Could South Carolina deny in-state tuition to a resident’s dependent child because of visa status?

Plain-English summary

South Carolina’s higher education commission asked about a regulation denying in-state tuition to some nonpermanent-resident alien dependents of qualifying state residents while similarly situated citizen dependents received the resident rate. The AG thought the regulation conflicted with the tuition statute as applied to those dependents. Although the commission could prescribe uniform regulations, the statute allowed qualifying South Carolina residents and their dependents to receive in-state rates without an alien-status limit on the dependents.

The AG separately considered whether legislation could draw a visa-based distinction. He said a denial for dependents with F-1 student visas might be justified if the state had a rational basis, but such a policy would have to come from legislation because the existing regulation conflicted with the statute. He did not decide that a proposed law would pass constitutional review. The letter identified itself as an informal opinion by an Assistant Deputy Attorney General.

Currency note

This opinion was issued in 1998. 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

Q: Could the commission’s regulation deny in-state tuition to every nonpermanent-resident dependent? A: The AG thought the regulation was invalid to the extent it denied rates that the state statute allowed to dependents of qualifying residents.

Q: Did the AG say the commission could change its regulation to add more visa exceptions? A: He did not reach that question after finding the regulation inconsistent with the statute as to the dependents at issue.

Q: Could the Legislature set a different rule for F-1 student visa holders? A: The opinion said such a distinction might be possible with a rational basis, but it would need legislation. It did not approve a specific bill.

Background and statutory framework

The AG compared the commission’s visa classifications with Section 59-112-20’s treatment of a qualifying resident and dependents. He then discussed equal protection and cases concerning different groups of noncitizens to assess what a later statute might allow. His definite conclusion concerned the conflict between the existing regulation and state law.

Citations and references

Statutes discussed: Section 59-112-20; S. C. Code Ann. §59-112-100.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-11-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98march11barton1.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

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March 11, 1998

Dr. Rayburn Barton
Executive Director
South Carolina Commission on Higher Education 1333 Main St. Columbia, SC 29201 Dear Dr. Barton: You have requested the advice of this Off ice as to the constitutionality of a State regulation which denies certain "nonpermanent resident aliens" in-State rates when they are dependents of qualified residents although citizens who are dependents of qualified residents are entitled to in-State rates. Regs. 62-602 (I), 62-604, vol. 25A s.c. Code Ann. (Supp. 1996). 1 This regulation may be invalid by being inconsistent with State law. Although the Commission on Higher Education is given the authority to " ... prescribe uniform regulations for application of the provisions of this chapter ... " under S. C. Code Ann. §59-112-100 (1990), the regulations differ from the related statutes concerning tuition rates as to the matter of dependent aliens. s.c. Code Ann
§59~112-10, et seg.
The regulations bar non-permanent resident aliens from receiving in-State rates unless they fall within 1

Reg. 62-602 (I) provides that the term "'non-resident alien' is defined as a person who is not a citizen or permanent resident of the United States. By virtue of their non-resident status 'nonresident aliens' generally do not have the capacity to establish domicile in South Carolina." Reg. 62-604 provides that " ... all non-citizens and nonpermanent residents of the United States will be assessed tuition and fees at the non-resident, out-of-state rate ... ", but " ( c] ertain non-resident aliens present in the United States in specified visa classification may be granted in-State residency for tuition and fee purposes as prescribed by the Commission on Higher Education." None of the specified visa classifications include student visas. See Supplemental Guidelines of the Commission.

R EMBERT

c. DENNIS BUILDING

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POST OFFICE Box 11549

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COLUMBIA , S .C. 29211-1549

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TELEPHONE:

803-734-3970

•

FACSIMILE: 803-253-6283

Dr. Rayburn Barton
March 11, 1998

Page 2

certain visa categories. Note 1, supra. Section 59-112-20 permits
independent persons residing in South Carolina for twelve months
and their dependents to receive in-State rates without any
limitation due to the alien status of the dependents.
As stated in Brooks v. South Carolina State Board of Funeral
service, 271 s.c. 457, 247 S.E.2d 820, 822 (1978):

I

The Board is a creature of statute and its authority is
dependent upon statute.
Calhoun Life Insurance Co. v.
Gambrell, 245 s.c. 406, 140 S.E.2d 774 (1965).
It
possesses only those powers that are conferred expressly
or by reasonable necessary implication, or are merely
incidental to the powers expressly granted. Piedmont &
Northern Ry. Co. v. Scott, 202 s.c. 207, 24 S.E.2d 353
(1943).
The minimum requirements for a licensed funeral director
are set forth in Section 40-19-160.
It is clear the
Board could not adopt a rule that would reduce these
minimum requirements. Lake v. Mercer, 216 s.c. 391, 58
S.E.2d 336 (1950). Neither could the Board adopt a rule
that would materially alter or add to these minimum
requirements. Lee v. Michigan Millers Mutual Insurance
Co., 250 S.C. 462, 158 S.E.2d 774 (1968).
Although the above regulations are entitled to a presumption
of validity (Ops. Atty. Gen. 2-15-89), the regulations regarding
dependent aliens appear to conflict with the related statutes so as
to render them invalid as those matters under Brooks.
Certain visa categories
are already exempt
from the
regulations regarding non-permanent residents. See note 1, supra.
Because of the conclusion that the regulation is invalid to the
extent that it denies certain alien dependents in-State rates, the
question of whether additional exemptions might be added need not
be reached. But see infra.

The question has arisen as to whether the above matters could
be addressed by new legislation. To justify a policy such as that
set forth in the regulations, the State would probably have to meet
a rational basis test for distinguishing between non-permanent
resident alien dependents and citizen dependents. Plyler v. Doe,
102 s.ct. 2382 (1982) (holding unconstitutional the denial of
education to children of illegal immigrants) and Nyquist v. Mauclet
97 s.ct. 2120 (1977) (holding unconstitutional a New York statute
barring resident aliens from State financial assistance). Although
these cases address situations different from that presented here,
Plyler broadly states that "
the Equal Protection Clause
operates of its own force to protect anyone 'within (the State's]

Dr. Rayburn Barton
March 11, 1998
Page 3
jurisdiction' from the State's arbitrary action."
102 s.ct. at
2399.
This language may cover non-permanent resident student
aliens.
A previous opinion of the Off ice of the Attorney General
concluded that a proposed bill would be unconstitutional in
treating resident alien students differently by denying them the
benefit of in-state rates (Ops. Atty. Gen. (1-21-1980); ~also
Id.
(11-20-79)); however, that conclusion did not apply to
"nonimmigrant" aliens which it noted included most foreign students
studying in this country. The opinion noted distinctions in the
nonimmigrant's situation as to domiciliary intent.

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Other
authority
indicates
that
the
distinctions
in
"nonimmigrant students" may justify their different treatment as to
in-State rates under the circumstances presented here. As stated
in Regents of the University of California v. The Superior Court of
Los Angeles County, 225 Cal.App.3d 972,
276 Cal.Rptr. 197 (Ct.
App. CA 1990):
Federal immigration law classifies all noncitizens into
two groups:
immigrant aliens and nonimmigrant aliens.
(8 u.s.c. § 1101(a)(3), (15).) All aliens are immigrants
except those who fall into one of fourteen classes of
nonimmigrants.
(Id.,
*979
§
110l(a)(15)(A)-(J).)
Examples of the fourteen classes of nonimmigrant aliens
are diplomats, tourists, business travelers, students,
foreign press correspondents, passengers in transit, and
ships' crews ... (emphasis added).

I

b.
~

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Federal law defines an alien as " ... any person not a citizen or
national of the United States."
42 u.s.c. §llOl(a) (3).
It
includes
certain
student
aliens
within
the
category
of
"nonimmigrant aliens" when the following factors are present:
an alien having a residence in a foreign country which he has
no intention of abandoning, who is a bona fide student
qualified to pursue a full course of study and who seeks to
enter the United States temporarily and solely for the purpose
of pursuing such a course of study consistent with section
1184(1) of this title .....
Federal law requires these nonimmigrants to reimburse schools for
the cost of their elementary and secondary education.
8 u.s.c.
§1184 (1). Although it does not address college costs, the federal
law indicates no basis for concluding that aliens enrolled in state
colleges must receive a greater benefit than grade school students.
The absence of such a reference suggests that the federal
government intended for such matters to be left to he states.

Dr. Rayburn Barton
March 11, 1998
Page 4
Consistent with the conclusion that non-immigrant students
may be treated differently is Ahmed v. University of Toledo 664
F.Supp. 282 (N.D. Ohio 1986) which noted that student F-1 visa
holders " ... are not afforded special economic protection by the
federal government."
The Court upheld an insurance requirement
imposed upon such students under a rational basis test.
This authority may permit the denial of in-State rates to
dependents with F-1 visas assuming that the State has a rational
basis for doing so. Any such policy would need to be established
by legislation given that the regulation is now inconsistent with
related statutes.
If any other visa categories were to be denied
in-State rates or if any exemption were to be permitted within the
F-1 category, they would need to be supported by a rational reason.

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This letter is an informal opinion.
It has been written by
the designated Assistant Deputy Attorney General and represents the
opinion of the undersigned attorney as to the specific questions
asked.
It has not, however, been personally reviewed by the
Attorney General nor officially published in the manner of a formal
opinion.
If you have further questions, please let me know.

,,,,~

General
CC:
JESjr

Ms. Gail Morrison