The Puzzling Law and Economics of Out-of-State Tuition

Bryan Caplan has a good post on out-of-state tuition:

[State schools] almost always charge students from their own state much lower tuition. In the most recent data, average out-of-state tuition for four-year colleges was $26,382, versus $9,212 for in-state — roughly a 3:1 ratio.

I’ve argued for a long time that an enterprising lawyer ought to sue on the grounds that this is a violation of the constitution’s Privileges and Immunities Clause (Article IV, Section 2): “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Indeed, in Toomer v. Witsell the Supreme Court noted that

“…without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists.

and they ruled that it was unconstitutional to charge out-of-state fisherman a much higher price for a fishing license than in-state fishermen.

Thus, we hold that commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause. And since we have previously concluded that the reasons advanced in support of the statute do not bear a reasonable relationship to the high degree of discrimination practiced upon citizens of other States, it follows that § 3379 violates Art. IV, § 2, of the Constitution.

Appellants maintain that by a parity of reasoning the statute also contravenes the equal protection clause of the Fourteenth Amendment. That may well be true, but we do not pass on this argument, since it is unnecessary to disposition of the present case.

Education is more important than fishing licenses, especially in creating a Union, the purpose Article IV, S.2, thus I suggest the case for the unconstitutionality of out-of-state tuition is high.

Caplan’s article is about the economics, not the legality, of out-state-tuition. although the two issues have some bearing. Caplan asks how are we to think about the out-state fee. Is the out–of-state fee the monopoly price and the in-state fee the competitive price? Or is the out-of-state fee the competitive price and the in-state fee a highly subsidized price?

If the out-of-state fee represents a monopoly price, it is surprising that there isn’t more competition to attract out-of-state students. Given the potential profitability of out-of-state fees, it’s also curious why sought-after institutions such as UVA limit out-of-state enrollment! Moreover, out-of-state students are likely to have a more elastic demand than in-state students. After all, the out-of-state students have 49 states from which to choose while the in-state students may prefer to live closer to home. Thus, theory suggests that it’s the in-state students who should be charged the higher price not the out-of-state students.

Caplan instead argues that we should think of the out-of-state fee as the competitive (close to cost) price and the in-state fee as highly subsidized. But if we do that then state subsidies are much, much higher than is commonly considered. Indeed, so much so, that we have to start thinking about “dark subsidies” (like dark matter) to account for the differences (Caplan suggests such things as the implicit land subsidy).

My view is that the in-state fee is close to costs (after the obvious subsidies are taken into account) and the out-state fee is well above cost but that it’s not a “monopoly” price per se because the state-schools are not profit-maximizers. Instead, some in-state schools are able to attract some out-state students and earn a bit of cream to spread the fixed costs but they can do so only under a political constraint not to let to many out-of-state students in because the voting public thinks every out-of-state student in the “good” school could have been their in-state kid (this may well be false, the out-of-state kids allow the university to expand but it’s how the voters think.)

I agree with Caplan, however, that the economics of out-of-state and in-state tuition are sorely under researched and not well understood. Moreover, the economics connect to the constitutional issues, because subsidies for in-state students (i.e. with taxpaying parents) are more likely to be constitutionally acceptable than naked discrimination against out-of-state students simply because they are residents of another state of the union.