?
John A. Dziamba: I think Mr. Chief Justice the question is how do you determine residents, and is that determination irrational?
Warren E. Burger: Well, that's a factual question. That's our difficulty with this argument when they factor it with the constitutional principle, you do concede that Connecticut could say we are going to run our institutions of higher learning only for the people who live here?
John A. Dziamba: No I don't concede that.
Warren E. Burger: Oh! You don't?
John A. Dziamba: No, I don't. I say that that has to be examined on a particular basis in the record of Connecticut would put forth why they need that particular exclusion?
Warren E. Burger: What provision of the constitution would prohibit Connecticut from excluding all nonresidents?
John A. Dziamba: I think that the privileges in the Immunities Clause would prohibit them from excluding all nonresidents unless they show -- unless they could show particular reason why, and substantiate it on the basis in fact on the record. I think the issue in this case is how do you establish residency, how do you define residency, and is that a rational definition of residency, and then how do you establish that residency. I think that what happened in this case, since the invalidation of the statute by the lower court is very instructive and that is that Connecticut has adopted adequate criteria and as they say that each case -- they say that each case is a question of domicile, the present standard that they have. Now each case must be decided on its own particular facts in that in reviewing a claim for reclassification.
Potter Stewart: That is the standard, that's the new standard --
John A. Dziamba: The new standard.
Potter Stewart: -- since the decision --
John A. Dziamba: Since the decision.
Potter Stewart: -- of a district court.
John A. Dziamba: Of the district court.
Potter Stewart: Right. That's the Attorney General's opinion.
John A. Dziamba: The Attorney General opinion, yes, and that's a relevant criteria for determining that status in-state or out of state, resident or nonresident a or b, include year on residents, voter registration, place of filling tax returns, property ownership, driver's license, Connecticut registration, marital status, vacation and employment plan and not only the present system, a student comes in and fills out and affidavit, you may ask him, what is your parent's address, who has custody of you if your parents are separated, what is your age, what is your address, what is your marital status, all high schools and colleges that you have attended with their addresses, military service, periods and other service, voter registration, driver's license, automobile registration, and provides that falsification for this to be grounds for expulsion. And I think Mr. Justice Stewart in all candor, that this is the objective of the state. It's not to say only for state residents or only for Connecticut residents but is to determine who is a bona fide resident of the state and I think this point is borne out by the appellants on brief by stating again that the reason that this particular irrebuttable presumption is adopted, is to allow the state to have facility in determining the student's domiciliary intent and to affect some type of cost equalization between those people who are contributing to tax basis in this or not. Out position is that there is no reason for such a drastic, irrebuttable presumption and adequate criteria exists. This Court has well recognized and not limited merely to the issues of voting or welfare but that this is the objective of the state, we must take the state at its words and this is the objective of the state then it must pursue rational criteria to do that.
William H. Rehnquist: But when you have an irrebuttable presumption you are no longer dealing with a method of proving something else. You are dealing with something that is itself a substantive requirement, don't you? I mean, Connecticut hasn't say that what we really interested here is residence, but we are going to require to be proved in a certain way. As Justice Stewart has indicated, it is said that whatever residence may mean for other things, the requirement to get into Connecticut Universities and pay in-state tuition are A, B, C, and those are themselves substantive requirements?
John A. Dziamba: Yes, when I think that those requirements are unconstitutional that in that they affect a penalty on the right to travel. I think that that's a proper analysis.
Lewis F. Powell, Jr.: May I ask a question in that connection? Your brief contends that constitutional analysis is based as your last statement indicates on a restriction on the right to travel. You have agreed that a state may charge a higher fee for a person entering the state for the first time to attend its University then to one, a person who has lived there say all his life.
John A. Dziamba: If that person, excuse me, if that person does not intend to become a resident per se, bona fide nonresident, yes.
Lewis F. Powell, Jr.: So let's assume for the moment a bona fide nonresident, but the day arrives is confronted by a very wide differential in fee, say 5 times as high, the day he arrives, he says I want to become a citizen of Connecticut from there on.
John A. Dziamba: A resident.
Lewis F. Powell, Jr.: A resident, yes. So while his right to travel is concerned, would that not be restricted perhaps not as great as you suggest in this case, but nevertheless there would be a substantial restriction on his right to travel, even though he said I do want to become a citizen and --
John A. Dziamba: Then I think that the individual increase and one that's going to bring out this --
Lewis F. Powell, Jr.: But you come back basically to whether or not there is a restriction on the right to travel, that's your constitutional basis?
John A. Dziamba: Yes. I think there is a restriction on the right to travel for those citizens who also finds students, those bona fide residents of the state of Connecticut. I think that a student who comes into a Connecticut and says I don't care about your state, I don't care about remaining in the state, I want the benefit of the tuition and therefore I declare myself a Connecticut resident. I think that presents a vastly different -- I think the right to travel is one which is always been recently I would say, connected with establishing bona fide domicile, a new start, a new life, a life with one's husband as Mrs. Kline did in this case. Her husband was a life long resident of the state of Connecticut.
Thurgood Marshall: But Connecticut says, you can do everything, including becoming the Mayor of Hartford. They don't need to fail in any of that, that's what Connecticut says?
John A. Dziamba: Well I think --
Thurgood Marshall: You can become a resident and you get a right to vote and a right to run for public office and incidentally a right to pay taxes, you get all those rights.
John A. Dziamba: And you don't get any reduction in that obligation either.
Thurgood Marshall: I don't see whether your argument covers that. He gets all of the rights except this one?
John A. Dziamba: Well, he is also bearing all of the burdens, in that is he doesn't get a reduction in his sales and use tax.
Thurgood Marshall: Well Connecticut interferes with my right to travel at least twice a year, I have pay gasoline tax when I go through there, but I mean that's --
John A. Dziamba: Well, that is going through that is not staying there and live.
Thurgood Marshall: Well I stay there sometimes?
John A. Dziamba: But you do not consider Connecticut your home.
Thurgood Marshall: I am wondering about that you are putting all of your eggs in the right to travel basket, that is what I am worried about?
John A. Dziamba: No I thank you to statute is in firm even under rational basis test, given the proffered purposes by the State.
Thurgood Marshall: Well, are you going to get to the unreasonable and the irrational point any time in your argument?
John A. Dziamba: I thought I covered that Mr. Justice Marshall by saying that the state has put forth the reasons why. It needs this particular restriction.
Thurgood Marshall: That's the states interest point but what is the unreasonable point?
John A. Dziamba: The unreasonable point I think you said there is no way of establishing residency for a particular purpose and I think that, that is unreasonable that if you are bona fide resident of state Connecticut for any and all purposes and you are paying all the benefits, you are paying all the burdens of taxation, why that particular benefit, why not exclude you from the hospitals, why not exclude you from this state highways, why not exclude you from the public libraries? I think the state has to show a rational reason why they want to exclude a bona fide, a new bona fide resident from that particular state benefit and I do not think the state is sustained that burden here. Thank you Mr. Chief Justice.
Warren E. Burger: Mr. Hill, do you have anything further?
John G. Hill, Jr.: I will just make one brief comment Your Honor and it is really I am not re-arguing the legal points in this, I think some of the questions pointed out some of the seriousness of this problem and the affects of it. If the states are not allowed some latitude, I fear it might very well happen is that each state might adopt such stringent prohibitions or restrictions on admission of out State students that they may very well lose the heterogeneity of a university which it really requires and I think this is just a policy issue that I would bring to the Court's attention.
Thurgood Marshall: (Inaudible)
John G. Hill, Jr.: I do not think any has exactly the same but.
Thurgood Marshall: (Inaudible)
John G. Hill, Jr.: I think most state do have durational requirements Mr. Justice. They do not have them fit specifically like Connecticut. If you will look at the amicus brief from the University of Washington, I think you will find there they have a one year limitation I think it --
Thurgood Marshall: (Inaudible)
John G. Hill, Jr.: It applies as long as they are taking -- the student is taking less than six credits at the state institution.
Thurgood Marshall: (Inaudible)
John G. Hill, Jr.: North Carolina has it, Arizona has it, the Nebraska has it, I cited the Nebraska in my brief, California has it, your Starns versus Malkerson, Minnesota has it. I think most of the States have a durational requirement of one --
Thurgood Marshall: Those are the states have statute –-
John G. Hill, Jr.: It can never be changed as long as the student is in attendance at the institution and taking a certain number of credits.
Byron R. White: (Voice Overlap) Starns situation, was it?
John G. Hill, Jr.: Yes, Your Honor I think it was. I think in the University of Minnesota as long they are taking less than six credits, they cannot establish residence. I maybe wrong, I am quite sure that is the case in the Washington.
Byron R. White: Let us suppose a family moves to Connecticut. They have two children one of them applied to University of Connecticut before they moved there and he was admitted. The family moves with him to Connecticut. Their second child is in senior high school. So this -- the older child that goes in the University of Connecticut is charged the out of state fee for four years I take it, he has to under the law. The student who goes to high school, the family lives there and he enters the next year. He pays in state fee, right?
John G. Hill, Jr.: That is correct.
Byron R. White: Now tell me that what is the explanation between those two just under the Equal Protection Clause?
John G. Hill, Jr.: You have put your finger specifically on the part of the statute where there are problems raised. This is the specific type of things where there is a hardships and I recognize this in my brief.
Byron R. White: Everything --
John G. Hill, Jr.: Any classification you have --
Byron R. White: But how about the constitutionality?
John G. Hill, Jr.: I think its constitutional on the ground that this is a reasonable method for classification. Any type of classification is going to bring up fringe cases where there are hardships. I don't know how this can be avoided and you picked up one that is occurred to me and it hasn't to come up practically, but it occurs to me this is a hardship, but I think this is true with any type of classification, I cannot think of one.
Byron R. White: Well this is a, the one in this case is a woman who is married to a Connecticut man, is that right? And he pays instate fees and she pays out of state fees no matter how long she lives there?
John G. Hill, Jr.: She would have had no hardship except she was caught while a law was in period of flex. All that the client had to do is move to Connecticut and she could apply and she would have granted in-state status. There is no problem there. She was caught because the time when she first applied, the Act was still pending. That is the only reason why Mrs. Kline was in trouble.
Potter Stewart: Though she applied as a single woman, from out of state and then almost very soon they are after marriage moved to Connecticut?
John G. Hill, Jr.: That's correct.
Potter Stewart: In fact it is a very similar case to Justice White's hypothetical case?
John G. Hill, Jr.: But had she married before moving to Connecticut that would have been no problem. She would have been admitted, no problem Your Honor. But I do recognize the worth of your example, this is one of the hardships I acknowledge it --
Byron R. White: But the woman who married the other couple who were married before they move there, that woman gets in-state fees, right?
John G. Hill, Jr.: I am sorry Your Honor. The woman who --
Byron R. White: Mrs. Linus (ph) does not get in-state tuition because she applied as a single woman, is it that?
John G. Hill, Jr.: No, no, no.
Byron R. White: Because she applied as a single woman?
John G. Hill, Jr.: No this is what interesting Your Honor. She attended the University of California as a state resident and presumably could have continued to do so, but she chose to go to Connecticut. This was the point I was trying to respond I think to yours and to Justice Rehnquist's question. Everybody has to be somewhere. She was a resident of California at that time and I think she was then given that status.
Byron R. White: But if she had married and moved to Connecticut before she applied --
John G. Hill, Jr.: She would have been alright.
Byron R. White: Been there one day.
John G. Hill, Jr.: That is correct.
Byron R. White: But she applied from out of state.
John G. Hill, Jr.: That is correct, but you see --
Byron R. White: That is --
John G. Hill, Jr.: Well, that is not so bad you see if you stopped to think. She could have applied, no Your Honor please, she could have applied to seven or eight state institutions and then wait and then said well I think I will go to this one and then come in and try to establish in-state status. This statute prevents that type of situation.
Warren E. Burger: I suppose your answer in part is that it is like paying your income tax one day late that and you get a penalty for it because of the arbitrary classifications.
John G. Hill, Jr.: All classifications have to be drawn at some point on the either side of that you are going to find the health situations. I thank the Court.
Warren E. Burger: Thank you gentlemen. The case is submitted.