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Joshua Markowitz may think it’s unfair that he paid higher law school tuition than California residents, but three 1st District Court of Appeal justices seemed to have their doubts about that on Tuesday. Holding court before a throng of students at San Francisco’s Golden Gate University School of Law, Justices Timothy Reardon, Patricia Sepulveda and Maria Rivera listened politely as Markowitz’s attorney and brother, Neal, argued that state policy authorizing higher tuition for out-of-state students is unconstitutional and interferes with citizens’ federal right to travel. But they then peppered Neal Markowitz with questions strongly indicating that they believe there’s nothing wrong with a state having a difference in tuition between in-state and out-of-state students. “There is not a single case that says that’s not constitutional,” Rivera said. Markowitz v. Hastings College of Law, A096182, began when Joshua Markowitz, who moved to California in 1998, sued the University of California, Hastings College of the Law, contending that the $4,560 for non-resident tuition he paid atop his regular tuition and fees of more than $10,000 was constitutionally unfair. San Francisco Superior Court Judge David Garcia sided with Hastings in a ruling last year, three months before Joshua, who was at his brother’s side Tuesday, passed the California bar exam. On Tuesday, Neal Markowitz, of Solana Beach, Calif.’s Eppsteiner & Associates, relied heavily on the U.S. Supreme Court’s 1999 ruling in Saenz v. Roe, 526 U.S. 489, which declared unconstitutional a California rule that limited a newcomer’s welfare payments. “California’s legitimate interest in saving money does not justify this discriminatory scheme,” the court said. The high court specifically said the welfare rule violated the 14th Amendment’s equal protection clause and its immunities clause by enacting a durational residency requirement without showing a compelling state need. But Justice Reardon on Tuesday asked Markowitz whether case law indicates a difference between a fundamental right to shelter and the right to a higher education. And Justice Rivera noted that Chief Justice William Rehnquist, in a dissent in Saenz, pointed out that the high court had affirmed different ratios for in-state tuition in cases from Texas and Washington in the early 1970s. Attorneys for Hastings, meanwhile, placed most of their eggs in the 1st District’s own basket — almost exclusively citing 1969′s Kirk v. Regents of the University of California, 273 Cal.App.2d 430, in which the 1st District said higher tuition for out-of-state students was supported by rational reasons for financing and operating the state’s university system. “This is Kirk. This is Kirk on all fours,” Hastings’ lawyer John Baum, a partner in Curiale Dellaverson Hirschfeld Kelly & Kraemer, told the justices. “ Kirk said [higher education] is not a fundamental right. “Education,” he continued, “is a portable benefit and the courts have been consistent in finding [tuition differentials] a legal exercise of the state’s discretion.” Justice Rivera, however, seemed slightly troubled by the fact that state policy requires a three-year residency with proof of financial independence from out-of-state parents. Joshua Markowitz’s parents reside in New York. Neal Markowitz had argued earlier that state policy — disallowing proof of financial independence if a student’s parents provided more than $750 in a year — made it nearly impossible for poverty line students to comply with the residency requirements, and penalized them if they tried to reclassify after a few years of school. Is proof of financial independence the only factor in the decision, Rivera asked, or one of many? “It’s one factor,” Baum said. Afterward, Jeffrey Blair, attorney for the Oakland-based Regents of the University of California, an amicus curiae in the case, said the UC system — which has 10 campuses and 160,000 students — stands to lose more than $170 million annually, 25 percent of its revenues from student fees and tuition, if Markowitz prevails. “And that’s just to UC,” Baum added. “So,” Blair said, “the implications financially are huge.” Student interest in the case certainly is high. Throngs of Golden Gate students packed the courtroom for the argument, but most streamed out of the courtroom before the next argument got under way.

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