Could Idaho require students to live in Idaho for five calendar years before they could be certified for state-funded special graduate programs like WAMI medical or WICHE veterinary education?

Opinion 86-11: A five-year residency requirement for WAMI and WICHE programs failed equal protection

Plain-English summary

The State Board of Education asked whether Idaho could require students to be Idaho residents for five calendar years before they could be certified for special graduate and professional studies programs like the WAMI Regional Medical Program, the WICHE Student Exchange Programs, the Creighton dental program, the University of Utah College of Medicine, and the WOI Regional Program in Veterinary Medical Education. The Attorney General concluded that Idaho's existing one-year residency requirement for tuition under § 33-3717(2) was permissible, but the additional five-year requirement under § 33-3717(8) was not. Reading Kuhn v. Vergiels, in which a federal district court enjoined an identical Nevada five-year rule, the AG concluded the Idaho rule similarly failed equal protection's rational basis test. The five-year rule did not rationally advance the goal of supporting Idaho's economy, and once Idaho had already adopted a one-year bona fide residency test, four additional years created an impermissible distinction between bona fide residents.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Idaho Code § 33-3717(2) imposed a 12-month residency requirement on students seeking tuition-free university or college education. Subsection (8) added a separate residency requirement for special graduate and professional programs:

No applicant shall be certified or otherwise designated as a beneficiary of such special program who has not been a resident of the state of Idaho for at least five (5) calendar years previous to the application date.

Certification did not guarantee admission, but it carried significant financial assistance and was therefore a meaningful gateway to participation. The two reasons usually offered for the longer requirement were that state-funded professional programs should be limited to "legitimate long-term" residents, and that the state wanted to ensure its investment translated into in-state professionals after graduation.

The federal courts had upheld 1-, 4-, 6-, and 12-month residency requirements for tuition (Starns; Vlandis; Kelm). Equal protection analysis applied because by imposing five years on graduate-program certification, the state created two classes of resident students and distributed benefits unequally. Zobel v. Williams set the framework for that scrutiny.

What the AG concluded at the time

Kuhn v. Vergiels was directly on point

Nevada Revised Statutes 397.060(1) imposed an identical five-year residency requirement for WICHE participants. Two students with two and four years of residency, denied certification, sought a preliminary injunction. The federal district court found probable success on the merits because the five-year rule failed equal protection's rational basis test. The court said five years "appears to be a wholly unreasonable and arbitrary period of time in this context." Nevada's legislature responded by reducing the requirement to one year.

The "long-term residency" justification did not support the line at five years

The AG reasoned that once Idaho's § 33-3717 had already established a one-year bona fide residency test, the four additional years could not be defended as a way to identify "real" residents. They created a distinction between bona fide residents that lacked rational support.

The "stay in state after graduation" justification did not work either

Kuhn held that a five-year residency requirement is not rationally related to the goal of helping students who intend to remain in the state. The rule excluded students who would in fact stay, simply because they had not yet been residents long enough.

Strict scrutiny was not needed

The AG did not invoke a fundamental right (which would have triggered strict scrutiny under Shapiro v. Thompson). Rational-basis review was sufficient to invalidate the rule. The opinion cited Zobel for the framework and Kuhn for the conclusion.

A one-year requirement remained permissible

The AG drew a clear line: a one-year durational residency requirement for tuition and special program services was constitutionally permissible under both the Idaho and federal constitutions. It was the additional four years that failed.

Common questions

What about students applying from other Idaho counties versus out of state?

The opinion addressed durational residency, not in-state cross-border residency questions. Once a student met Idaho's bona fide residency test, additional in-state moves were not at issue.

Did this opinion change benefits already extended to students who met the five-year rule?

The opinion did not say that current beneficiaries were affected. It concluded the five-year requirement was unconstitutional and recommended legislative correction.

Could the legislature impose a stronger return-to-Idaho condition (like requiring graduates to practice in Idaho for a set time) instead of a long residency?

The opinion did not address such alternatives. It only concluded that the five-year residency rule, on its own, failed rational basis review. Any post-graduation practice requirement would raise its own legal questions.

Citations

• Idaho Code § 33-3717 — residency requirements for state-funded education programs.
• Fourteenth Amendment, U.S. Constitution (Equal Protection Clause).
• Kuhn v. Vergiels, 558 F.Supp. 24 (D. Nev. 1982) — preliminary injunction against identical Nevada five-year residency rule.
• Zobel v. Williams, 457 U.S. 55 (1982) — equal protection scrutiny when a state distributes benefits unequally among residents.
• Shapiro v. Thompson, 394 U.S. 618 (1969) — strict scrutiny for fundamental-right durational residency rules.
• Starns v. Malkerson; Vlandis v. Kline; Kelm v. Carlson — short-term residency requirements upheld for tuition.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP86-11.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

JIM JONES
ATTORNEY GENERAL
BOISE 83720
TELEPHONE (208) 334-2400

ATTORNEY GENERAL OPINION NO. 86-11

Mr. Charles D. McQuillen
Executive Director
State Board of Education
Len B. Jordan Bldg., Room 307
Boise, ID 83720

Per Request for Attorney General Opinion

QUESTION PRESENTED:

Is it constitutional to impose a five calendar year residency requirement on students who wish to participate in special graduate and professional studies programs offered by the State Board of Education?

CONCLUSION:

Although the state may impose a reasonable durational residency requirement for tuition purposes and for participation in higher education programs and courses, a five calendar year residency requirement is unreasonable and therefore violates the equal protection clause of the U.S. Constitution.

ANALYSIS:

Section 33-3717(2), Idaho Code, imposes a twelve (12) month residency requirement on students who wish to qualify for a tuition-free university or college education. For those students who wish to participate in special graduate and professional studies programs, an additional residency requirement is imposed.

For students who apply for special graduate and professional programs including, but not limited to the WAMI (Washington, Alaska, Montana, Idaho) Regional Medical Program, the WICHE Student Exchange Programs, Creighton University School of Dental Science, the University of Utah College of Medicine, and the Washington, Oregon, Idaho (WOI) Regional Program in Veterinary Medical Education, additional residency requirements shall be in force. No applicant shall be certified or otherwise designated as a beneficiary of such special program who has not been a resident of the state of Idaho for at least five (5) calendar years previous to the application date. (Emphasis added.)

Idaho Code § 33-3717(8). Therefore, before a prospective student can apply and be certified for one of the designated programs, he or she must first comply with the five calendar year requirement before making application. Certification does not guarantee admission for applicants to these professional programs, but does significantly enhance the likelihood for admission because of financial assistance available to those who have been certified.

Two reasons are usually cited supporting the five-year residency requirement. The first is that state-funded professional programs should be provided to "legitimate long-term" residents. See, Minutes of Idaho House Education Committee, February 2, 1979. The second is to insure that those residents who take advantage of the professional studies programs outside of the state, return to the state to practice in the profession and contribute to the state's economy. Kuhn v. Vergiels, 558 F.Supp. 24 (D.Nev. 1982).

Generally, reasonable durational residency requirements of one, four, six, and twelve months for tuition purposes in colleges and universities have been upheld by the courts. Starns v. Malkerson, 326 F.Supp. 234 (D. Minn. 1970), summarily aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), and Vlandis v. Kline, 412 U.S. 985, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). See, also, Kelm v. Carlson, 473 F.2d 1267 (6th Cir. 1973). Residency requirements of this duration are considered reasonably related to the legitimate state purpose of insuring that only bona fide residents receive the tuition-free or reduced tuition education from a state's colleges or universities. Id.

By imposing a five-year residency requirement on applicants to special graduate and professional studies programs, however, the state creates two classes of resident students and, in effect, distributes benefits unequally between one-year and five-year resident students. This unequal distribution of benefits implicates the constitutional guarantee of equal protection. "When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment." Zobel v. Williams, 457 U.S. 55, 60, 102 S.Ct. 2309, 2313, 72 L.Ed.2d 672, 678.

In Kuhn v. Vergiels, supra, Nevada's five-year residency requirement for the WICHE program was challenged in federal court. Nevada Revised Statutes (NRS) 397.060(1) imposed the requirement on student applicants for the programs. This rule was exactly the same as that now found at Idaho Code § 33-3717(8). The requirement was challenged by a two-year student and a four-year student who were denied certification for the program because they did not meet the five-year residency requirement prior to making application. In granting the two students a preliminary injunction prohibiting the enforcement of the requirement, the court found there not only was the possibility of irreparable injury, but also probable success on the merits. Id. at 26. Irreparable injury was shown because the students possibly could not attend school without WICHE certification.

The court found that the five-year requirement did not meet the traditional equal protection "rational basis" test. Zobel v. Williams, supra. (If the statute affected a fundamental constitutional right, a more stringent standard of "strict scrutiny" would have been used to review the state statute. See e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).) The court stated that the five-year requirement was not rationally related to the objective of giving assistance to students who intend to return to the state following completion of their studies. Kuhn v. Vergiels, at 27. The requirement does not fairly treat those individuals who intend to remain state residents but who have not lived in the state for the five years as required. Id. at 27-28. The Idaho statute would fail for this reason as well.

Additionally, Idaho Code § 33-3717 already establishes a one-year test for bona fide residency. The four additional years to establish "legitimate long-term" residency creates an impermissible distinction and would violate the principles enunciated by the U.S. Supreme Court in Zobel v. Williams, supra. As the court stated in Kuhn v. Vergiels at 27, "on its face five years appears to be a wholly unreasonable and arbitrary period of time in this context." The Nevada legislature immediately responded to the court's decision by adopting a one-year residency requirement for participation in these programs. NRS 397.060.

In summary, a one-year durational residency requirement for tuition and special program services in higher education is constitutionally permissible under both the Idaho and federal constitutions. However, the five-year durational requirement for participation in the special professional and graduate studies programs defined by Idaho Code § 33-3717(8) fails to meet the rational basis test set forth in Zobel v. Williams and creates an impermissible distinction between bona fide residents. Therefore, the five-year requirement is unconstitutional.

If we can be of assistance in correcting this statute, please do not hesitate to contact us.

AUTHORITIES CONSIDERED:

Constitutions
Fourteenth Amendment, U.S. Constitution
Article 1, § 2, Idaho Constitution
Article 9, § 1, Idaho Constitution

Idaho Statutes
Idaho Code § 33-3717

Other State Statutes
Nevada Revised Statutes 397.060

Cases
Kelm v. Carlson, 473 F.2d 1267 (6th Cir. 1973)
Kuhn v. Vergiels, 558 F.Supp. 24 (D.Nev. 1982)
Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969)
Starns v. Malkerson, 326 F.Supp. 234 (D. Minn. 1970), summarily aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971)
Vlandis v. Kline, 412 U.S. 985, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973)
Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982)

Other
Minutes of Idaho House of Representatives Education Committee, February 2, 1979.

DATED this 29th day of August, 1986.

JIM JONES
Attorney General
State of Idaho

Analysis by:
DANIEL G. CHADWICK
Deputy Attorney General
Intergovernmental Affairs