Michigan Advisory Opinions October 02, 1991: AGO 6701 (October 2, 1991)

AGO 6701.

You have asked if a public Michigan university may establish criteria to determine student residency for tuition purposes. You ask the question in the context where a prospective out of state student was advised by a Michigan university that he would acquire instate residency status if he worked full time for 12 months in Michigan while attending school part time.

Pursuant to Const 1963, art 8, Secs. 5 and 6, the governing boards of the state universities have general supervision over their respective institutions and control and direction over expenditures from the institutions' funds. Board of Control of Eastern Michigan University v. Labor Mediation Board, 384 Mich 561, 563; 184 NW2d 921 (1971). This constitutional grant authorizes each board to establish resident and non-resident tuition and to determine residency for tuition purposes. Schmidt v Regents of the University of Michigan, 63 MichApp 54; 233 NW2d 855 (1975), lv den 395 Mich 771 (1975).

In Vlandis v Kline, 412 US 441; 93 S Ct 2230; 37 L Ed 2d 63 (1973), the United States Supreme Court held that a state university's application of an irrebuttable presumption that a student who was a non-resident at the time of application for admission to the university continued to be a non-resident violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In so holding, however, the Court recognized a state university's right to utilize a one-year durational residency requirement and stated, at 412 US 452-454:

[O]ur decision [should not] be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status. We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.

The State can establish such reasonable criteria for instate status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates.

A state university may require a student to demonstrate that he has established a domicile in Michigan to qualify as an instate student for tuition purposes. Hooban v. Boling, 503 F2d 648 (CA 6, 1974), cert den 421 US 920 (1975); Hauslohner v. Regents of the University of Michigan, 85 MichApp 611; 272 NW2d 154 (1978). Domicile has been defined as:

"[T]hat place where a person 'has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.' "

Henry v Henry, 362 Mich 85, 101-102; 106 NW2d 570 (1960), quoting William v. North Carolina, 325 US 226, 236; 65 S Ct 1092; 89 L Ed 1577 (1945).

A state university may also require that domicile in Michigan be established by " 'clear and convincing proof.' " Hauslohner, supra, 85 MichApp at 617.

In determining whether a student has submitted clear and convincing proof of domicile, a state university may require proof of circumstances such as continuous presence in the state during periods when not enrolled as a student; reliance upon Michigan sources for financial support; and accepting or holding a position of permanent employment in Michigan. Spielberg v Board of Regents, University of Michigan, 601 F Supp 994 (ED Mich, 1985). The university may reject evidence such as voter registration, automobile registration or the lease of living quarters, standing alone:

[B]ecause "all of these indicia of domiciliary intent are readily established by students having no intention to remain in [Michigan] beyond graduation." [Id. at 1000.]

Our office has reviewed the residency criteria established by the university involved in your inquiry. Those criteria are virtually identical to the criteria upheld by the courts in Spielberg, supra, and Hauslohner, supra. We have also been advised by university officials that in the specific situation presented in your inquiry, the student was advised that he would be assured conferral of instate residency status if he worked full time for twelve months while attending school as a part time student. University officials advised that they were willing to provide such an assurance because, in their experience, persons will not normally work and attend classes part time for a full year solely to acquire instate status for tuition purposes.

The student instead earned as many credits as would be normal for a full time student. The university was, thus, unwilling to grant instate residency status on that basis.

Working full time for twelve months while attending school as a part time student in Michigan would have assured conferral of instate status. The student was free, in the alternative, to demonstrate compliance with the totality of criteria set forth in the university's residency regulations. As noted above, similar regulations have been repeatedly upheld by the courts as constitutional. The university may deny instate residency status to a student who fails to demonstrate that he satisfies those criteria.

It is my opinion, therefore, that a public Michigan university may establish criteria to determine student residency for tuition purposes.

Frank J. Kelley

Attorney General