The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5221 August 24, 1977 CONSTITUTIONAL LAW: Equal Protection COLLEGES AND UNIVERSITIES: Citizenship requirement for student financial assistance MICHIGAN HIGHER EDUCATION ASSISTANCE AUTHORITY: Citizenship requirement for receiving financial assistance ADMINISTRATIVE LAW: Invalidity of a rule requiring citizenship to receive benefits of a student loan guarantee A rule of the Michigan Higher Education Assistance Authority which conditions eligibility for participation in the guaranteed loan program upon an applicant's United States citizenship or a declaration of intent to become a citizen is invalid as a denial of equal protection of the law. Dr. John W. Porter Superintendent of Public Instruction Department of Education Lansing, Michigan You have requested my opinion as to whether Administrative Code 1974, AACS, R 390.1421 violates the Equal Protection Clause of the United States Constitution. This administrative rule conditions eligibility in the Michigan guaranteed loan program (a1) upon an applicant's United States citizenship or upon an applicant's declaration that he intends to become a citizen. 1974 AACS, R 390.1421, supra, states in pertinent part that: '(1) To be eligible to receive a loan, a student shall: (c) Be a citizen of the United States or have declared his intention to become a citizen. A noncitizen may be required to file with the department an official copy of his declaration of intention to become a citizen of the United States.' (emphasis added) Pertinent to your inquiry is the Fourteenth Amendment to the United States Constitution which provides in relevant part: '. . . nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.' US Const, Am XIV It is clear that lawfully admitted resident aliens fall within the purview of the term 'person' as that term is employed in the above quoted constitutional provision. See Yick Wo v Hopkins, 118 US 356, 369; 6 S Ct 1064, 1070; 30 L Ed 220, 226 (1886) and Truax v Raich, 239 US 33, 39; 36 S Ct 7, 10; 60 L Ed 131, 134 (1915). In Nyquist v Mauclet, ---- US ----; 97 S Ct 2120; 53 L Ed 2d 63 (1977), the United States Supreme Court considered the constitutionality of a New York statute which, similar to the provisions of AACS, R 390.1421, supra, conditioned eligibility for higher education financial assistance on establishment that the applicant is a citizen of the United States, has made application to become a citizen, or has indicated intent to be a United States citizen. ---- US ----; 97 S Ct at 2123; 53 L Ed 2d at 67, supra. The Court, in a 5 to 4 decision, held that the proper standard by which the statute should be tested under the Equal Protection Clause is the standard of strict judicial scrutiny and stated: 'The Court has ruled that classifications by a State that are based on alienage are 'inherently suspect and subject to close judicial scrutiny.' Graham v Richardson, 403 U.S. 365, 372 (1971). See Examining Board v Flores de Otero, 426 U.S. 572, 601-602 (1976); In re Griffiths, 413 U.S., at 721; Sugarman v Dougall, 413 U.S. 634, 642 (1973). In undertaking this scrutiny, 'the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.' Examining Board v Flores de Otero, 426 U.S., at 605. See In re Griffiths, 413 U.S., at 721-722. Alienage classifications by a State that do not withstand this stringent examination can not stand.' ---- US ----; 97 S Ct at 2124; 53 L Ed 2d at 69-70, supra (footnotes omitted) In applying the strict judicial scrutiny test, the Court affirmed the judgment of the three-judge district court. The Court ruled: 'Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis. And although an alien may be barred from full involvement in the political arena, he may play a role--perhaps even a leadership role--in other areas of import to the community. The State surely is not harmed by providing resident aliens the same educational opportunity it offers to others.' ---- US ----; 97 S Ct at 2127; 53 L Ed 2d at 72, supra. Thus, the Court held that the challenged statute violated the Equal Protection Clause of the Fourteenth Amendment. In view of the foregoing, it is my opinion that 1974 AACS, R 390.1421, supra, which conditions eligibility for participation in the guaranteed loan program upon an applicant's United States citizenship or his declaration that he intends to become a citizen, denies lawfully admitted resident aliens the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution and that 1974 AACS, R 390.1421, supra, is unconstitutional. Frank J. Kelley Attorney General (a1)