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STEVEN M. v. GILHOOL

November 29, 1988

STEVEN M., et al.
v.
THOMAS K. GILHOOL, et al.



The opinion of the court was delivered by: LORD

 Introduction

 This is a class action in which the parties have filed cross-motions for summary judgment.

 The plaintiff class consists of school-age children who live in "children's institutions" *fn1" in Pennsylvania and who may be required to pay tuition to attend the public schools where they live because their parents live out-of-state. At least some members of the plaintiff class live in the institutions for extended periods of time. Pennsylvania's education law deems plaintiffs, among others, to be non-residents and on that basis permits school districts to charge tuition. Pennsylvania also requires that plaintiffs' tuition be paid, or at least guaranteed, before they are enrolled. Plaintiffs' principal argument is that a child whose parents intend for him to live in Pennsylvania indefinitely must be treated for tuition purposes as a resident of the school district where he lives, regardless of where the child's parents reside. Defendants contend that plaintiffs are not bona fide residents of the districts in which they live or of the Commonwealth, so that charging them tuition is permissible. Defendants also argue that this case is moot. I deal first with defendants' latter argument.

 Mootness

 Named plaintiff Steven M. came from New York to live in Pennsylvania in September 1986. In January 1987, he began attending public school in Central Bucks School District ("CBSD"), with his parents paying tuition for him. The complaint in this action was filed shortly thereafter and the original class was certified on November 6, 1987. *fn2" In June 1988, Steven M. returned to live with his parents in New York. Defendants assert that the case became moot when Steven M. left Pennsylvania.

 This argument is not persuasive. While Steven M. and his parents may never again have to pay tuition for him to attend Pennsylvania public schools, their past tuition payments have not been refunded. Therefore, they retain an interest in the case. See Galda v. Bloustein, 686 F.2d 159, 163 (3d Cir. 1982). Moreover, the controversy remains alive with respect to the other members of the class whom Steven M. represents. See Sosna v. Iowa, 419 U.S. 393, 401, 42 L. Ed. 2d 532, 541, 95 S. Ct. 553 (1975).

 Procedural Due Process

 The Pennsylvania Public School Code of 1949, 24 P.S. § 1-101 et seq., provides that "every child, being a resident of any school district, between the ages of six (6) and twenty-one (21) years may attend public school in his district . . . ." 24 P.S. § 13-1301. There is no requirement that resident children pay tuition. Id. Members of the class, however, may be required to pay tuition before they are allowed to enter the school on the asserted ground that they are not residents of the district. *fn3" The basis for this conclusion is 24 P.S. § 13-1302. That section provides:

 
A child shall be considered a resident of the school district in which his parents . . . reside. . . ."

 The Act thus establishes a presumption but fails to provide for a hearing or any other opportunity to rebut the presumption which therefore becomes irrebuttable.

 Defendant Central Bucks School District ("CBSD") contends that the statute does provide an opportunity for plaintiffs to establish their Pennsylvania residence. CBSD cites the last sentence of 24 P.S. § 13-1308, which states that an institutionalized child whose "legal residence is [in the opinion of the Secretary of Education] in Pennsylvania, but cannot be fixed in a particular district . . ." may have his tuition paid by the Commonwealth. However, a child can attain this status only if at the time he is admitted to the institution his parents reside in Pennsylvania and his parents later abandon him. 22 Pa. Code § 11.18(c). Plaintiffs have not been abandoned by their parents and in many cases their parents have never lived in Pennsylvania.

 CBSD also contends that plaintiffs may establish resident status under 22 Pa. Code § 13.31 and § 13.33. Those regulations permit parents of "exceptional" children to challenge the type of education provided to their children. Those regulations do not purport to allow parents to challenge the complete denial of tuition-free education based upon the presumption of non-residence in 24 P.S. § 13-1302. I hold that this failure to provide any sort of hearing denies plaintiffs procedural due process and is therefore unconstitutional.

 Vlandis v. Kline, 412 U.S. 441, 37 L. Ed. 2d 63, 93 S. Ct. 2230 (1973) is squarely on point. In that case, two University of Connecticut students sued in the United States District Court for the District of Connecticut, alleging that they were bona fide Connecticut residents and challenging the constitutionality of a Connecticut statute, under which they were permanently and irrebuttably classified as nonresidents for the purpose of determining their tuition and fees. Specifically, the Connecticut statute provided that an unmarried student is a nonresident if his legal address was outside of Connecticut for any part of the 1-year period immediately preceding his application for admission, and that a married student is a nonresident if his legal address was outside of Connecticut at the time of his application for admission. A three-judge court found that both students were bona fide ...


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