Bergmann v. Board of Regents of University System

ADKINS, Judge. For the second time, University of Maryland students challenge the constitutionality of the school’s methods of deciding a student’s domicile for purposes of qualifying for lower, instate tuition. This appeal is brought by four students 1 enrolled in professional and postgraduate degree programs at the University of Maryland, Baltimore, who sued the appel-lees, the Board of Regents of the University System of Maryland, the University, and the State, 2 seeking class certification and claiming that the Board violated their constitutional rights when it refused to reclassify them as in-state residents. This classification decision denied them the substantial tuition reduction offered to Maryland residents. ²⁴⁴ The Tuition Reclassification Process When a student initially applies to UM while residing out-of-state, the student is classified as an out-of-state student for tuition differential purposes.

All of the Students resided in another state at the time of their application. Under the UM policy, a student can petition UM for reclassification if the student believes that he meets the in-state residency criteria. The petition and supporting documentation are filed with the Office of Records and Registration, and they are reviewed by the Campus Classification Officer (the “CCO”), who is also the Director of Records and Registration. Wayne A. Smith, who held this position for -85 years, reviewed these documents, then sent a letter to each applicant-student, advising each of his decision.

When Smith retired on July 1, 2002, Thomas C. Day, Jr., who had been Associate Director of Records and Registration for five years, assumed Smith’s position as Director of Records and Registration. Under UM’s tuition reclassification policy (the “Policy”), a student dissatisfied with the decision of the CCO may first meet with the CCO to discuss the decision, and then appeal to the Campus Review Committee (“CRC”), which renders a final decision on the issue. A student who wishes to challenge the CRC-decision must sue UM. See Md.Code (1978, 2004 Repl.Vol., 2005 Cum.Supp.), § 12-104(b)(3) of the Education Article (“Educ.”)(authorizing UM to sue or be sued).

Procedural History In Circuit Court After exhausting these administrative remedies, the Students filed suit against UM, seeking certification for a class action. 3 The circuit court denied the Students’ motion for class certification. Both the Board and the Students filed motions for summary judgment. After a hearing on these ²⁴⁵ motions, the circuit court granted UM’s motion and denied the Students’ motion. The Students filed a timely appeal to this Court, raising four issues: I. Did the circuit court err in applying the substantial evidence standard of review to the Board’s residency classification decisions?

II

Were the Students entitled to a jury trial on their challenge to the denial of in-state reclassification?

III

Did the Board’s tuition charge differential policy violate the Maryland Declaration of Rights and the holding in Frankel v. Bd. of Regents, 361 Md. 298 [ 761 A.2d 324 ] (2000)?

IV

Did the circuit court err in denying the Students’ request for class certification? We shall answer no to questions I and II, and yes to question III. Because we answer yes to question III, we reverse the decision of the circuit court, and remand the case to that court. We do not answer question IV, but rather instruct the circuit court to reconsider whether, in light of this opinion and Md. Rule 2-321, a class should be certified.

The Frankel Decision And UM’s Revised Tuition Policy The Court of Appeals’ decision in Frankel v. Bd. of Regents, 361 Md. 298 , 761 A.2d 324 (2000), is crucial to this case, both as governing precedent, which we discuss later, and as background information. In Frankel , the Court of Appeals held that UM, a state “instrumentality,” violated the equal protection component of Article 24 of the Maryland Declaration of Rights when it adopted and applied a policy that “absolutely] precluded] ... in-state tuition status for any student whose primary monetary support comes from an out-of-state source[.]” Id. at 312 , 761 A.2d 324 . 4 The decision in Frankel , which was issued on November 6, 2000, caused the Board to ²⁴⁶ modify its policy less than a month later, in an effort to comply with Franlcel’s dictates. Under the Board’s former policy, no matter what a student could show with respect to traditional domicile factors, the student could not achieve instate tuition status if more than one-half of his or her financial support came from individuals residing out of state. See id. at 314 , 761 A.2d 324 .

The revised Tuition Classification Policy, adopted on November 27, 2000, provides in pertinent part: I. POLICY It is the policy of the Board of Regents of the University System of Maryland (USM) to recognize the categories of In-State and Out-of-State students for the purpose of admission, tuition, and charge differentials at those institutions where such differentiation has been established. A. An In-State student is a student whom the University determines to be a permanent resident of the State of Maryland. For the purposes of this Policy, “permanent resident” is defined as a person who satisfies all the following conditions and has done so for at least twelve (12) consecutive months immediately prior to and including the last date available to register for courses in the semester/term for which the person seeks In-State Status: 1. Is not residing in the State of Maryland primarily to attend an educational institution; and, 2.

Owns and continuously occupies or rents and continuously occupies living quarters in Maryland ...; and, 3. Maintains within Maryland substantially all personal property; and, 4. Pays Maryland income tax on all earned taxable income including all taxable income earned outside the State; and, 5. Registers all owned motor vehicles in Maryland in accordance with Maryland law; and, ²⁴⁷ 6.

Possesses a valid Maryland driver’s license, if licensed, in accordance with Maryland law; and, 7. Is registered in Maryland, if registered to vote; and, 8. Receives no public assistance from a state other than the State of Maryland or from a city, county or municipal agency other than one in Maryland; and, 9. Has a legal ability under Federal and Maryland law to live permanently without interruption in Maryland ____ D. Assignment of In-State or Out-of-State classification will be made by the University upon an assessment of the totality of facts known or presented to it.

The person seeking In-State Status shall have the burden of proving that he or she satisfied all requirements. E. Either of the following circumstances raisets] a presumption that the student is residing in the State of Maryland primarily for the purpose of attending an educational institution. 1. The student was attending high school or residing outside Maryland at the time of application for admission to a USM institution, or, 2. The student is both (a) not financially independent and (b) is financially dependent upon a person not a resident of Maryland.

The burden shall be on the student to rebut the presumption.

II

PROCEDURES.... B. A change in status must be requested by submitting a USM “Petition for Change in Classification for Admission, Tuition and Charge Differential”. A student applying for a change to In-State Status must furnish all required documentation with the Petition by the last published date to register for the forthcoming semester/term for which the change in classification is sought.... ²⁴⁸ E. Each institution of the University System of Maryland shall develop and publish additional procedures to implement this policy. Procedures shall provide that on request the President or designee has the authority to waive any residency criterion set forth in Section I. if it is determined that the student is indeed a permanent resident and the application of the criteria creates an unjust result.

These procedures shall be filed with the Office of the Chancellor.

III

DEFINITIONS A. Financially Dependent: For the purposes of this policy, a financially dependent student is one who is claimed as a dependent for tax purposes or who receives more than one-half of his or her support from another person during the twelve (12) month period immediately prior to the last published date for registration for the semester or session. If a student receives more than one-half of his or her support in the aggregate from more than one person, the student shall be considered financially dependent on the person providing the greater amount of support. B. Financially Independent: A financially independent student is one who (1) declares himself or herself to be financially independent as defined herein; (2) does not appear as a dependent on the Federal or State income tax return of any other person; (3) receives less than one-half of his or her support from any other person or persons; and (4) demonstrates that he or she provides through self-generated support one-half of his or her total expenses.... G. Self-Generated:....

For the purposes of this policy, grants, stipends, awards, benefits, loans and gifts (including federal and State aid, grants, and loans) may not be used as self-generated income. (Emphasis added.) ²⁴⁹ We shall refer to the rebuttable presumption set forth in section 1(E)(2) of the above Tuition Policy as the “Financial Dependence Presumption.” We shall call the rebuttable presumption set forth in section 1(E)(1) the “Residence at Application Presumption.” Because these rebuttable presumptions were frequently used by UM as the basis for determining that a student “is residing in the State of Maryland primarily for the purpose of attending an educational institution,” they are a central focus of this case. Recollection of these terms will facilitate understanding of the remainder of this opinion. Facts And Administrative Proceedings The Students all fell within the Residence at Application Presumption and the Financial Dependence Presumption.

They all lived outside Maryland at the time they applied to UM, and none were able to successfully demonstrate that they earned or received 50% or more of their total expenses (including tuition expense) for twelve months preceding their petition for re-classification. We shall set forth other pertinent facts about each of the Students below. Except as noted, all met Policy criteria 1(A)(2) through 1(A)(9). Karyn Bergmann Karyn Bergmann was accepted at the UM Law School for the term beginning in Fall 2000.

She was age thirty-six when she applied, and had worked for a number of years since graduating from college. She leased her Maryland residence, and obtained a Maryland driver’s license and vehicle registration in August 2000. She supported herself through the school year by using her summer salary and her student loans, which involved no co-signer. Her law-related activities included lobbying the General Assembly for passage of the Anti-Discrimination Act of 2001 and memberships in the Maryland organization Freestate Justice, the Maryland Public Interest Law Project, and the Maryland Environmental Law Society. 5 ²⁵⁰ She worked for the Maryland Office of the Attorney General in the Department of the Environment in 2001, and filed a Maryland income tax return reporting her income from that job.

She spent many weekends in Virginia during her first year at UM, but not thereafter. Bergmann stated in her petition to the CRC that she was more comfortable with Maryland’s political environment than that of Virginia, where she resided at application. She filed her petition for reclassification from out-of-state to in-state tuition status on August 16, 2001. At that time, she had not been claimed as a tax dependent for thirteen years.

On September 18, 2001, Smith sent Bergmann a letter advising that she failed to demonstrate that she was “not residing in [Maryland] primarily to attend an educational institution,” and that she fell within both the Residence at Application Presumption and the Financial Dependence Presumption because, upon application to UM, she resided outside Maryland, and she failed to show that she generated one-half or more of her annual expenses. When Bergmann met with Smith on September 27, 2001, regarding her petition, he told her she “really just needed to show that she earned, with a job, more than $15,000[,]” which would equal half of her reported expenses of $30,130, $19,718 of which was her law school tuition. She filed her formal appeal to the CRC on October 12, 2001, providing tax returns for twelve years, and an affidavit stating her intent to sit for the Maryland bar. On October 18, 2001, the CRC issued a formal denial of her petition on the ground that she failed to convince the committee that, during the period covered by your application, you were not residing in ...

Maryland primarily to attend an educational institution. Specifically, you were residing outside Maryland at the time of application for admission. ²⁵¹ The denial was issued after the Court of Appeals’ 2000 decision in Frankel . This lawsuit was filed on October 15, 2002. Eleven months later, an Assistant Attorney General representing UM wrote to Bergmann’s attorney, acknowledging UM’s error in considering her petition: The Court of Appeals [in Frankel ] ruled that while one of the policy’s criteria used to determine residency was legally impermissible, “[a] refund under the [Board of Regents] Policy cannot be made until the appropriate officials properly rule upon [Bergmann’s] request for in-state status, employing legally permissible criteria.” Using this holding as a guide, and because ... the Board’s post-Frankel policy — which the University contends is constitutional — was misapplied to Ms. Bergmann’s 2001 petition, the University must first review Ms. Bergmann’s petition using a correct interpretation of the Board of Regents policy governing residency classification for tuition purposes before it can consider her claim for a refund.

If after this review the University determines that she should have been reclassified as an in-state student, it will refund Ms. Bergmann the difference between in-state and out-of-state tuition for two years at the rates that were charged in academic years 2002 and 2003. (Emphasis added.) According to UM, Bergmann declined to participate in that review, but the CRC nonetheless reconsidered her petition on October 21, 2003, as well as “information relevant to her residency status as it existed at the time she filed her petition in 2001, which had been developed during discovery” in this suit. Information forthcoming since her 2001 application included her summons for and service on a Baltimore City jury in 2001, as well as her summons for jury duty in the federal District Court for Maryland in the summer of 2002. She also studied for and took the Maryland bar in the summer of 2003.

Nonetheless, the CRC decided to deny Bergmann’s petition again. ²⁵² In the “Memorandum of CRC Action” recording such action, the CRC stated that Bergmann “did not satisfy part I.A.1 and probably did not satisfy part I.A.3 of the Policy.” The pertinent text of this Memorandum states: I.A. 1. Under Part I.E of the Policy, Ms. Bergmann was subject to a presumption that she was in Maryland primarily for the purpose of attending an educational institution. This is due, first, to the fact that she lived in Virginia when she applied to Law School, and second, to the facts that she was not “financially independent” as the term is defined in the Policy and not financially dependent upon a Maryland resident, during her first year in Law School. She had the burden of rebutting that presumption in order to show that she was not in Maryland primarily to attend Law School.

The CRC unanimously agreed that Ms. Bergmann did not rebut the presumption that she was in Maryland primarily for the purpose of attending an educational institution. The CRC decided that the documents did not provide sufficient evidence that she was in the State of Maryland during her first year of law school primarily for a purpose other than attending the school. Ms. Bergmann did not establish or document any ties to Maryland before or during her first year of law school which would allow the CRC to find that she was living in Maryland primarily for any purpose other than to attend law school. In addition, Ms. Bergmann, by her own admission, spent a lot of social time in Virginia.

Her bank statements document that many of her purchases were made in Virginia during the first year of law school. Based on the information in her statements, the CRC interpreted that her involvement in student groups appeared to be an extension of her law school activities rather than as a resident of Maryland. The file showed no record of community involvement in Maryland beyond her Law School activities. In looking for a source within the documents which would have allowed the committee to interpret her activities during the first year of school differently, the CRC did not find ²⁵³ any documentation or affidavit from a friend or colleague of Ms. Bergmann’s which provided any credible support that she had relocated to Maryland for any purpose other than to attend law school.

The CRC was not persuaded otherwise by Ms. Bergmann’s self-serving assertion to her intent to be a Maryland resident. I.A.3. This is a requirement that the petitioner maintain within Maryland substantially all personal property. Ms. Bergmann had lived on her own for several years before applying to Law School, presumably acquiring furniture and other possessions for operation of a household.

Ms. Berg-mann lived in a furnished dormitory room at the Baltimore Student Union during her first year in law school. It is doubtful that she moved substantially all of her personal property into her dormitory room located on campus, even though she so indicated in her deposition. Failure to meet the requirements of either I.A.1 or I.A.3 disqualifies a student from reclassification to in-state status for tuition purposes. Upon examining the totality of the circumstances concerning Ms. Bergmann’s case, including her deposition, all the documentation provided to the CRC, and the criteria for granting in-state tuition status, the CRC felt that its decision regarding Ms. Bergmann’s residency during her first year in law school was definitive.

The Memorandum said nothing about her residency during her second year, although the Board’s earlier letter to Berg-mann’s counsel indicated the review would resolve both the second year and third year tuition status. Lance Pietropola Baltimore was the closest major metropolitan area to Lance Pietropola’s Pennsylvania home when he enrolled in UM School of Dentisti'y in the summer of 2000. During his first year of dental school, he lived in Baltimore, where he rented an apartment. During the summer after his first year, he taught school through an Americorp program affiliated with UM. ²⁵⁴ Pietropola filed a petition to be reclassified for his second year of dental school, in August 2001.

He tried to establish his financial independence by listing his $25,000 loan from UM as income, under the general category of “Sources of Funds and Other Support.” 6 He also listed as income a $20,855 “federal” loan and a $1,500 “HUD grant,” which, together with $3,690 of “self-generated income,” totaled $51,095 in income. He listed $50,547 in expenses, including $24,311.60 for “tuition and fees.” On September 18, 2001, he received the same letter from Smith denying his petition, citing the same Financial Dependency Presumption applied to Bergmann. When Pietropola met -with Smith, as part of his appeal from Smith’s decision, Smith said “pretty abruptly” that his $25,000 loan was no longer being considered as personal income, and that there was not much more to discuss. Pietropola filed a second petition on December 16, 2002.

His statement of income and expenses was similar, except that he listed his $25,000 loan from UM differently. This time, he classified it as “Self-Generated Income.” On January 13, 2003, Day, who had succeeded Smith as Campus Classification Officer, sent a letter denying Pietropola’s second petition for the same lack of financial independence reasons as his first letter. When Pietropola later encountered Day in the Records and Registration Office, Day told him that, without some new information, there was “not a whole lot to discuss.” In July 2002, Pietropola became engaged to a Maryland resident who worked in Baltimore; they married in May 2003. On August 25, 2003, Pietropola filed a third petition, requesting re-classification for his third year of dental school.

Day initially rejected this petition in September 2003, on the same Financial Dependence Presumption grounds. On October 21, 2003, at an appeal meeting with Pietropola, Day agreed to reconsider based on Pietropola’s marriage and his wife’s employment. On December 9, 2003, Day sent a letter to Pietro-pola informing him that his petition for reclassification was ²⁵⁵ granted, retroactive to the beginning of his third year in Fall 2003. Although Day stated no reasons in his December 9 letter, at his deposition Day said that Pietropola’s wife’s employment was dispositive.

Pietropola’s entitlement to reclassification for his second year remains unresolved. His activities while living in Maryland included church attendance, volunteer work, and a mentoring program. Cori Esser Cori Esser lived in the District of Columbia with her husband when she applied to and then entered UM School of Physical Therapy in 1998. Her sister-in-law lived in Maryland, but she and her husband rented an apartment in D.C. because the cost was lower than properties she looked at in Maryland.

She filed a petition for reclassification to in-state tuition status on May 12, 2000, at the end of her second year. On June 21, 2000, Smith denied her request on grounds of the Financial Dependence Presumption. 7 During her second year in physical therapy school, Esser rented an apartment in Bethesda, Maryland with another physical therapy student who also attended UM. But Esser only paid $200 of the $850 per month rent for the apartment, and she did not spend every night there, often returning to be with her husband in DC. She did not move her furniture into the Bethesda apartment.

Donald C. Wright Donald C. Wright began to live in Maryland in April 1999, when he started work at the Cheesecake Factory in Baltimore. Before that date, he had regularly visited his girl ²⁵⁶ friend, who lived in Maryland, on weekends. He entered UM School of Law in the fall of 1999. Wright filed his first petition for reclassification to in-state status on August 16, 2000, shortly before he started his second year of law school.

On September 13, 2000, before the Frankel decision was issued, Wright received a denial letter from Smith, citing the Financial Dependence Presumption. This letter contained more specifics than letters sent to the other Students. It indicated that Wright did not answer all the questions, that his expenses appeared to be low, and that his six months of earnings “were not documented.” Wright filed a second petition on September 10, 2001, seeking reclassification for his third year of law school. Smith denied this petition by letter dated October 15, 2001.

In addition to citing the Financial Dependence Presumption, Smith pointed to Wright’s failure to provide a lease showing his living quarters since April 30, 2001. Other Facts Regarding UM’s Application Of Tuition Policy Testimony Of Smith Smith served as the Campus Classification Officer and Director of Records and Registration during all pertinent periods until he retired on June 30, 2002. When Smith was asked how the Frankel decision “impacted] in any way your job duties and ... your handling of the petition process,” he answered: A. The University as a whole changed some of the questions that were asked and provided all of the campuses, including my campus, including me, with what the new Board of Regents policy was. Q. Did anyone describe to you what the changes were?

A. No, I read through them. Nobody really described them for me. In a follow-up question by the Students’ counsel, asking “[w]hat was the change in policy after Frankel,” Smith responded: ²⁵⁷ One of the changes that w[as] most prevalent for me is it was emphasized that all of the conditions of in-state status needed to be met for 12 consecutive months. The other area was that the dependency, the financial dependency, of an applicant or a student was no longer restricted to parent, spouse or legal guardian.

This meant that financial dependency could also occur when other relatives or third parties (excluding employers) provided more than 50% of the Students’ support. When asked, “[w]hat are the primary criteria that you would use to determine a student’s change of residency,” Smith stated: All the information that is in la and 1 through 9 [of the Tuition Policy] [is] looked at in addition to whether or not by definition, as you go through Policy A the A, B, C, D, and E, all of those are look[ed] at. You look at the policy in its entirety. He explained that the petitioning students must meet all of Conditions 1 through 9 to merit in-state tuition.

When asked whether students who met Conditions 2 through 9 would therefore necessarily qualify under Condition 1, Smith replied, “I think so.” 8 Later, to the contrary, he said that, when the petitioning student cannot demonstrate that she is “making enough money to be self-sufficient,” there is no circumstance that would allow the student to meet the residency requirement. As set forth previously, the Residence at Application Presumption (section E(l) of the Tuition Policy) requires an inference against the student based on his residency at the time of application to UM. Smith testified that this presumption disappears after twelve months living in Maryland while in school: ²⁵⁸ If they’ve overcome [the presumption] by living in the State of Maryland for 12 consecutive months, then in my opinion they’ve overcome that and then I’m not concerned about our living outside the state. Nor am I concerned about you went to high school outside the State[.] With respect to Bergmann’s petition, he explained: The reason that she was denied was the fact that, in looking at the entirety of her case, although she had physical presence, and when you look at the petition and what she had done, she had come into the state a week or two before the beginning of the semester having moved from another state, Virginia in this case, lived in student housing for a year, was a full-time student ... and at the end of her first year went and got a temporary job for a couple months, and that’s what I got to look at.

Smith also said that, if a student is financially dependent on a parent who lives out-of-state, there is no way to rebut the Financial Dependence Presumption (i.e., that they are in Maryland primarily to attend school). Factors like having family ties, friends, colleagues or professional relations with people in Maryland would not weigh in favor of qualifying, as he administered the Policy. Nor would he consider as a factor political activity, voting or active membership in a church, in Maryland. Referring to these types of factors, he expounded: [Y]ou’re here for nine or ten months that you’re going to school and you might want to join a lot of organizations.

The petition doesn’t ask that. There’s nothing there. It wants to know where did you live and where did you work. That’s what it’s looking for; and why you are here.

When asked, “really it’s what they’re asking for in the petition that is considered when you render your opinion?” Smith replied, “That’s what I use. I don’t have anything else to go by, other than the information that the student supplies.” According to Smith, very few of his decisions were reversed by the CRC. ²⁵⁹ Testimony Of Thomas C. Day, Jr. Mr. Day worked in the Records and Registration department for fifteen years, succeeding Mr. Smith as the Campus Classification Officer and Director of Records and Registration on July 1, 2002. His understanding of how to apply the post -Frankel Tuition Policy differed from Smith’s. My understanding of the change was that after the Frankel decision, if a person was deemed to be an out of state person and they had been living out of the state at the time they apply and/or they had no proven financial independence, that the idea of being in the State of Maryland primarily to go to school became an issue and if they could rebut that presumption, then they could still be determined to be a Maryland resident.

When asked how a student could rebut the presumption, Day explained: It can be a number of ways, a combination of different ways. They could be working, going to school part-time. I’ve seen people who have submitted things to me such as extensive volunteerism, membership in a religious organization, family ties here in the state, I’m sure there are some other things. Those are the things that have basically been presented to me in the past.

In most cases, it’s not one of those things, although it potentially could be a single one of those factors, but in most cases, it’s a combination of those kind of things. (Emphasis added.) Day said that “twice in the last month to month and a half,” a student who failed to meet the income criteria was able to overcome the Financial Dependence Presumption. He acknowledged that before that, “[i]t’s not an extremely high number.” When the Students’ counsel asked Day why a student-applicant’s income is considered in determining his or her residency, Day said: ²⁶⁰ I’m looking in terms of the judgment call. I’m looking to try to determine whether the student is doing other things besides being a student and if they happen to be working, that can be a contributing factor to things that they’re doing that’s not being a student.

Nevertheless, Day made it clear that Conditions 2 through 9 could not rebut the financial dependence presumption. He explained that Conditions 2 through 9 would not rebut either of the presumptions described above because “these things are specifically listed in the [Pjolicy as having been met.” He also asserted that, in computing whether a student earned more than 50% of his expenses in order to avoid the Financial Dependence Presumption, the tuition at UM must be included as an expense. Contrary to Smith, Day testified, as indicated above, that factors such as volunteerism, active church membership, and employment would be considered favorably in assessing residency. 9 He acknowledged that these criteria were not published or written down anywhere. Nevertheless, he asserted that when he interviewed a petitioner who could not meet the income requirements, he would ask about volunteerism and activities “outside of being a student.” When Day reconsidered Bergmann’s petition on 2003 (after the Board decided, mid-litigation, that the wrong criteria had been applied), he wrote to the CRC: In my judgment, the information submitted by Ms. Berg-mann and the additional information submitted by Ms. Cobb did not rebut the presumption that Ms. Bergmann was at that time in the State of Maryland primarily to go to school.

Specifically Ms. Bergmann’s activities and/or community involvement during her first year of Law School were minimal and connected to her status as a Law student. Day offered no explanation of why law-related community involvement would not qualify as evidence to rebut the Finan ²⁶¹ cial Dependence Presumption or the Residence at Application Presumption. The Board’s Answers to Interrogatories also stated that there is no list of the factors that can be used to rebut the Application at Residence Presumption or the Financial Dependence Presumption. Patricia M. Sokolove During all periods pertinent to these Students, Sokolove was the Assistant Vice President for Student Affairs at University of Maryland, Baltimore. 10 She also chaired the CRC, which “is made up of a group of ... four or five senior deans[.]” When asked how the Frankel decision “impactfed]” the way that the committee decided appeals and residency classification,” her answer was unclear.

I wouldn’t say that it changed the way, what we did. Our feeling was that we looked at what Mr. Smith [sic], his decision, and looked to see whether his decision matched what the written policy said and whether the supporting documentation supported his decision. Another of her responses suggested that her view of the post -Frankel Policy differed from that held by Day, and was more similar to Smith’s: Q: [I]f an individual failed the [Financial Dependence Presumption] could that be the sole reason why your committee would decline to give that student in-state status? A: Yes, it could, just as if they didn’t have a driver’s license from the State of Maryland and had one from some other state.

When asked what guidance she received about the revised Policy, she replied, said, “[actually, I think the committee just dealt with the policies themselves.” Sokolove further explained that “after Frankel we were more careful to look at all ²⁶² nine of those criteria more equally.” Regarding a student’s activities, such as active membership in a church, active community participation, or running for a public office, she said that these “would have no effect on” her decision as to residency. 11 She advised that “[bjetween 70 and 80 percent of the time we agreed with Mr. Smith and 20 percent of the time” we overruled him. With respect to Bergmann, Sokolove testified that the only reason Bergmann was denied in 2001 is that “she was attending high school or residing outside of Maryland when she applied.” She “guess[ed]” that the CRC also denied her petition because they “felt she” fell within the Financial Dependency Presumption. 12 Although Bergmann was financially independent (under section E(2) of Policy), she “did not provide half of her expense but neither did any other person[,]” as “all of her support comes from grants and loans.” Regarding section E(2)(b) presumption of non-residency if she “is financially dependent upon a person not a resident of Maryland,” Sokolove stated: “I wouldn’t say she exactly met it, but I wouldn’t say she didn’t meet it either.” Deposition Of David Nevins, Board of Regents Member David Nevins, who was a member of the Board of Regents and chair of its Finance Committee, explained the reason for the Tuition Policy: The purpose of this policy of ... the State of Maryland ... [is to] subsidize our institution to the tune of nearly one billion dollars. That’s operating cost alone. Additionally billions of dollars in capital costs.

So we want to make it such that students from out-of-state cannot fraudulently or otherwise represent themselves as in-state residents for the purpose of gaining discounted tuition. ²⁶³ Nevins denied that the Board of Regents “intend[ed] any consistent set of criteria or mechanism by which a student could be judged to have rebutted the presumption[s].” Rather, he looked to the different schools within UM, and their administrators: [W]e have generally found it to be appropriate not to establish policies that go to such a great degree as to restrict the differences among our institutions.... They all have professionally trained staffs that can, much better than we can, make these decisions. Yet, in turn, the ultimate decision makers, professionals from various schools who constituted the CRC and made final decisions about application of the Tuition Policy, apparently saw no flexibility in how they applied the policy. Sokolove, Chair of the CRC, commented with respect to Bergmann’s claim to the CRC that Smith was “inflexible,” that “these are the rules.

It’s not Mr. Smith’s call.... [I]t’s the Board of Regents’ definitions, not the university’s. Not the campus’s.” DISCUSSION I and II. Judicial Review Of Tuition Classification Decisions The threshold debate in this appeal is whether the circuit court must treat a challenge to UM’s denial of in-state tuition as “de novo” litigation, as the Students posit, or as judicial review of an administrative decision, 13 as UM contends. The circuit court granted summary judgment to UM on the ground that its “denials of the [reclassification] petitions are ²⁶⁴ supported by substantial evidence!.]” The Students argue that the deference shown by the circuit court to UM’s tuition domicile decision was not appropriate because the General Assembly has made the Administrative Procedure Act inapplicable to UM in these circumstances.

See Educ. § 12-104(j)(2)(except for appeals from employee grievances, “Title 10, Subtitles 1 and 2 of the State Government Article (“Administrative Procedure Act”) are not applicable to the University”). Because the domicile finding involves “core issues of intent,” and the evidence supports “divergent conclusions!,]” the Students contend that there were disputes of material fact that the court should not have resolved in UM’s favor on summary judgment. UM characterizes the Students’ standard of review challenge as a red herring. It argues that, because the facts offered to show the domiciliary intent of each student were not disputed, “the issue on appeal is whether the trial court’s rulings on the law were legally correct.” The answer, it submits, is yes.

What must be decided when a student challenges UM’s denial of in-state tuition in court is not addressed by statute or regulation. Nor has any Maryland case yet articulated the standard for such review of UM’s tuition domicile determinations. We shall hold that UM’s tuition domicile decisions are subject to judicial review on the same common law grounds as other administrative decisions. 14 ²⁶⁵ The statutory framework governing the University makes it clear that UM’s tuition domicile decisions are administrative adjudications by a State instrumentality. In Article 12, Subtitle 1 of the Education Article, the General Assembly declared that UM is “an instrumentality of the State,” which operates as “an independent unit of State government” in performing “an essential public function[.]” Educ. § 12-102(a)(2)-(4).

It created the Board of Regents to serve as UM’s governing body. See Educ. § 12-102(b)(“The government of the University System of Maryland is vested in the Board of Regents”). The Board [i]s responsible for the management of the University System ... and has all the powers, rights, and privileges that go with that responsibility, including the power to conduct or maintain any institutions, schools, or departments in the University.... Educ. § 12 — 104(c)(1).

Consequently, UM is a State instrumentality and the Board acts as its administrator with respect to the governance matters entrusted to the University. See Educ. § 12 — 102(a)(2)—(4). In the exercise of its statutory authority, the Board “may make rales and regulations and prescribe policies and procedures, for the management, maintenance, [and] operation ... of the University System[.]” Educ. § 12-104(j)(l). Among the management powers conferred upon the Board is the authority to establish tuition policy and rates.

In Frankel v. Bd. of Regents of Univ. of Md. Sys., 361 Md. 298, 317 , 761 A.2d 324 (2000), the Court of Appeals recognized that one of the essential tools employed by the Board to advance UM’s mission of educating Maryland students is to offer bona fide Maryland residents a substantially lower tuition rate than students from other jurisdictions. ²⁶⁶ Decisions regarding whether individual students qualify for the lower in-state tuition rate are made by the Board via policies and procedures established by the Board. 15 Through this process, UM determines domicile for all students who apply for the in-state tuition rate, including those who petition for reclassification. As we explained above, in order to implement its tuition differential policy, the Board also created an administrative process for considering such reclassification petitions. In Frankel , the Court of Appeals recognized that UM’s policies and practices governing determination of tuition domicile must comply with the constitutional requirements of equal protection and due process. See Frankel, 361 Md. at 313-15 , 761 A.2d 324 .

But neither Frankel nor any other Maryland decision has explicitly addressed how courts should treat challenges to UM’s domicile determinations. Courts in other jurisdictions that have considered similar questions regarding state universities uniformly have held that the university’s decisions regarding student domicile for tuition purposes are administrative decisions that must be judicially reviewed under the deferent standard that applies to review of administrative adjudications. See Webster v. State Bd. of Regents, 123 Ariz. 363 , 599 P.2d 816, 818 (Ct.App. 1979)(to overturn a university’s tuition domicile decision, “the trial court must find that the agency has acted arbitrarily, capriciously, or has abused its discretion”); Allen v. Scherer, 452 N.E.2d 1031, 1035 (Ind.Ct.App.1983)(when evidence regarding tuition domicile “could reasonably have given rise to two different inferences, the inference chosen by the agency must be sustained even though the court might have chosen a different inference”); Peck v. Univ. Residence Comm. of Kansas State Univ., 248 Kan. 450 , 807 P.2d 652, 660 (1991)(ju-dicial review of tuition domicile decision is limited to determining whether the decision was “unreasonable, arbitrary or capricious”); Norman v. Cameron, 127 N.C.App. 44 , 488 ²⁶⁷ S.E.2d 297, 300, review denied, 347 N.C. 398 , 347 N.D. 401 , 494 S.E.2d 416 (N.C.1997)(tuition domicile decision must be upheld if supported by substantial evidence); Ravindrana-than v. Va.

Commonwealth Univ., 258 Va. 269 , 519 S.E.2d 618, 620 (1999)(university’s denial of in-state tuition was supported by substantial evidence and was not unreasonable). 16 These courts and litigants proceeded under their respective state APAs. A New Jersey case, however, applied common law in reaching the same result. In Lipman v. Rutgers-The State Univ. of N.J., 329 N.J.Super. 433 , 748 A.2d 142, 146-47 (App.Div. 2000), the rationale for a deferent standard of review is persuasively articulated. As in this case, the state Administrative Procedure Act did not apply.

The Appellate Division of the New Jersey Superior Court observed that, although “[t]he University is not a State agency under the Administrative Procedure Act[,]” it “has long been considered an instrumentality of the State for the purpose of providing public higher education, and whose property and assets are impressed with a public trust for that purpose.” Id. at 147. As a result, “[w]hen Rutgers attempts to determine whether a student is domiciled in New Jersey, it acts much like an administrative agency.” Id. at 146. The appellate court concluded that the proper standard for judicial review of a tuition domicile decision by the university is the deferent standard that courts routinely apply to administrative decisions. [Universities are entitled to deference in some of their internal decisions.... We recognize that “[djomicile is a relation which the law creates between an individual and a particular locality or country.” Obviously, our courts have substantial experience dealing with this legal concept.

However, [the university] makes an initial domicile determination for each student admitted to the University. ²⁶⁸ Thus, [the university] makes thousands of domicile determinations every year. These decisions are mixed questions of law and fact. When a university determines domicile, aside from the applicable law, the university must also confront its students’ living arrangements, off-campus activities, and interaction with the school, as well as its own tuition policies. Therefore, a substantial portion of the domicile evaluation involves assessing factors that are uniquely within [the university’s] expertise and, in our opinion, warrant deference by the judiciary.

Id. at 147-48 (citations omitted). We agree with this reasoning. Deference to the statutory authority that the General Assembly has given the Board over tuition policy is appropriate when a circuit or appellate court is asked to reconsider a tuition domicile determination by the Board. UM possesses not only statutory authority, but also expertise in the unique determination of whether a particular student is domiciled in Maryland for the purpose of obtaining a higher education.

We are not persuaded otherwise by the exclusion of UM from the Administrative Procedure Act (APA) under Educ. section 12-104(j)(2). The Students misunderstand the effect of this provision. The judicial review standards set forth in the APA merely codify the prevailing common law standards governing judicial review of all administrative decisions. See, e.g., Harvey v. Marshall, 389 Md. 243, 296 , 884 A.2d 1171 (2005)(“Maryland cases suggest that ‘an administrative proceeding, even if not subject to judicial review under the APA, would be subject to judicial review, of essentially the same scope, in an action for judgment’ ”); Prince George’s County v. Beretta U.S.A. Corp., 358 Md. 166 , 176 n. 3, 747 A.2d 647 (2000)(when an adjudicative administrative decision is reviewable under common law rather than the APA, “essentially the same criteria set forth [in the APA] govern[s]”)(citing cases).

Thus, “[w]hen a court reviews an administrative decision that is not covered by the APA, judicial review is essentially identical to when the court is reviewing a decision ²⁶⁹ of any agency covered by the APA, absent a special statute to the contrary.” Arnold Rochvarg, Maryland Administrative Law § 4.43, at 136 (MICPEL 2001). There are many administrative decisions that are subject to this type of judicial review. See Beretta U.S.A., 358 Md. at 176 n. 3, 747 A.2d 647 (listing examples). To that list, we now add tuition domicile decisions by the University.

We hold that UM’s domicile determinations, when made to determine appropriate tuition charges for its students, are properly reviewed under the established principles governing judicial review of administrative decisions. 17 Whether a particular student is domiciled in Maryland is a mixed question of law and fact that may be challenged on the same grounds as other administrative adjudications. 18 Ac ²⁷⁰ cordingly, the Students’ claim that they are entitled to a jury trial on this issue must fail. In this case, the circuit court’s conclusion that there is substantial evidence to support UM’s domicile decisions demonstrates that the court properly considered at least one of these grounds. The question remains, then, whether the University’s tuition domicile decisions regarding the Students should be invalidated on other grounds, such as unconstitutionality, arbitrariness, or capriciousness. We address these issues next.

III

Violation Of The Maryland Declaration of Rights And The Holding In Frankel The Students next contend that the Board’s “tuition charge differential policy, on its face and as applied to [the Students’] petitions, violates [the Students’] substantive and procedural due process rights, as well as their rights to equal protection provided for by Maryland’s Declaration of Rights.” Although the Students assert generally that UM violated both their procedural and substantive due process rights, they focus on their equal protection argument and the Court of Appeals’ decision in Frankel , which was decided on equal protection grounds. Because we conclude that the Board’s application of its in-state tuition policy violated the Students’ equal protection rights under the Maryland constitution as enunciated in Frankel , we, like the