The Right to Residency: Mobility, Tuition, and Public Higher Education Access

Abstract

AbstractThis article argues that the now-widespread US practice of residency-based tuition differentials for public higher education institutions is a twentieth-century form of higher education exceptionalism carved out in law and state policy, contradicting otherwise cherished and protected rights of free movement. This contradiction has been enabled in part by the vague standard of constitutional protection for the right to interstate mobility and in part by fiscal deference to public universities that quickly recognized the potential benefits of higher nonresident tuition rates. By both defining higher education as outside of the “necessities of life” and upholding a narrative that the children of state residents had a special entitlement to lower tuition as a kind of “legacy” taxpayer inheritance, courts, legislatures, and educational institutions built a modern higher education finance structure that discriminates against the mobility of “newcomers” and any student with a complicated family structure or residency status.