I can't see any way to do so through the constitution, but I am consistently surprised by the kinds of laws that the federal government can make, so I'm obviously not well-versed in the possibilities.
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1Discriminate in what way?– Jon CusterCommented Jul 26, 2022 at 19:42
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And many state schools will get federal funds in some way.– George WhiteCommented Jul 26, 2022 at 20:03
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6Often, they charge tuition that is significantly higher for out-of-state students– nuggetheadCommented Jul 27, 2022 at 10:24
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4@nuggethead - indeed, but those out-of-state students have not been paying in-state taxes used to support the state university. Note that non-state-supported universities don't have in- vs out-of-state tuition.– Jon CusterCommented Jul 27, 2022 at 12:39
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@JonCuster In Virginia, in-state students get discounts for private non-profit colleges, not just state schools. liberty.edu/student-financial-services/vtag based on law.lis.virginia.gov/vacode/title23.1/chapter6/section23.1-628– DavePhDCommented Jul 27, 2022 at 17:53
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3 Answers
Such a law could probably be passed under the authority of the interstate commerce clause of the Constitution. Price controls on various products have previously been justified under that clause.
answered Jul 26, 2022 at 18:12
Yes. The federal government has the authority to mandate this if it wished to do so.
Not clear if it would be a 1791 constitution privileges and immunities clause enforcement, a 14th Amendment equal protection and privileges and immunities enforcement, or an interstate commerce enforcement, but it could clearly do so.
answered Jul 26, 2022 at 18:09
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1This was the answer I thought of first, but doesn't the Interstate Commerce Clause already prohibit discriminating against out of state students? I'd imagine someone has already challenged this, so my guess is that this just satisfies whatever scrutiny we're supposed to be applying to purported violations.– bdb484Commented Jul 27, 2022 at 13:50
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3@AndrewRay That's a natural and reasonable reading of the text of the Commerce Clause, but it's not the correct one.– bdb484Commented Jul 27, 2022 at 15:39
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1@bdb484 It is correct that in giving regulatory powers to Congress, the ICC implicitly takes those powers away from the state legislatures. However, I don't think that setting tuition rates is "economic protectionism" that "burdens interstate commerce." It merely sets a price on a service rendered by the state government. The same argument would apply, for example, to state parks that charge different-rates for in-state and out-of-state residents. Commented Jul 27, 2022 at 16:17
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2@AndrewRay There have been cases challenging higher fees at state universities (and i believe at state parks) for out-of-state residents, under both Clause theories. Federal courts hae rules Equal Protection and a Dormant Commerce theory. Federal courts have ruled that such higher fees are permissible, but out-of-state students must be allowed to establish a local residence in a reasonable period and thus become eligible for the lower rates. But there were no specific federal laws prohibiting the higher rates in effect. Commented Jul 27, 2022 at 17:01
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1@AndrewRay That all sounds pretty correct, and is basically what I was trying to say in my initial comment, i.e., the ICC generally prohibits discrimination against out-of-staters, but perhaps not this kind of discrimination.– bdb484Commented Jul 27, 2022 at 18:40
It is a straightforward and not-uncommon position that the Privileges and Immunities Clause in Article IV of the U.S. Constitution already prohibits (public) universities from charging out-of-state students higher tuition. The clause reads as follows:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
As examples of law review articles arguing or discussing this point, see "Privileged for Being Stationary: Why the Practice of Differentiating Between In-State and Out-Of-State Tuition Rates are Unconstitutional" (or this link) and "On the Constitutionality of Charging In-state Tuition" and "The Right to Residency: Mobility, Tuition, and Public Higher Education Access".
Note that there is also the Privileges or Immunities Clause of the Fourteenth Amendment, as well as a presumed right to travel, that may cover this situation. These are discussed in the cited articles above.
