applicant or recipient who is convicted of any of the following offenses may be deemed to lack satisfactory character and be denied any or all forms of financial assistance by the Agency:
"(1) A criminal offense which under the laws of the United States or any state constitutes a felony.
"(2) A criminal offense which under the laws of the Commonwealth of Pennsylvania constitutes murder of the first degree, felony of the first degree, felony of the second degree, felony of the third degree, misdemeanor of the first degree, misdemeanor of the second degree, and misdemeanor of the third degree.
"(3) A violation of section 13 of the Controlled Substance, Drug, Device and Cosmetic Act, act of April 14, 1972, No. 64 (35 P.S. § 780-113), except subsection (31) thereof." 22 Pa. Code 121.6.
If an applicant responds on the loan guaranty or grant application form that he has not been convicted of a crime, PHEAA presumes that his character is satisfactory and makes no further inquiry. If, however, the applicant answers that he has been convicted of a crime, the agency sends him a crime inquiry form on which the applicant must list the dates of arrest and conviction, the specific charges of which he was convicted, the penalty imposed, the length of time of incarceration or parole, and the name and address of the court in which he was sentenced. Additionally, any applicant still on parole must attach a letter of reference from the parole officer.
The felon's application is first considered by an agency staff person. If this initial determination is that the applicant is of unsatisfactory character, he is so informed and advised that he may appeal the decision. If he decides to appeal, he must submit additional information concerning the circumstances of his arrest and conviction. The appeal process encompasses several stages. First, the decision is reviewed by the Administrative Review Committee, composed of staff personnel selected by PHEAA's Executive Director. If still aggrieved, the applicant may appeal to the Committee on Appeals, a subcommittee of PHEAA's Board of Directors. Next the student has the right to appeal to the full Board of Directors which appoints a hearing examiner to take testimony and make recommendations to the Board for final decision. If dissatisfied with the agency's final determination, the applicant may appeal to the Commonwealth Court of Pennsylvania. See 22 Pa. Code §§ 121.7, 121.8.
Plaintiffs argue that the state's discrimination against felons may not stand because the felon classification bears no substantial, or even rational, relationship to any legitimate state purpose; because the classification is both over- and under-inclusive; and because PHEAA administers the act arbitrarily and capriciously. We shall consider these claims in turn.
We begin our analysis by rejecting plaintiffs' attempt to subject the state's system to the "strict scrutiny" standard of review. That standard is applied to state legislation which either infringes a "fundamental" interest or disfavors a "suspect class." See, e.g., SAN ANTONIO SCHOOL DISTRICT v. RODRIGUEZ, 411 U.S. 1, 16-17, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). Any claim here that strict scrutiny of the act and regulations is required because they bear on a fundamental constitutional right to a college education must certainly fail in light of RODRIGUEZ. In that case, the Supreme Court, while conceding the central importance of education to our society, id. at 29-30, nevertheless held that primary and secondary education are not fundamental constitutionally protected interests. While arguably no less important, certainly postsecondary education may not be deemed an interest entitled to greater recognition.
We note the additional fact that Pennsylvania has in no way disentitled felons from pursuing postsecondary educational opportunities. What the RODRIGUEZ majority observed with regard to Texas' primary and secondary educational system applies with equal force to Pennsylvania's postsecondary education financial assistance program:
"Every step leading to the establishment of the system Texas utilizes today * * * was implemented in an effort to extend public education and to improve its quality. Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution." Id. at 39.
Nor can we accept plaintiffs' claim that the act must be subjected to strict scrutiny because the felon classification is suspect. Classifications which have been held suspect include those based on race, national origin, and alienage. GRAHAM v. RICHARDSON, 403 U.S. 365, 372, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971). Each involves a condition resulting from the accident of birth over which the disadvantaged individual has no control and which has no relationship to any legitimate state purpose. The felony classification is therefore unlike these other classes and it is not surprising that courts have refused to apply the more stringent standard of review. See, e.g., UPSHAW v. McNAMARA, 435 F.2d 1188 (C.A. 1, 1970); WATSON v. CRONIN, 384 F. Supp. 652 (D.Col. 1974); BUTTS v. NICHOLS, 381 F. Supp. 573 (S.D. Iowa 1974).
Plaintiffs apparently concede that the felon classification as such is not suspect, but argue that it is actually a racial classification entitled to strict scrutiny. In support of this contention, they cite statistics demonstrating that blacks are convicted in significantly greater proportion than whites. We agree with defendants that this situation is not comparable to other racial classifications which directly disadvantage persons on the basis of race. Here the criminal defendant, black or white, has received the full protection of the Constitution before conviction. To hold the felony classification suspect on the basis of race would require us to denounce our entire system of criminal justice. This we will not do.
Therefore, we hold that, to withstand review, the state need only demonstrate that the felony classification, under the statute and the agency regulations, bears a rational relationship to a legitimate state purpose. The state cites two bases for its classification. First, it contends that the classification is reasonable because the state has only finite resources and wishes to maximize the potential gain from the available funds by providing assistance only to those students with "satisfactory character."
Second, the state argues that, as a political reality, the legislature would not establish any assistance program at all unless it contained the provisions allowing the agency to deny felons aid. We reject this second basis, since political considerations do not constitute a legitimate state purpose. If they did, it would be close to impossible to challenge any statute as violative of equal protection since the state could almost always assert that the classification was necessary for passage of the state program.
Turning to the other ground, however, we agree that the state has a rational interest in utilizing the felony classification in order to ensure that the most deserving students receive state aid. The purpose of the assistance program is best stated in 24 P.S. § 5151:
"Although the enrollments of the post-secondary institutions of higher learning of this Commonwealth and throughout the nation continue to increase at a rapid pace, and although larger numbers of the Commonwealth's children graduate from both the public and nonpublic secondary schools each year, there continues to be a tragic underdevelopment of the Commonwealth's human talent because of the inability of many needy students to finance a postsecondary educational program. The Commonwealth of Pennsylvania can achieve its full economic and social potential only if every individual has the opportunity to contribute to the full extent of his capabilities and only when the financial barriers to his economic, social and educational goals are removed. It is therefore the policy of the Legislature and the purpose of this act to establish a broad-scale State scholarship program designed to guarantee that the most able students from all sectors of the Commonwealth, the most needy students and students with the capability to successfully complete postsecondary educational programs, and deserving postsecondary students are given the opportunity to continue their program of self-improvement in an institution of higher learning of their choice."
The felony classification was not part of the act when the policy section was enacted in 1963 but was added in 1969. However, we see no inconsistency between the purposes section and those sections allowing PHEAA to deny aid to felons. While the purposes section does state that the potential of "every individual" should be maximized, it also requires that aid be extended only to "deserving" students. The act, as originally enacted, contained § 5154(a)(5) which requires that, to be eligible for assistance, the student must meet the "qualifications of 'financial need,' character and academic promise" (emphasis added). These are separate requirements. Read together with the purposes section, it is clear that the act seeks to assure the availability of financial assistance to every needy student of upstanding character. We cannot say that the character requirement is either in conflict with the purpose of the act or an impermissible requirement.
The issue thus becomes whether the legislature and the agency have made a reasonable determination in concluding that former felons are of sufficiently questionable "character" to justify placing the burden on the applicant to prove good character. We reject plaintiffs' contention that the felon classification is invalid because it does not relate to such factors as financial need, academic potential, the likelihood of completion of school, or future success. Plaintiffs' argument might have merit if the act did not contain a separate requirement of "character." But we do not agree with the interpretation of "character" implicit in plaintiffs' argument. In establishing character as a separate consideration, the legislature did not intend merely to repeat the financial need and academic promise requirements. It is therefore apparent that an applicant might be well qualified for assistance on the basis of need and promise but still be rejected because not of sufficiently acceptable character. We believe that the legislature used the term "character" in the sense of its dictionary definition:
"* * * a composite of good moral qualities typically of moral excellence and firmness blended with resolution, self-discipline, high ethics, force, and judgment * * *." Webster's Third International Dictionary.