Plaintiffs contend that institutionalized children whose parents live out-of-district but in-state are permitted to attend school tuition-free, even if those children cannot pass the Martinez test for residency within the district. Plaintiffs argue that they should be treated the same way.
The premise of plaintiffs' argument, their interpretation of the statute, is unsound. Tuition is charged for institutionalized children whose parents live out-of-district but in-state. 24 P.S. § 13-1306. The only way in which those children are favored over plaintiffs is that Pennsylvania collects the tuition for those children from their parents' home school districts, while plaintiffs must themselves secure payment of their tuition. Compare § 13-1308 (first paragraph) with § 13-1308 (second paragraph).
This distinction between charging tuition and collecting tuition is justifiable. There is an obvious, legitimate basis for favoring children whose parents live out-of-district but in-state with respect to tuition collection. Pennsylvania can easily and reliably collect tuition from another in-state school district. See 24 P.S. § 13-1308 (first paragraph). No such easy and reliable means exists to collect tuition from an out-of-state district. Moreover, institutionalized children whose parents live out-of-district but in-state may not be residents, under the Martinez definition, of the district. But they almost certainly are residents of the Commonwealth. The same cannot be said for many plaintiffs. Pennsylvania is free to prefer its own state residents over residents of other states.
From what I have already said, I think it is clear that plaintiffs' right-to-travel argument carries them no further than does their procedural due process argument.
Steven M. and his parents have raised individual claims under the Rehabilitation Act of 1973, specifically 29 U.S.C. § 794, and the Education of the Handicapped Act, specifically 20 U.S.C. § 1412(2)(C). It appears that resolution of those statutory claims, like the resolution of Steven's constitutional claims, will require an evidentiary hearing concerning Steven's residence. For the sake of judicial economy, I will defer my discussion of the individual, statutory claims until after the residency hearing mentioned below.
Having concluded that Connecticut's irrebuttable presumption violated the due process clause, the district court in Vlandis proceeded to ascertain itself the residence of the two plaintiffs, rather than giving the state a second opportunity to do so. Kline v. Vlandis, 346 F. Supp. 526, 529 (D. Conn. 1972). The Supreme Court said nothing in its affirmance which suggests the district court's approach was improper. Based upon a review of the affidavits presented by the parties, I conclude that there is a material issue of fact concerning whether Steven M. and his parents ever intended for him to remain in CBSD indefinitely. A hearing will be scheduled to resolve that dispute.
Because Vlandis was not a class action, it provides no authority for me to determine the bona fide residence of the other members of the class. It would be unduly burdensome on the court and an unwarranted intrusion upon state prerogatives for me to do so. I will, therefore, enjoin defendants from enforcing against plaintiffs the irrebuttable presumption in 24 P.S. § 13-1302. I will further order defendants to offer to all class members an individualized opportunity to establish that they are bona fide residents of the districts in which they live, or that they were residents at some time after November 6, 1987 when the class was certified.
AND NOW, this 29th day of November, 1988, it is ORDERED that:
1. The first sentence of 24 P.S. § 13-1302 is DECLARED to be null and void so far as it applies to plaintiffs, because it violates the Due Process Clause of the Fourteenth Amendment.
2. Defendants are ENJOINED from denying members of the plaintiff class resident status for tuition purposes solely because plaintiffs' parents reside outside the district where plaintiffs reside.
3. Defendants are ORDERED to offer plaintiffs, other than Steven M., an opportunity to establish that they are residents of the districts in which they live, or were residents at any time since November 6, 1987.
4. As to those members of the plaintiff class, if any, whom defendants ascertain to be, or to have been, residents of a Pennsylvania school district, defendants are ORDERED to permit them to attend the local schools as residents and to refund to them any and all monies which they or their families paid as tuition during the period when they are or were residents.
5. Defendant, the Secretary of Education of the Commonwealth of Pennsylvania is ORDERED to instruct the various school districts within his jurisdiction to comply with this order.
6. A hearing will be held on the 14th day of December, 1988, at 10 a.m. o'clock, in Courtroom 17-A, United States Courthouse, 601 Market Street, Philadelphia, PA 19106, to ascertain where the residence of Steven M. was between January, 1987 and June, 1988.
AND NOW, this 29th day of November, 1988, it is ORDERED that plaintiffs' motion to amend the definition of the class is GRANTED.
IT IS FURTHER ORDERED that the class consists of all school-age youngsters who live in the "children's institutions" in Pennsylvania who, because of the operation of 24 P.S. § 1302 and § 1308, are or may be denied free public educations by the school districts in which they live.