We often discuss concerns about equal treatment here. In an array of circumstances we’ve discussed whether some categories of people are being treated less well than others and, if they are, if that’s okay. In the language of US Constitutional law, this is the stuff of equal protection.
Here’s a story about a series of recent equal protection cases that I think offer a good illustration of how equal protection actually works. In addition, while the laws involved are a little far afield, they do tie back to things we’ve talked about. All of which is to say, I think it’s worth taking a few moments to think about this.
It seems that a number of states have recently enacted laws that put restrictions on who can qualify for in-state tuition at state universities. In order to qualify you must satisfy specified residency requirements and you must establish that your parents are (or were?) in the country legally. The idea here, I believe, is to minimize the incentives a person might have to come to this country illegally. The incentive is diminished because that person knows that, even if their child is born here, their child will not be able to get in-state tuition.
There are some students who were born in the US to parents who were not legally in the US. These students are US citizens. And even though they meet state residency requirements, they will not qualify for in-state tuition under these laws.
To set up the equal protection challenge, you put two groups side-by-side. Both groups are US citizens who meet state residency requirements. The difference is students in one group can prove that their parents are legally in the US and students in the other cannot. The students in the former group are treated better (given in-state tuition) than those in the latter. The state must justify this differential treatment.
There’s a key question, too, in how closely a court is going to exam the state’s justification. And here the state’s hit a problem. The students in the second group–children of illegal immigrants–didn’t have any control over their parents’ actions. They are being disadvantaged because of a characteristic that is fixed by the actions of others.
Not so long ago there was a string of cases rejecting differential treatment for children of unmarried parents–what were commonly called illegitimate children. There, too, the courts said the marital status of the parents was beyond the children’s control and so it was problematic when the parents’ choice became the basis for discrimination against the child. It’s pretty close to the same problem here–and as a result, I think most courts will look at these new statutes rather closely.
Which brings us back to the state’s justification. It’s easy to justify the residency requirement–the state wants to reserve the benefits of subsidized tuition for it’s own residents. But the children in the disadvantaged group meet that requirement. Perhaps you want to affect the behavior of the parents–or perhaps you just want to punish the parents. But the illegitimacy cases suggest that you cannot do that by punishing the blameless child. One lawyer sums it up this way:
Here is a citizen being denied rights and privileges because of who her parent is,” Mr. Shalom said. “We think that’s decidedly un-American.”
In the end, it’s not surprising that the state’s aren’t meeting with any success in defending this new tuition eligibility scheme. It seems to be a pretty clear violation of some simple rules that are well-established and well-accepted. Each person is to be judged on their own actions and not the actions of her or his parents.
There is a way in which all of this might connect more directly to our topics here. In some states, there are two bodies of parentage law–one for children conceived via ART and another for children conceived via intercourse. Obviously a child has no control over the parents’ choice as to manner of conception. So do we have an equal protection problem there? I know that some of you have raised this in the past (and I’ve said a little about it.) I think it is a fair question to ask–particularly after you think about the tuition rules.
That said, I won’t try to answer it now–I’m at seven hundred words and that’s long enough for one post. It’s actually a tricky question that requires a long answer. Maybe that’s my homework for over the weekend.