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U.S. Court Forbids Public-School Tuition for Military Dependents

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New Bern, N.C.--A federal judge has ruled unconstitutional a 1981 North Carolina law that allows school boards to charge tuition for the cost of educating students who are military dependents.

The law permits the tuition charge if federal impact-aid payments fall below 50 percent of the cost of educating a student in those districts.

In a judgment delivered on May 17, U.S. District Judge Franklin T. Dupree Jr. ruled in favor of eight soldiers stationed at the Marine Corps base at Camp Lejeune who filed suit last year challenging the law.

The soldiers have children in the Onslow County schools, but pay income taxes in other states where they maintain permanent residences.

In addition, the government property on which they reside is exempt from local property taxes.

The Onslow County school board approved the tuition charge in July in response to cutbacks in the federal impact-aid program to schools.

The impact-aid program, which has been cut from $825 million in the fiscal year 1980 to $463 in the current fiscal year, helps reimburse school districts for the costs of educating students whose parents are stationed at military bases or work for the federal government.

In his ruling, Judge Dupree said the tuition charge violated the "supremacy clause," contained in Article VI, section 2 of the U.S. Constitution.

The clause, the main foundation of the federal government's power over states, has been interpreted to mean that states may not interfere with the functioning of the federal government, and that in certain circumstances federal interests must prevail over conflicting state interests.

Judge Dupree agreed with the plaintiffs' argument that the tuition requirement is a tax on the agents of the federal government and, therefore, a tax on the government.

"The board specifically attempted to recoup federal funds through federally connected dependents," the judge wrote. "It is therefore discriminatory against government employees and cannot stand."

He added that the law was unconstitutional because it "intentionally discriminate[d] against the federal government."

Judge Dupree did not address the plaintiffs' argument that their right to equal protection under the law was violated because military dependents were singled out for tuition payments. And he rejected the military plaintiffs' claim that the tuition amounted to a breach of contract between the school board and the federal government. He also rejected their contention that the charge conflicted with federal laws exempting military personnel from state and local income taxes and property taxes in any state other than the one in which they permanently reside.

The Onslow system's tuition of $245 was set for the approximately 2,800 students from military families who listed their legal residences in other states. The school board said that if the tuition was not paid, the affected students would be dismissed. No tuition has yet been collected.

The suit was brought on behalf of the soldiers by the Justice Department.

Impact aid to Onslow schools, once as high as $1.2 million per year, was $387,000 in 1981-82, according to Everett L. Waters, superintendent of Onslow County schools.

Donald J. Clark, president of the National Association of Federally Impacted Schools, said the North Carolina case is the only one of its type pending at present.

In October, the Highland Falls Central School District in New York decided to charge tuition for children who live at the U.S. Military Academy at West Point.

According to Bruce Crowder, superintendent of the district, the tuition charge was dropped when the Education Department agreed to provide an additional $200,000 in impact aid for the 1982-83 school year.

Four other public-school systems with major military bases in North Carolina are following the local suit closely. In July, the Cumberland County school system, which serves Fort Bragg, voted to charge $433 for each student of military families, but it reversed that decision in November pending the outcome of the suit in Onslow County.

The Fayetteville City Schools in Cumberland County also serve a number of students from military families. The Wayne County school system serves Seymour Johnson Air Force Base, and the New Bern-Craven County school system serves Cherry Point Marine Air Station.

The Onslow County school board will meet on June 6 to discuss the possibility of an appeal, Mr. Waters said.

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