Art. IV P & I Clause and Nonresident Tuition

[Conkle, Daniel O.]

There may be other or better explanations, but here's one, in conclusory form:  because higher education at a state university--unlike, for example, private sector economic activity--is not a "fundamental interest" for purposes of the P & I Clause.  As a result, the residency discrimination is not unconstitutional.  In this respect, the higher tuition is treated like a higher fee for a nonresident recreational hunting or fishing license.

Wherever the line is drawn, it makes some sense to apply the P & I Clause only to "fundamental" interests, because the P & I interest in interstate harmony is significantly impaired only when important individual interests are affected by the discriminatory treatment.  (Needless to say, out-of-state students tend to think that their interest should indeed be treated as fundamental and that they should be deemed entitled to the in-state tuition rate.)

Dan Conkle
* * * * * * * * * * * * * * * * * * * * * * *
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
mailto:conkle at indiana.edu
* * * * * * * * * * * * * * * * * * * * * * *


-----Original Message-----
From: Joseph R. Reisert [mailto:jrreiser at COLBY.EDU]
Sent: Monday, September 23, 2002 10:38 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: Notable Briefs

A student stumped me with the following question, so I am asking the
collective wisdom of the list for help:  Why does a state university
not violate the privileges and immunities clause (of Art IV §2) when
it charges out-of-state residents higher tuition than it charges
in-state residents?   A quick search of Lexis turned up a number of
cases relating to the procedures state universities may use to
determine who counts as a bona fide resident, but in the few cases I
looked at, the constitutionality of the underlying discrimination was
assumed, but there was no cite to an authoritative case, nor
explanation.

Thanks