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A San Francisco judge has rebuffed a challenge by a recent graduate of the University of California’s Hastings College of the Law to the school’s out-of-state tuition policy. Joshua Markowitz, who moved to California in 1998 to attend Hastings, had also sought to recoup money he claimed was illegally charged to him in tuition. Superior Court Judge David Garcia told Markowitz in an order signed Friday that he had no case and granted Hastings’ motion for a judgment on the pleadings. But it appears that’s not the end of the matter. Neal Markowitz, the plaintiff’s brother and counsel, said he would appeal Garcia’s ruling in Markowitz v. Board of Directors Hastings College of the Law et. al., 317983. The brothers Markowitz have been fighting Hastings for nearly a year over its tuition policy, authorized under California’s Education Code and adopted in 1992. They argued that the Education Code violates the privileges and immunities, due process and equal protection clauses of the U.S. and state constitutions. Joshua Markowitz said in court papers that he moved to California in August 1998, obtained a California identification card and registered to vote the next month, got a job, paid taxes and was summoned to serve as a juror. He claimed this qualified him for in-state tuition. But Hastings asked whether Markowitz had been financially independent of his parents, who live in New York, for the past three years. When Markowitz balked at providing proof of his financial independence, the law school asked for his parents’ income tax forms to see if they claimed him as a dependent. His attorney brother said in an interview, “In California, it’s a privacy thing.” Well, not exactly, said John Baum, Hastings’ outside counsel who defended his alma mater’s tuition-setting policy. In his moving papers, Baum argued the tuition system “is a rational and legitimate expression of California’s interest in financing, operating and maintaining its publicly financed institution of higher education and providing residents of the state with a higher education at a lower tuition rate.” Baum, a partner in Curiale Dellaverson Hirschfeld Kelly & Kraemer, simplified it even more in an interview: “It’s an argument of how you allocate your tax dollars.” He told Garcia that in-state tuition should only be “afforded to those students who truly intend to remain in the state and not simply benefit from an education that is portable after graduation.” “California has a legitimate interest in not providing a financial windfall of lowered tuition to such a nonresident,” he added. But the brothers Markowitz claimed that Joshua “will be irreparably harmed due to the financial hardship.” “Hastings charges Markowitz approximately $10,239 per semester in tuition and fees, including $4,560 for ‘nonresident tuition,’ ” their court papers said. “ This leaves a mere $2,476 for room, board and books and all other expenses” for the school semester. Moreover, Joshua would be forced to work significant hours per week to pay for “the bare essentials of life in San Francisco,” they wrote. Joshua estimated that he is owed about a $25,000 tuition refund, since he had the intent to stay in California and met the duration test to prove it. Striking out for similarly situated classmates, the brothers hope to win on appeal and pursue a class action. Joshua Markowitz graduated from Hastings in May. If he passes the bar exam, he can take over his case. Then his brother, an associate with the Solana Beach, Calif., firm of Eppsteiner & Associates, can return to his own practice.

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