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Abstract

It is common practice for public universities to impose durational residency requirements on students for tuition purposes. Of course, out-of-state students complain about the practice, which usually involves higher tuition rates for at least their first year of study, but interestingly, very few scholars have directly addressed the constitutional implications of durational residency requirements in the tuition context. There is no surprise in that, however. An intellectually honest analysis of the practice reveals some real questions about its constitutionality, but the academic community relies upon the economic benefits of the practice, at least in part, to maintain fiscal integrity. Self-interest is a powerful restraint. Naturally, a number of law students have challenged the practice by writing notes or articles in other law reviews, but it seems that their conclusions have not been taken seriously, as nothing has changed. Nor is there much case law challenging durational residency requirements for tuition purposes; university students (and their parents) seem to have accepted the practice as the norm, and cases brought by those who have challenged it are often decided based on a very narrow set of facts (and thus are limited to those facts). Though courts have dealt with durational residency requirements in many contexts, often finding them unconstitutional, they have refused to extend their holdings to the tuition context, and the United States Supreme Court has never directly addressed the issue. However, since the Court's decision in Saenz v. Roe, the constitutionality of durational residency requirements in any context, including for tuition purposes, has become even more suspect. If ever there was a time to challenge the practice, it is now. The most effective strike would be made by a "perfect" plaintiffan unquestionably bona fide resident of a state-against a public university of a state that maintains an extremely strict policy of residency classification denying the plaintiff the benefit of in-state tuition because of an irrebuttable presumption of nonresident status. Were such an attack to be decided on purely legal grounds, the perfect plaintiff would almost certainly be victorious. Indeed, there are few, if any, legal doctrines or justifications that allow a state to classify its citizens differently for different purposes. Constitutional law also prohibits a state from creating a barrier to a United States citizen's right to travel or from violating a citizen's due process rights by irrebuttably presuming his nonresident status. Nevertheless, practical and political considerations probably preclude a perfect victory and perhaps any victory at all. For illustrative purposes, Part II will present background concerning Nebraska law and the University of Nebraska system. Part II will also describe the efforts of one perfect plaintiff—me—to obtain instate tuition not by "gaming the system" as many students do, but instead by unquestionably establishing a bona fide residence in Nebraska. Finally, Part II will discuss the history and development of the right to travel and some of the landmark tuition cases that have helped set the stage for the present battle. Understanding the history and development of the law in those areas is vitally important to understanding Part III. Using Nebraska as a model, Part III will evaluate the strengths and weaknesses of the legal arguments against durational residency requirements for tuition purposes, which, as already mentioned, include violations of the right to travel and due process. Part III will also discuss why those legal arguments, despite their potency, will probably fail due to practical and political considerations. Finally, Part IV will conclude with a few ideas on how to bridge the divide between the law and reality, thereby avoiding the situation where student residents feel that they are strangers in their own land.

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