Md. court reviews in-state tuition; College Park graduate challenging standard for student residency


Follow the money. That is what the University of Maryland system does to decide who qualifies for in-state tuition rates, which are substantially lower than those paid by nonresidents.

But a dispute over how to decide who is an in-state student -- by determining whether the student is bankrolled by out-of-state parents -- has wound its way to the state's highest court, where a ruling against the public universities could force the Board of Regents to redraw its policy.

At stake for the university system could be the loss of the difference in tuition fees from the many students who might try to qualify as Maryland residents.

For parents who have turned increasingly to public universities, including out-of-state public universities, the difference between in-state and nonresident tuition is a hefty one. This year, for example, a Maryland resident pays $4,939 in tuition and mandatory fees, but a nonresident pays more than twice that, or $11,827, at the flagship College Park campus.

Jeremy R. Frankel, who graduated from College Park in 1998, contends that the policy presumes that anyone supported by out-of-state parents is not a Maryland resident and, unconstitutionally, does not allow that presumption to be challenged.

Now 22, he completed two years as an out-of-state student before trying to change his residency status. Frankel argued that his move at age 14 from Montgomery County to Rhode Island and then to Washington was due to his parents' divorce, that his father worked for Montgomery County, and that he returned to Maryland because he felt it was his home, even though his parents lived elsewhere.

The Board of Regents for the state's public colleges counters that its criteria of where parents live prevents out-of-state students from becoming sham residents of Maryland to gain a taxpayer-paid benefit. The regents require other residency criteria, such as holding a Maryland driver's license, living in Maryland for at least 12 months and being liable for Maryland taxes, requirements that Frankel met.

The state's goal is to not subsidize the education of people who appear to have come to Maryland only to attend college and probably will leave shortly after graduation.

The source of student income is the trump card: If the student's parents live elsewhere and the student is not self-supporting, the student is deemed a border-hopper. Anything short of that standard would be "an open invitation to fraud," the Board of Regents argued, because it would encourage students to do what Frankel did: share a local bank account with an out-of-state adult who is footing the bills. The regents won in the lower courts.

The problem is that there is no way to battle the school's presumption, Frankel's father contends.

"You cannot have an irrebuttable presumption," said David J. Frankel, who is a lawyer. "That is unconstitutional."

Last week, three of the seven judges on the Court of Appeals hammered away at what they said looked like one part of the policy overriding every other consideration.

"You are saying that if I move to Florida, my son is not going to be considered a resident of Maryland even though he hasn't lived anywhere else? Even if he has no ties to any other state?" said Judge Dale R. Cathell. "My son is going to become a nonresident if I retire to Florida?"

The answer: Yes.

"It's all where the money comes from," said Judge John C. Eldridge. "You make one factor the absolute trump."

"It's clear some of them didn't like that aspect of the policy," said Assistant Attorney General Mark J. Davis after defending it before the court last week.

A spokesman for the regents said the university system would not discuss the policy while it is in litigation.

Frankel's challenge is not unique. Around the country for more than 20 years, students have been contesting the way public colleges and universities decide who merits in-state tuition rates. Generally, they've lost, as courts have held that a state can discourage border-jumping as long as its process for deciding who is an out-of-stater allows meaningful appeals. Maryland grants in-state status to about 60 percent of students who appeal, Davis said.

Each state has its own rules forged against a backdrop of the increasing scarcity of space at the better public colleges, the greater mobility of Americans, the desirability of living in a state, fear of a brain drain and efforts to create a better-educated work force.

"It's politics and economics," said policy analyst Travis J. Reindl of the American Association of State Colleges and Universities, who noted that Maryland has one of the higher thresholds for residency. "If you are not properly tracking who is a resident, you can have a lot of answering to do in a statehouse."

Plains states tend to have less- stringent residency rules, while Michigan's and Colorado's are among the tightest, he said.

David Frankel says that wealthy out-of-staters can exploit loopholes in Maryland's policy, while his son's previous residency, family circumstances and intent to remain in the area -- Jeremy lives with relatives in Virginia -- get no consideration because residency is determined by the source of the money.

By comparison, Virginia insists that a person must be a Virginian by tax status and not enrolled in college for one year before gaining in-state status. That combination is tough for out-of-staters to overcome. A Virginian pays $10,000 less tuition at the state's flagship university in Charlottesville than a nonresident.

Virginia also requires that students not be substantially dependent on out-of-state parents.

"A lot of students do this: They drop out of school for one year and go to work," said Betty Wingfield of the University of Virginia's Committee on Virginia Status.

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