Glusman v. TRUSTEES OF UNIVERSITY OF NO. CAROLINA

200 S.E.2d 9 (1973)

284 N.C. 225

Kenneth GLUSMAN, Petitioner, v. The TRUSTEES OF the UNIVERSITY OF NORTH CAROLINA, Respondents. Anthony B. LAMB, Petitioner, v. The BOARD OF TRUSTEES OF the UNIVERSITY OF NORTH CAROLINA, Respondent.

No. 71.

Supreme Court of North Carolina.

November 14, 1973.

*11 Kenneth Glusman, pro se.

Smith, Patterson, Follin & Curtis by Norman B. Smith, Greensboro, for Anthony B. Lamb.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore, Jr., Raleigh, for respondent appellees.

BOBBITT, Chief Justice.

With reference to the regulation attacked by both Glusman and Lamb, we now hold, on authority of Vlandis v. Kline, 412 U.S. 441, 93 S. Ct. 2230, 37 L. Ed. 2d 63 (1973), that a student who was classified as a nonresident for tuition purposes at the time of his original enrollment could become, upon establishing his domicile in North Carolina for six months or more, entitled to in-State tuition status notwithstanding during this six months' period he was enrolled in an institution of higher education in this State. This is in accord with Judge Braswell's holding with reference to that regulation.

In our prior decision, we held that Lamb did not become entitled to in-State tuition status in January 1970 on account of his marriage then to a North Carolina domiciliary. Neither petitioners' appeal to the United States Supreme Court nor Vlandis v. Kline, supra, involved that decision.

The "Agreed Statement of Facts" contains these stipulations: When they came to North Carolina, both Glusman and Lamb had the intent of remaining in the State for an indefinite period of time. Both established residence in the State of North Carolina for the purposes of voting and payment of taxes. "[T]he only reason why both were denied, after six months had elapsed, reclassification for tuition purpose to that of resident is that neither maintained a residence in the State for six continuous months exclusive of time spent while in attendance at the University of North Carolina School of Law."

The stipulations establish that Glusman qualified for in-State tuition from September 1969 to June 1970 and from September 1970 to June 1971; and that Lamb qualified for in-State tuition from September 1970 to June 1971 and from September 1971 until December 1971.

The stipulated facts do not establish that Lamb was qualified for in-State tuition from Sepbember 1969 until June 1970. He acquired in-State tuition status only for periods beginning six months or more after September 1969.

Accordingly, the judgment of the court below is vacated. The case is remanded to the superior court with direction that it remand the case to the Residence Status Committee of the University of North Carolina at Chapel Hill for further proceedings in accordance with the law as declared herein.

Remanded with directions.

HIGGINS, Justice (dissenting).

I am unable to agree with that part of the Court's judgment which vacates the order entered in the Superior Court by Judge Braswell.

After reciting the agreed facts, Judge Braswell concluded:

(1) "Now, Therefore, It Is Ordered, Adjudged And Decreed, that the tuition regulations which provide that the residence status of any student is forever to be determined as of the time of his first *12 enrollment in an institution of higher education in North Carolina, and that residence status may not thereafter be changed if he continues re-enrollment without first having dropped out of school for at least a six-months' period, is declared unconstitutional." (2) "The cases of Kenneth Glusman, petitioner, and Anthony B. Lamb, petitioner, are each, hereby remanded to the Residence Status Committee of the University of North Carolina at Chapel Hill; which Committee shall conduct a hearing, after notice and it shall make a determination of residence of each petitioner during the period involved in each petition; and it shall make such ruling and order as the true facts warrant." (3) "In its determination of residence status of each petitioner the respondent shall not apply its regulations so as to discriminate against a male student who, being married, has since his first enrollment established a bona fide residence in North Carolina, and whose wife would be qualified to be enrolled as an in-state resident by virtue of the husband being then a legal resident of the State of North Carolina."

The clear purport of Judge Braswell's order in that the Residence Status Committee of the University shall conduct a hearing and determine the bona fide residence status of each of the plaintiffs uninhibited by the former rule that residence status is forever determined by the time of the first enrollment.

No. (3) above quoted should be treated as surplusage. It may be presumed from (1) and (2) that the Committee will not discriminate against either of the plaintiffs on account of his marital status.

For the reasons assigned in my dissenting opinion in Glusman v. Trustees and Lamb v. Trustees, 281 N.C. 629, 190 S.E.2d 213, it is my view that Judge Braswell gave the proper direction for determining the rights of Glusman and Lamb under the facts agreed.