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West v. Bowers

October 27, 1972

WEST ET AL, PETITIONERS,
v.
BOWERS, RESPONDENT



Petition for Review of the Determination of the Oregon State University Campus Residency Committee.

James C. Tait, Oregon City, argued the cause for petitioners. With him on the brief were John C. Caldwell and Hibbard, Caldwell, Canning & Schultz, Oregon City.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Schwab, Chief Judge, and Foley, Judge. Fort, Judge, specially concurring.

Schwab

Petitioner, an Oregon State University student, seeks review of a decision of the Oregon State University Residency Classification Officer denying her request that her classification be changed from nonresident to resident for purposes of computing the tuition she was to pay.

The tuition and fees schedules for Oregon's public colleges and universities provide that students who are residents of Oregon pay lower rates than students who are not residents of Oregon. The terms, "resident student," and "nonresident student," are defined in Administrative Rules*fn1 of the State Board of Higher Education, which has general authority over Oregon's public colleges and universities, ORS 351.060; see, generally, ORS ch 351 and ORS ch 352. The rules prescribe standards to be used in determining the residence of entering students. The rules further provide standards to be used and procedures to be followed when students claim that their status has changed, e.g., from nonresident to resident.

Petitioner challenges these Administrative Rules on constitutional grounds. Alternatively, petitioner contends the denial of her requested change to resident status is not supported by the evidence.

Under the Administrative Rules, the residence classification of a student is first determined when he enters an Oregon college or university. Stated briefly and generally, a student is classified as resident if he is emancipated*fn2 and domiciled in Oregon, or is unemancipated and his parents are domiciled in Oregon. Conversely, a student is classified as nonresident if he is emancipated and is domiciled outside Oregon, or is unemancipated and his parents are domiciled outside Oregon.

It is apparent that the principal question to be determined in applying these rules is the state of a student's domicile or his family's domicile. See, n 1, supra. The rules provide standards for this de termination:

"A student's parent or legal guardian, or an unemancipated student, will be deemed to have established an Oregon domicile if he establishes and maintains a bona fide fixed and permanent residence in Oregon, with no intention of changing such residence to a place outside the State of Oregon when the school period expires. Factors that will be considered in determining if an Oregon domicile has been established are: abandonment of previous domicile, rental or purchase of a home, presence of family, presence of household goods, length of time in state, nature and permanence of employment, sources of financial support, ownership of

property, place of voting, and payment of Oregon personal income taxes." AR 30.125(1).

The Administrative Rules further provide that a student's classification can be changed from nonresident to resident, or from resident to nonresident while attending an Oregon college or university. For example, in the case of an unemancipated student this could happen if his parents moved to Oregon (classification then changed to resident), or moved out of Oregon (classification then changed to nonresident). The same standards used to make the initial determination of domicile are used to evaluate whether there has been a change of domicile.

Petitioner was reared in Whittier, California, where she attended high school, graduating in 1968. During the 1968-69 and 1969-70 academic years she attended a junior college in Whittier, California. She moved to Oregon and began attending Oregon State University at the beginning of the 1970-71 academic year. Based on the information she supplied Oregon State University, she was then classified as a nonresident student, presumably based on a determination that she was an unemancipated student with the domicile of her parents, i.e., California. This first classification is not here questioned.

After completing one year at Oregon State University, during the summer of 1971 she applied for reclassification as a resident student. University officials asked her to fill out a "Residence Information Affidavit," which is a form used in the Oregon higher education system in passing on residency reclassification requests. Petitioner refused to complete the form. About October 21, 1971, university officials denied the request for change of classification to resident student.

Petitioner then requested and, on December 8, 1971, was granted, notwithstanding her failure to file the affidavit, a hearing before the Oregon State University Residency Classification Officer. The following evidence was presented at the hearing. Petitioner has lived in Oregon continuously since entering Oregon State University in the fall of 1970. The record is not clear exactly where she has lived since moving to Oregon. There is some indication that petitioner has been living with her uncle, a resident of Oregon City; in any event, petitioner had listed her uncle's address as her own, and Oregon State University sent mail to her at that address.*fn3 In March 1971, petitioner obtained an Oregon driver's license, on which her address was stated to be her uncle's Oregon City residence. Her uncle testified that petitioner's car was registered in Oregon. In July 1971, petitioner registered to vote in Oregon City, again listing her uncle's address as her own.

At the time of the hearing petitioner's parents were living in California, but were about to move to North Carolina. In May 1971, petitioner's uncle was appointed her guardian. Her parents continued to provide all financial support for petitioner.*fn4

The Oregon State University Residency Classification Officer ruled that petitioner had not established

she was entitled to her requested change to resident status in an opinion that concluded:

"1. A major factor in creating the guardianship was to avoid non-resident fees and tuition. While it was stated that this was not the primary purpose, there was no other bona fide purpose offered * * *. To hold that any legally created guardianship, regardless of its purpose, is automatically sufficient to establish residency for tuition purposes ...


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