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Court of Appeal, First District, Division 3, California.

Thida Annie WONG, on behalf of herself and all others similarly situated, Plaintiff and Respondent, v. BOARD OF TRUSTEES, CALIFORNIA STATE UNIVERSITY AND COLLEGES, Defendant and Appellant.

Civ. 36196.

Decided: November 19, 1975

Evelle J. Younger, Atty. Gen., Elizabeth Palmer, Asst. Atty. Gen., Jerome M. Behrens, Deputy Atty. Gen., San Francisco, for defendant and appellant. David C. Moon, Ronald Wong, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, for plaintiff and respondent.

The principal issue here is whether Thida Annie Wong is denied the equal protection guaranteed her by the Fourteenth Amendment of the United States Constitution and the California Constitution by reason of section 23761 of the Education Code which compels her to pay a $350.00 tuition fee at San Francisco State College. A citizen of the United States from any state may qualify for free tuition by establishing residence in California for one year (Ed.Code, § 22812) while an alien resident cannot qualify until proof of residence in California for one year after achieving permanent residence status under the immigration laws. This result is due to the interpretation given to section 23761 of the Education Code by appellant Board of Trustees. Section 23761 provided in relevant part: “Every alien student is deemed to be a nonresident student unless he has been lawfully admitted to the United States for permanent residence in accordance with all applicable provisions of the laws of the United States.” Section 23761 has been repealed since commencement of this suit (Stats.1972, ch. 1100, p. 2104, § 24) and its requirements have been reenacted in a form which makes express the administrative interpretation resulting in the requirement that a one-year waiting period be served before qualification for resident tuition. Thus, sections 22855 and 22856 now provide:

“A student who is an adult alien shall be entitled to resident classification if he has been lawfully admitted to the United States for permanent residence in accordance with all applicable laws of the United States; provided, that he has had residence in the state for more than one year after such admission prior to the residence determination date for the semester, quarter or term for which he proposes to attend an institution.” (§ 22855)

“A student who is a minor alien shall be entitled to resident classification if both he and his parent have been lawfully admitted to the United States for permanent residence in accordance with all applicable laws of the United States; provided, that the parent has had residence in the state for more than one year after such admission prior to the residence determination date for the semester, quarter or term for which he proposes to attend an institution.” (§ 22856)

The petitioner and her family came to California from Thailand in 1964 when she was 14 years of age and have resided in San Francisco. She has attended San Francisco public schools ever since. She entered this country on a student visa and retained that status until April 1972, when her status was adjusted to that of permanent resident alien. On September 15, 1972, she attempted to register at San Francisco State for the fall semester as a resident student and was told she had to pay nonresident tuition because she had not resided in this state for at least one year subsequent to achieving permanent resident status. She intended to graduate in January 1973, with a degree in accounting and to continue her residence in California thereafter.

In Kirk v. Regents of University of California (1969) 273 Cal.App.2d 430, 444, 78 Cal.Rptr. 260, 269, it was stated: “This state has a valid interest in providing tuition-free education to those who have demonstrated by a year's residence a bona fide intention of remaining here and who, by reason of that education, will be prepared to make a greater contribution to the state's economy and future. Accordingly, we hold that the regulation classifying students as residents or nonresidents for tuition purposes is not arbitrary or unreasonable and bears a rational limitation to California's objective and purpose of financing, operating and maintaining its many publicly financed educational institutions of higher learning (citations).”

The trial court here held in effect that respondent by her long-time residence was arbitrarily discriminated against by the college board's refusal to classify her with United States citizens of other states who needed only the one-year residency.

It is recognized that state statutes which treat citizens and noncitizens differently are inherently suspect and are subject to strict judicial scrutiny whether or not a fundamental right is impaired. (Graham v. Richardson (1970) 403 U.S. 365, 376, 91 S.Ct. 1848, 29 L.Ed.2d 534.)

Our Supreme Court has recently described the standard of scrutiny as follows: “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. In cases involving ‘suspect classifications' or ‘fundamental interests' of those suffering discrimination, the United States Supreme Court prescribes a strict standard for reviewing the particular enactment under the equal protection clause. Not only must the classification reasonably relate to the purposes of the law, but also the state must bear the burden of establishing that the classification constitutes a necessary means of accomplishing a legitimate state interest, and that the law serves to promote a compelling state interest.” (Fns. omitted.) (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578-579, 79 Cal.Rptr. 77, 85-86, 456 P.2d 645, 653-654.)

We therefore scrutinize the facts before us to determine whether the discrimination accomplishes a legitimate state interest. Under the guidelines of Kirk v. Regents of University of California, supra, we conclude that the requirement of an intent to become a permanent resident is not so onerous, demanding or impossible of achievement that it should be ignored. In reaching our conclusions, we are also mindful that a student who receives the advantages of a tuition-free education is not compelled to, and may not, remain in California, but at least the requirement of disclosure of an intent to do so is not arbitrary and its purposes are reasonably related to a state interest.

In Shapiro v. Thompson (1968) 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, the court in holding that a state may not make invidious distinctions between classes of its citizens added: “We imply no view of the validity of waiting-period or residence requirements determining … tuition-free education … and so forth. Such requirements may promote compelling state interests ․” (At p. 638, 394 U.S. fn. 21, at page 89 S.Ct.)

Under the factual situation before us, there is no evidence that respondent made an expression of an intent to be a resident of the United States or of California until after she applied for free-tuition status. It is true that she resided in California for a number of years prior to applying for permanent residence status. Unlike citizens from other states who came to California and qualified for tuition-free status after one year, respondent cannot be presumed to have intended to reside here permanently. During her years of residency with her family in California, she attended the public schools and entered San Francisco State University where she was accepted as a foreign student. Any intent for permanent residency is negated by her being issued temporary student visas each year. (8 U.S.C. § 1101(a)(15)(F) & (J).) These student visas are granted to aliens who have no intention of abandoning their foreign residence. Respondent's yearly extensions of her student visas were based on that expression of intent.

While we do not consider the fact that she did not abandon her Thailand residence as indisputable evidence of an intent to retain that residency, we find no other evidence except a belated expression of intent to become a permanent resident of California when such statement would benefit her financially. We think it is reasonable to use the federal immigration classification of temporary aliens and permanent resident aliens for the purpose of ascertaining respondent's residence in applying and construing the code sections in question.

We have concluded, therefore, that section 23761 (and as recodified in sections 22855 and 22856) does not constitute an invidious distinction between resident citizens and resident aliens so as to constitute a denial of equal protection under the federal and state Constitutions. Therefore, the judgment of the trial court is reversed.

HAROLD C. BROWN, Associate Justice.

DRAPER, P. J., and GOOD, J.,* concur.