Can Maryland require divorced or unmarried parents to keep paying child support while their adult child is in college, without violating equal protection?

Plain-English summary

Delegate Terri Hill asked the Attorney General to review a bill she co-sponsored, House Bill 955 of the 2017 session, which would have let an equity court keep jurisdiction over a child support order so it could require a parent to help pay for a child's college or vocational training until the child turned 23, rather than support ending at 18 or 19 as under the existing "high school exception." The Maryland Judicial Conference had opposed the bill, arguing it treated similarly situated children unequally because it applied only to children whose parents were separated or divorced and only if they pursued further education.

The opinion concluded that the bill would not violate the Equal Protection Clause. It reasoned that children whose child support already fell under a court's jurisdiction were not "similarly situated," in the constitutional sense, to children whose parents supported them without court involvement, because the relevant distinction was the pre-existing role of the court, not the child's own circumstances. Even assuming the groups were similarly situated, the classification would only need to survive the most forgiving level of judicial review, rational-basis scrutiny, because it did not involve a suspect class like race or a fundamental right, and it did not turn on sex or illegitimacy. Under that standard, the opinion found Maryland's interest in supporting children's access to postsecondary education easily qualified as legitimate, and the bill's focus on parents already before the court was rationally related to that interest.

Currency note

This opinion was issued in 2017. 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.

Common questions

Did Maryland law in 2017 let courts order parents to pay for their adult child's college?
At the time, only if the parents were already subject to a child support order and a court chose to extend it to age 23 for postsecondary education, a feature of the specific bill (House Bill 955) discussed in this opinion; general child support otherwise ended around age 18 or 19 under the "high school exception."

Did the Maryland Judicial Conference think the bill was constitutional?
No. The Judicial Conference argued the bill created disproportionate treatment because it applied only to children whose parents were separated or divorced, and only to those pursuing further education. The opinion disagreed and concluded the distinction would survive a constitutional challenge.

Did the opinion say courts had to order this kind of support?
No. The opinion described the bill as giving courts discretion to order postsecondary support based on listed factors, including the parent's ability to pay; it would not have required an award in every case.

Background and statutory framework

At the time of this opinion, Maryland's age of majority was 18, but GP § 1-401(b) created a "high school exception" letting support continue until age 19 for a child still enrolled in secondary school. Maryland courts had previously held, under cases like Smith v. Smith and Rhoderick v. Rhoderick, that equity courts could order support for a child's college education until age 21, back when the age of majority itself was 21. Lowering the age of majority to 18 after the 26th Amendment eliminated that authority for most students. House Bill 955 would have restored a version of that authority for children of separated or divorced parents, but capped it at age 23 and required a pending custody or support case for the court to have jurisdiction to extend.

The opinion's equal protection analysis rested on identifying which "classes" of people the bill treated differently and what level of judicial scrutiny would apply to that distinction. Because the bill did not implicate a suspect classification like race, or a distinction based on sex or illegitimacy, the opinion applied rational-basis review, the least demanding constitutional standard, under which a classification is upheld if any conceivable legitimate government interest could support it.

Citations and references

Statutes:
- GP § 1-401(a)(2), setting the general age of majority at 18 for most purposes
- GP § 1-401(b), the "high school exception" continuing support to age 19 for a child still in secondary school

Cases:
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985), U.S. Supreme Court case describing the Equal Protection Clause's core requirement
- Nordlinger v. Hahn, 505 U.S. 1, 10 (1992), U.S. Supreme Court case on treating similarly situated persons alike
- Clark v. Jeter, 486 U.S. 456, 461 (1988), U.S. Supreme Court case setting out the levels of constitutional scrutiny
- Washington v. State, 450 Md. 319, 342 (2016), Maryland Court of Appeals case on showing differential treatment of similarly situated individuals
- Smith v. Smith, 227 Md. 355, 361 (1962), Maryland Court of Appeals case upholding an order for college contribution under the pre-1973 age of majority
- Rhoderick v. Rhoderick, 257 Md. 354, 367-68 (1970), Maryland Court of Appeals case recognizing college education as a support "necessity" in some circumstances
- Curtis v. Kline, 542 Pa. 249, 257-60 (1995), Pennsylvania Supreme Court case striking down a similar postsecondary support statute on equal protection grounds, a minority position the opinion declined to follow
- In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980), Iowa Supreme Court case upholding a postsecondary child support statute against an equal protection challenge
- Sessions v. Morales-Santana, 137 S. Ct. 1678, 1700 (2017), U.S. Supreme Court case discussed for its treatment of marital-status classifications
- Grapin v. Grapin, 450 So.2d 853, 854-55 (Fla. 1984), Florida Supreme Court case treating postsecondary support as a moral rather than legal obligation, a view the opinion distinguished

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2017/102OAG33.pdf

Original opinion text

Gen. 33] 33

               CONSTITUTIONAL LAW

EQUAL PROTECTION – FAMILY LAW – CONSTITUTIONALITY OF
REQUIRING EQUITY COURTS TO RETAIN
JURISDICTION OVER CHILD SUPPORT ORDERS
WHEN CHILD IS ATTENDING COLLEGE OR OTHER
POST-SECONDARY INSTITUTION
December 22, 2017

The Honorable Terri L. Hill, M.D.
House of Delegates of Maryland

  You have asked for our opinion on the constitutionality of

proposed legislation that would require an equity court to retain
jurisdiction over a child support order, after the child has reached
age 18 and until age 23, when the child is enrolled at an institution
that offers postsecondary education or vocational training. The
proposed measure was introduced in the 2017 session of the
General Assembly as House Bill 955. The bill, like similar bills
introduced in earlier years, failed to make it out of committee.
One of the comments on the bill stated that it would treat
similarly situated children between the ages of 18 and 23
differently depending on whether they are pursuing postsecondary
education or whether their parents live apart. Because that
comment suggested an equal protection concern, you have asked
whether the measure, if enacted, would violate the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution either by treating adult children differently depending
on whether their parents' marriage was intact, or by treating adult
children in postsecondary education differently from adult children
who are not pursuing education or vocational training after high
school. We additionally address whether the proposed bill
impermissibly treats parents differently depending on whether they
are subject to an equity court's jurisdiction in a child support
matter.
In our opinion, it would not violate the Equal Protection
Clause to give equity courts the discretion to order a parent to
support his or her child's pursuit of postsecondary education for a
limited period after the child attains the age of majority.

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                             I
                        Background

A. The Current Law on Child Support Orders, for
Educational Purposes, for Children Who Are over Age 18
and Enrolled in Secondary School
Section 1-401(a)(1) of the General Provisions Article ("GP")
provides generally that the age of majority is 18 years. Except as
otherwise provided by statute, an individual who is at least 18 years
old is an adult "for all purposes and has the same legal capacity,
rights, powers, privileges, duties, liabilities, and responsibilities
that an individual at least 21 years old had before July 1, 1973."
GP § 1-401(a)(2). Section § 1-401(b) excepts from that rule
individuals who have attained the age of 18 years and are enrolled
in secondary school. Those individuals have the right to receive
support and maintenance from both parents until age 19, unless,
before that, they die, marry, are emancipated, or graduate from or
are no longer enrolled in secondary school. GP § 1-401(b) ("high
school exception"). As applied in child support proceedings, the
age-of-majority provision means that an equity court may order the
continuation of child support past the child's 18th birthday—the
age of majority—and until the child's 19th birthday, while the child
is enrolled in secondary school or other institution where he or she
is working towards a high school diploma. See, e.g., Richardson v.
Boozer, 209 Md. App. 1, 17 (2012).
Provisions like these were enacted after 1971, when the
United States Constitution was amended to lower the voting age
from 21 to 18 and many states followed suit by lowering their
statutory age of majority. An unintended consequence of lowering
the age of majority had been that courts in some states could no
longer order child support for a child over age 18, which meant that
parents could stop supporting a child before the child had
completed high school. See, e.g., Leslie Joan Harris, Child Support
for Post-Secondary Education: Empirical and Historical
Perspectives, 29 J. Am. Acad. Matrim. Law 299, 315-16 (2017)
(discussing the effect of the 26th Amendment on child support
orders for the child's postsecondary education).
Maryland's adoption of a high school exception did not
address the loss of equity courts' discretion to order child support
for purposes of attending college or pursuing other postsecondary
education. Formerly, equity courts had held the authority to order,
as part of a child support award, the payment of college tuition until
the child turned 21. See, e.g., Smith v. Smith, 227 Md. 355, 361

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Gen. 33] 35

(1962) (upholding an order requiring the non-custodial parent to
contribute to the cost of the education of his 19-year-old son). And,
by 1970, the Court of Appeals, following "[t]he modern trend of
the appellate decisions in the United States generally," had adopted
the principle "that a college education is a necessity if the station
in life of the infant justifies a college education and the father is
financially able to pay or contribute . . . ." Rhoderick v. Rhoderick,
257 Md. 354, 367-68 (1970). The lowering of the age of majority
to 18 reversed that "modern trend." Now, under the current law,
most students are disqualified from support for any substantial
amount of time past high school.
B. The Proposed Revision of the Law
House Bill 955 would have changed the current law in two
ways. First, it would have moved the high school exception out of
the age-of-majority provision in the General Provisions Article and
into the Family Law Article, thereby narrowing its scope to family-
law proceedings. It would also have revised that exception to
explicitly require an equity court to "retain jurisdiction" over
support orders for children attending secondary school. As under
current law, the support would terminate when the child is married,
is emancipated, graduates from or is no longer enrolled in
secondary school, or turns 19.1 You have not asked us to address
this aspect of the bill.
Second, the bill would have required an equity court to retain
jurisdiction over a support order for a child who has attained the
age of 18 years and is enrolled for at least 12 credit hours per
semester (or its equivalent) at a college, university, or other
institution of postsecondary education or vocational training
(collectively, "postsecondary education"). Any support ordered
under that provision would terminate when the child marries, is
emancipated, leaves school, or reaches age 23, whichever comes
first. Although the bill would have required the equity court to
retain jurisdiction, it would not have required the equity court to
order support in any given case. Instead, the bill would have
identified the factors that equity courts must apply when
considering whether to award support for these individuals and in

1
Current law and the version in the bill differ in that current law
applies to all individuals who attain the age of 18 and are still in
secondary school, while the bill would apply only where there is a
custody or support case over which the equity court can "retain
jurisdiction," typically as a result of divorce or a paternity adjudication.

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36 [102 Op. Att'y

what amounts. The factors included the parent's ability to pay—a
factor also considered by the equity courts in Smith and Rhoderick,
when the age of majority in Maryland was 21.
As a co-sponsor of H.B. 955, you testified before the House
Judiciary Committee about the State's interest in the ability of
children to pursue postsecondary education. You cited studies that
show that students with postsecondary degrees generally qualify
for more jobs and are better able to support themselves than
students whose education stopped at the secondary level, and you
stated that the legislation would rectify the effects, on child support
orders, of the lowering of the age of majority. See 2017 Leg., Reg.
Sess., Hearing Before the House Judiciary Committee on H.B. 955
(written testimony of Del. Terri L. Hill, M.D.).
According to the Fiscal and Policy Note for H.B. 955, at least
nine states have adopted statutes that authorize equity courts to
order parents to provide post-majority child support for
postsecondary educational purposes. A tenth state requires equity
courts to order such support.2
C. Potential Constitutional Issues Raised in Comments on
House Bill 955
The Maryland Judicial Conference opposed H.B. 955. Its
memorandum to the House Judiciary Committee stated:
This legislation results in the disproportionate
treatment of children similarly situated as it
provides for child support for children up to
age 23, but only if they are pursuing post-
secondary (college/trade school) education. It
also seems to apply only to children over the
age of 18 whose parents live apart, thus
promoting inequity among children similarly
situated. The Judiciary is concerned that this
bill advocates an inconsistent standard for the
issuance of child support orders.
2017 Leg., Reg. Sess., Hearing Before the House Judiciary
Committee on H.B. 955 (written testimony of Suzanne D. Pelz, on

 The nine states that have adopted statutes similar to Maryland's are
 2

Connecticut, Illinois, Iowa, Massachusetts, New Jersey, New York,
Oregon, South Carolina, and Washington. The tenth state is Missouri.

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Gen. 33] 37

behalf of the Maryland Judicial Conference, Feb. 22, 2017). The
memorandum did not express a view on the constitutionality of the
bill. In light of the reference to "disproportionate treatment" of
"similarly situated" children, however, you asked us to review and
update our earlier advice3 on the constitutionality of postsecondary
education child support measures and to issue an opinion on the
subject.
II
Analysis
The Equal Protection Clause provides: "No State shall . . .
deny to any person within its jurisdiction the equal protection of
the laws." U.S. Const. amend. XIV, § 1. The Clause is "essentially
a direction that all persons similarly situated should be treated
alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985) (citation omitted); see also Nordlinger v. Hahn, 505 U.S. 1,
10 (1992) (The Clause "keeps governmental decisionmakers from
treating differently persons who are in all relevant respects alike.").
The Clause does not, however, "take from the States all power of
classification." Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256,
271 (1979). Instead, the constitutionality of a statutory
classification depends on which level of scrutiny applies to the
statute and whether the classification passes master under the test
for that level of scrutiny.
"At a minimum, a statutory classification must be rationally
related to a legitimate governmental purpose." Clark v. Jeter, 486
U.S. 456, 461 (1988) (citations omitted). The most exacting
scrutiny—known as "strict scrutiny"—applies to "classifications
based on race or national origin . . . and classifications affecting
fundamental rights." Id. "Between these extremes of rational basis
review and strict scrutiny lies a level of intermediate scrutiny,
which generally has been applied to discriminatory classifications
based on sex or illegitimacy." Id. So, to determine the level of
3
Letter from Kathryn M. Rowe, Assistant Attorney General, to Del.
Terri L. Hill (Mar. 6, 2017); Letter from Kathryn M. Rowe, Assistant
Attorney General, to Del. Kathleen M. Dumais (Mar. 22, 2004); Letter
from Robert A. Zarnoch, then-Assistant Attorney General, to Del. Paul
Carlson (Feb. 10, 2000); see also Letter from Richard E. Israel, Assistant
Attorney General, to then-Sen. Brian E. Frosh (Jan. 31, 2001)
(explaining that, absent statutory authorization, "a court . . . cannot order
a parent to support a healthy [adult] child").

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scrutiny that a court would apply to a given law, one must identify
"classes" of "similarly situated" people that the challenged law
treats differently. See id. (explaining that the level of scrutiny
depends on the type of classification involved); see also, e.g.,
Washington v. State, 450 Md. 319, 342 (2016) (explaining that an
equal protection claimant must first demonstrate that "the State
treated him differently from a similarly situated individual").4
You ask about the permissibility of the two types of
classification identified in the Maryland Judicial Conference's
comments about the proposed legislation: adult children between
the ages of 19 and 23 whose parents' marriage is intact versus those
children whose parents are unmarried or separated, and adult
children of that same age who are pursuing postsecondary
education versus those who are not. We will also address a third
classification—one that focuses on classes of parents, as opposed
to classes of children. We raise that issue because the people who
have challenged postsecondary education child-support measures
on equal protection grounds have usually been the parents ordered
to provide the support.
A. The Permissibility of Distinguishing Among Adult Children
Based on Their Parents' Marital Status
First, the law would differentiate between adult children who
are the subject of a child support order, and those whose parents
are either married or supporting them voluntarily without a court
order. In the discretion of the equity court, the first group would
be eligible for child support past the age of majority and until age
23, if an equity court finds that the educational requirements are
met and that the circumstances make an award appropriate under
the specified factors. By contrast, child support for the second
group would continue to fall within the discretion of the parents,
who might or might not decide to support their child past the age
of majority. The basis of the distinction between the groups is thus

 4
  Neither Maryland's Constitution nor its Declaration of Rights

contains an express equal protection clause. However, the Court of
Appeals has "recognize[d] that the concept of equal treatment is
embodied in the due process requirement of Article 24 [of the Maryland
Declaration of Rights]." Hornbeck v. Somerset County Bd. Of Educ.,
295 Md. 597, 616 n.4 (1983). Maryland courts turn to "decisions of the
Supreme Court interpreting the equal protection clause of the federal
constitution [as] persuasive authority in cases involving the equal
treatment provisions of Article 24." Id. at 640 (citations omitted).

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Gen. 33] 39

the pre-existing involvement of the equity court on the question of
parental support for the child.
The initial question is whether these two groups of adult
children are "similarly situated"—that is, are they "in all relevant
respects alike"? See Nordlinger, 505 U.S. at 10. We think not, at
least in the constitutional sense. House Bill 955, as we read it,
would merely have continued an equity court's jurisdiction over a
child support matter; it would not have created new jurisdiction
over a particular group and, thus, would not have created a new
classification. See H.B. 955, proposed Family Law § 1-201(d)(1)
and (2) (authorizing the equity court to "retain" jurisdiction for
purposes of ordering support for a child attending secondary and
postsecondary education). The circumstance of the equity court's
involvement arises under the Family Law Article in all cases in
which unmarried parents litigate child support, and it distinguishes
those children from children whose support is not a matter for the
equity court. Cf. In re Kurowski, 161 N.H. 578, 590 (2011)
(explaining that the equity court's exercise of jurisdiction in child
support matters when the parents disagree does not violate either
parent's constitutional right to direct their child's upbringing);
Johnson v. Louis, 654 N.W.2d 886, 891 (Iowa 2002) (stating that
children "whose parents never sought State involvement to
formalize or dissolve their relationships, are not similarly situated"
to children who "have had the attributes of a legally recognized
parental relationship taken from them by court decree"). In short,
children whose parents' child-support obligations are already
subject to the discretion of an equity court are not similarly situated
to children whose parents' child-support obligations continue to lie
within their own discretion.
Moreover, even if these two groups of children were deemed
to be "similarly situated,"5 the proposed extension of the equity

5
Commentators have cited studies that show that the involvement of
an equity court is not the only circumstance that would defeat the notion
that adult children of an intact marriage and adult children of divorced
or never-married parents are "similarly situated" with regard to the need
for postsecondary support. See Scott Gelber, Child Support Litigation
and the "Necessity" of American Higher Education, 1920-70, 54 Am. J.
Legal Hist. 39, 66-67 (2014) ("Nearly 90 percent of married parents
provide consistent assistance while their children attend college,
compared to less than 30 percent of divorced parents. Divorce further
complicates college access because financial aid offices often consider
the income of both parents regardless of their willingness to contribute.

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court's jurisdiction would only be subject to rational basis review.
The classification would not be based on suspect criteria, such as
race or national origin, and it would not implicate a fundamental
right, such as the right to vote, so a court would not subject it to
strict scrutiny. Further, the measure would not draw
"discriminatory classifications based on sex or illegitimacy," so it
would not be subject to intermediate scrutiny, either.6 See Clark,
486 U.S. at 461 (applying intermediate scrutiny to "discriminatory
classifications based on sex or illegitimacy"); see also Morales-
Santana, 137 S. Ct. at 1700 n.25 (citing Clark) ("Distinctions based
on parents' marital status . . . are subject to the same heightened
scrutiny as distinctions based on gender."); Gerhardt v. Estate of
Moore, 150 Wis. 2d 563, 574 (1989) (stating that, where the law
disfavored illegitimate children, "[p]rohibiting nonmarital children
involved in lump-sum child support settlements the ability to seek
additional support, not denied marital children [involved in such
settlements], amounts to a denial of the equal protection of the
law").
To meet the rational basis standard, "a statutory classification
must be rationally related to a legitimate governmental purpose."
Clark, 486 U.S. at 461 (citations omitted). When a court conducts
a rational basis review, "a statute is presumed constitutional and
will be upheld if there is 'any reasonably conceivable state of facts
that could provide a rational basis for the classification.'"
Washington, 450 Md. at 344 (quoting FCC v. Beach Commc'ns,
Inc., 508 U.S. 307, 313 (1993)).
Most courts have found that a State's interest in furthering
postsecondary education opportunities for children of divorced or
unmarried parents easily qualifies as a "legitimate governmental
purpose." See, e.g., McLeod v. Starnes, 723 S.E.2d 198, 204 (S.C.
2012) ("As can hardly be contested, the State . . . has a strong
interest in ensuring that our youth are educated such that they can
become more productive members of our society."); In re

In part because of these factors, the children of divorced parents across
all income levels are less likely to aspire towards, prepare for, and apply
to institutions of higher education.").
6
The proposed measure addresses "illegitimate" children of unwed
parents, but it affords them the same protections available to the children
of married parents. Because neither class is disadvantaged by the bill, it
would not be subject to intermediate scrutiny on that basis. See Sessions
v. Morales-Santana, 137 S. Ct. 1678, 1700 (2017) (stating that
intermediate scrutiny would apply to the "[d]isadvantageous treatment
of marital children in comparison to nonmarital children").

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Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980) ("[W]e find
the state has a legitimate interest in promoting higher education for
its citizens. [The educational support statute] is rationally related
to protecting that interest and does so in a manner that is neither
arbitrary nor unreasonable."); Childers v. Childers, 89 Wash. 2d
592, 604 (1978) ("Even if the legislation does create a
classification, it rests upon a reasonable basis. . . . The irremediable
disadvantages to children whose parents have divorced are great
enough. To minimize them, when possible, is certainly a legitimate
governmental interest."); In re Marriage of McGinley, 172 Or.
App. 717, 733-35, review denied, 332 Or. 305 (2001) (holding that
educational support statute does not violate equal protection);
Kujawinski v. Kujawinski, 71 Ill. 2d 563, 581-82 (1978) (same);
Donnelly v. Donnelly, No. FA114115477, 2012 WL 3667312,
at *5 (Conn. Super. Ct., Aug. 1, 2012) (unreported) ("The
promotion of higher education and the protections afforded to
children of divorced parents, who are less likely to receive financial
support for college education than children of intact parents, are
certainly legitimate government interests.").
Nonetheless, the Supreme Court of Pennsylvania reached a
different conclusion on the legitimacy of a state's interest in post-
majority child support for higher education. In 1995, after finding
the two groups of adult children to be "similarly situated" because
both "need[ed] funds for college education," that court questioned
"whether the legislature actually has a legitimate interest in treating
children of separated, divorced, or unmarried parents differently
than children of married parents with respect to the costs of post-
secondary education." Curtis v. Kline, 542 Pa. 249, 257-60 (1995).
The court thus framed the question to focus the inquiry on the
state's interest in unequal treatment as opposed to the state's
interest in providing educational support for adult children of
divorced or unmarried parents. The court then found "no rational
reason" why the two groups "should be treated unequally" and
found the statute unconstitutional. Id. at 260. The dissenters
focused the inquiry instead on the statutory goal of "furthering the
education of the citizens of this Commonwealth," cited studies
showing that children whose parents are not married receive less
parental support than children of intact families, and observed that
courts usually defer to legislative findings when a classification
does not merit strict scrutiny. Id. at 261-66. Noting Pennsylvania's
support of its state university system and other postsecondary
training, the dissent also stated that "[i]t cannot successfully be
argued that the state has no legitimate interest in furthering the
education of its citizens." Id. at 266.

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  Other courts have not adopted the approach taken by the

majority of the Pennsylvania court in Curtis. Indeed, that approach
is hard to square with the deferential "rational basis" standard of
review. Specifically, we do not think that a reviewing court would
question a legislative finding about the disparities in postsecondary
support for the two groups of adult children; if anything, since
1995, there have been more studies on the subject for Maryland's
Legislature to consider, and its findings would be accorded
deference. See, e.g., City of Cleburne, 473 U.S. at 440 ("When
social or economic legislation is at issue, the Equal Protection
Clause allows the States wide latitude, . . . and the Constitution
presumes that even improvident decisions will eventually be
rectified by the democratic processes." (internal citations omitted)).
Very likely, a court would find that the measure proposed by H.B.
955 is directed at a "legitimate governmental purpose."
The final step in a rational basis review is to analyze whether
the measure is "rationally related" to the legitimate governmental
purpose. That standard simply means that the government "may
not rely on a classification whose relationship to an asserted goal
is so attenuated as to render the distinction arbitrary or
irrational." City of Cleburne, 473 U.S. at 446. Here, there
is a direct relationship between the remedial goal of the
proposed legislation and its application only to parents involved in
child support cases. As noted by the McGinley court, "it is
rational to believe that children from non-intact families will
have more difficulty paying for their college education than will
children from intact families, in part because of lack of support
from divorced parents." 172 Or. App. at 727. You testified that a
goal of the statute is to help this particular disadvantaged
population overcome the disadvantages caused by the marital
status of its members' parents. 2017 Leg., Reg. Sess., Hearing
Before the House Judiciary Committee on H.B. 955 (written
testimony of Del. Terri L. Hill, M.D.). In our opinion, the
proposed measure—particularly if supported by findings—
would meet the standard set by the rational basis test.7

7
We can envision specific circumstances in which the proposed
measure's focus on retaining jurisdiction—as opposed to assuming
jurisdiction in the first instance—might mean that it does not solve the
entire problem that prompted its introduction. For example, the
proposed measure would not reach a child who turns 18 before his
parents' divorce because the equity court would not have any jurisdiction
to retain. The same gap in the equity court's jurisdiction would occur if
a child takes two years off after high school before attending college.
These gaps in the proposed measure's reach, however, would not be fatal

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  In summary, most courts have upheld laws that authorize

post-majority child support for postsecondary education. See, e.g.,
McGinley, 172 Or. App. at 734 ("[T]he state has a legitimate
interest in having an educated populace, and requiring divorced
parents to contribute to their children's education is a rational
means of furthering that interest."); see also In re Marriage of
Grittman, 730 N.W.2d 209 (Iowa 2007) (gathering cases). We
think it unlikely that a court reviewing the grant of such authority
to an equity court in Maryland would invalidate the proposed
measure on a theory that it impermissibly discriminates against
adult children of intact marriages.
B. The Permissibility of Distinguishing Among Adult Children
Based on Whether They Are Pursuing Postsecondary
Education or Training
The measure would also seemingly treat differently two
groups of adult children under age 23 who are the subject of a child
support order—on the one hand, those who are pursuing
postsecondary education and, on the other, those who are not
pursuing training or education past the secondary level. The former
group would remain under the equity court's jurisdiction and
qualify for child support; the latter would not. The proposed
differentiation does not draw distinctions based on suspect factors
of race, national origin, or on factors involving fundamental rights.
The law thus would not involve a protected class for whom a less-
favored treatment would trigger strict scrutiny. The law also does
not distinguish on the base of sex or illegitimacy, so it would not
even be subject to intermediate scrutiny. Instead, the "rational
basis" level of scrutiny would apply, and so the inquiry would
again be whether the distinction was "rationally related to any
legitimate state interest." Washington, 450 Md. at 342.
As discussed above, we have little doubt about the legitimacy
of the State's interest in furthering the pursuit of postsecondary
education by children whose child support falls within the
jurisdiction of an equity court. Further, the distinction between
these two groups is "rationally related" to that interest, and, in fact,
directly tailored to it: an equity court would retain jurisdiction only
for educational purposes. We have found no case in which a
plaintiff challenged a post-majority education child support law on

to its constitutionality. A statute survives rational basis review even if it
does not address all aspects of a problem. See Minnesota v. Clover Leaf
Creamery Co., 449 U.S. 456, 466 (1981).

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44 [102 Op. Att'y
the theory that it discriminated against adult children not in pursuit
of further education or training.
C. The Permissibility of Distinguishing Between Parents Who
Are Subject to an Equity Court's Jurisdiction for Child
Support Matters and Those Who Are Not
The bill makes a third distinction, between married parents
(who would retain the discretion to support their children during
postsecondary education) and divorced or unmarried parents who
could be ordered to provide such support. The claim that
postsecondary education child support statutes violate equal
protection by treating intact families differently than other families
has been almost universally rejected, whether because parents
under an equity court's jurisdiction are not "similarly situated" to
those who are not, or because the distinction met the applicable
standard of scrutiny. In Vrban, the Supreme Court of Iowa found
such a claim deficient for both of those reasons:
The respondent argues that divorced parents
are arbitrarily ordered to support their adult
children in order to accomplish this state
purpose [of education] while no similar
requirement is imposed upon married parents.
However, this does not necessarily make the
classification arbitrary or unreasonable. The
statute was designed to meet a specific and
limited problem, one which the legislature
could reasonably find exists only when a
home is split by divorce.
The legislature could find, too, that most
parents who remain married to each other
support their children through college years.
On the other hand, even well-intentioned
parents, when deprived of the custody of their
children, sometimes react by refusing to
support them as they would if the family unit
had been preserved.
The legislature could consider these facts and
decide there is no necessity to statutorily
require married parents to support their
children while attending college but that such
a requirement is necessary to further the state
interest in the education of children of
divorced parents. The differences in the
circumstances between married and divorced

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Gen. 33] 45

       parents establishes the necessity to dis-
       criminate between the classes. The statute is
       neither arbitrary nor unreasonable.

293 N.W.2d at 202 (citations omitted); see also Kurowski, 161
N.H. at 590 (explaining that the equity court's exercise of
jurisdiction in a child-support matter when the parents disagree
does not violate either parent's right to equal protection).8
Most other courts have agreed that post-majority child-
support statutes for educational purposes do not violate a parent's
right to equal protection. See, e.g., Childers, 89 Wash. 2d at 601-
02 ("If an absolute duty of support for such a purpose were imposed
on divorced parents, there would perhaps be an unreasonable
classification. Instead, what exists is the long standing special
powers the courts have had (in equity, regardless of legislation)
over the children of broken homes to assure that their
disadvantages are minimized."); Neudecker v. Neudecker, 577
N.E.2d 960, 962 (Ind. 1991) (rejecting the "claim that equal
protection rights are violated because a divorced parent can be
ordered to pay for his child's education, while a married parent may
unilaterally refuse to do so"). The Illinois Supreme Court, for
example, had "no hesitation" in concluding that a statute permitting
the trial court "to compel divorced parents to educate their children
to the same extent as might reasonably be expected of nondivorced
parents" was reasonably related to the state's legitimate purpose of
"minimiz[ing] any economic and education disadvantages to
children of divorced parents." Kujawinski, 71 Ill. 2d at 580; see
also McLeod, 723 S.E.2d at 206; McGinley, 172 Or. App. at 734;

8
The Kurowski court stated:
[I]n the context of a divorce, the trial court has the
authority to adjudicate disputes between two fit parents
involving parental rights in accordance with the child's
best interests. Because the parents in this case reached an
impasse on the exercise of their respective parenting
rights, the trial court properly utilized the best interests
standard to resolve the dispute. The trial court's decision
is not subject to strict scrutiny review merely because the
case involves the fundamental parental right to make
decisions for daughter's education and the parents'
divergent religious convictions.
Our decision is consistent with that of many other courts.
161 N.H. at 590 (citations omitted).

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46 [102 Op. Att'y
In re Marriage of Kohring, 999 S.W.2d 228, 233 (Mo. 1999);
McFarland v. McFarland, 885 S.W.2d 897, 899-900 (Ark. 1994);
LeClair v. LeClair, 137 N.H. 213, 223-24 (1993). In reaching that
conclusion, courts have generally rejected the notion that the
payment of post-majority child support implicates a fundamental
right that would trigger strict scrutiny. Kohring, 999 S.W.2d at 232
("[T]he jurisdictions that have considered [the question] have held
uniformly that a parent has no fundamental right to avoid providing
support for his or her children past age eighteen."); Neudecker, 577
N.E.2d at 962 ("The expenses of college are not unlike those of
orthodontia, music lessons, summer camp, and various other
optional undertakings within the discretion of married parents but
subject to compulsory payment by inclusion in a child support
order in the event of dissolution. The statutes which authorize such
orders do not infringe upon fundamental child-rearing rights.").
The Supreme Court of Florida reached a different result in
Grapin v. Grapin, concluding there that any "duty" to assist one's
adult children in obtaining a higher education "is a moral rather
than a legal one." 450 So.2d 853, 854-55 (Fla. 1984). As a result,
"[i]t would be fundamentally unfair for courts to enforce these
moral obligations of support only against divorced parents while
other parents may do as they choose." Id. at 854. The court did
not, however, analyze whether parents involved in child support
proceedings are "similarly situated" to parents who are either in an
intact relationship or in agreement on child support.
As explained by Vrban and Kurowski, parents involved in
child support proceedings are not "similarly situated" to parents
whose support of a child is not the subject of such a proceeding.
Moreover, as discussed above, the distinction is not only rationally
related to a legitimate purpose, as required under the rational basis
test, but also "substantially related to an important governmental
objective," as would be required to meet intermediate scrutiny.
Clark, 486 U.S. at 461. It is, therefore, our view that the bill would
not impermissibly differentiate between these two groups of
parents.
III
Conclusion
In our opinion, the legislation that was proposed in the 2017
legislative session as H.B. 955 would not violate the equal
protection rights of either the adult children or the parents who
would be affected by it. As discussed above, to the extent that the
legislation could be viewed as treating classes of "similarly

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Gen. 33] 47

situated" individuals differently, those classifications would be
subject to review for whether they are rationally related to any
legitimate state interest. Particularly if the legislation were to
include legislative findings on the State's interest in objectives such
as an educated workforce and the provision of educational
opportunities to children of divorce to address the disadvantages
they experience in that regard, it would easily withstand that
review. See, e.g., Kujawinski, 71 Ill. 2d at 579 (noting the "express
purpose" of Illinois's post-majority child support statute to
"mitigate the potential harm to the spouses and their children
caused by the process of legal dissolution of marriage").
Brian E. Frosh
Attorney General of Maryland

                                Ann MacNeille
                                Assistant Attorney General

Adam D. Snyder
Chief Counsel, Opinions & Advice