In a dissolution of marriage case the court can order one or both parents to contribute towards the higher education costs and expenses for the benefit of their children. This article discusses some of the constitutional implications of this statute. It further addresses some practical advice in addressing agreements to contribute to higher education.
In a divorce proceeding the court can order the parents to contribute towards the Higher Education of their child. 750 ILCS 5/513. Such a request for contribution can be made before or after the child has reached the age of majority. 750 ILCS 5/513 (a)(2). The statute points out “The educational expenses may include, but shall not be limited to, room, board, dues, tuition, transportation, books, fees, registration and application costs, medical expenses including medical insurance, dental expenses, and living expenses during the school year and periods of recess, which sums may be ordered payable to the child, to either parent, or to the educational institution, directly or through a special account or trust created for that purpose, as the court sees fit.”750 ILCS 5/513 (a)(2). The court can consider all relevant factors before ordering the contribution to higher education costs including “1) The financial resources of both parents. (2) The standard of living the child would have enjoyed had the marriage not been dissolved. (3) The financial resources of the child. (4) The child's academic performance.” 750 ILCS 5/513 (b). In this article I will discuss the constitutionality of this statute. I will also make some suggestions on addressing higher education funding in divorce proceedings.
The constitutionality of this statute has been unsuccessfully challenged based on the claim it violates the “equal protection” clause of the Fourteenth Amendment to the United States Constitution.The 14th Amendment to the United States Constitution. The Fourteenth Amendment states “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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 laws.”. The 14th Amendment to the United States Constitution.
Married parents have no legal obligation to pay for their children’s higher education. Yet, under Illinois law, divorced parents can be compelled to pay for their children’s college education. Thus, it has been argued that by treating two similarly situated people dissimilarly it violates the equal protection clause of the Fourteenth Amendment. The 14th Amendment to the United States Constitution. In the case of In re Marriage of Kujawinski, the court upheld the constitutionality of the statute based on an equal protection challenge. In re Marriage of Kujawinski, 71 Ill. 2d. 563, 376 N.E. 2d. 1382 (Ill. Supreme 1978). This argument was again unsuccessfully made in the case of In re Marriage of Kuhn. In re Marriage of Kuhn 221 Ill. App. 3d. 1, 163 Ill. Dec. 429, 581 N.E. 3d. 380 (2nd Dist. 1991).
Although, this statute has survived constitutional challenges based on “equal protection”, it may be vulnerable to attack based on other constitutional grounds. The 14th Amendment to the United States Constitution. It can be argued the statute deprives a parent of his or her “liberty” raising their child as they see fit. The 14th Amendment to the United States Constitution. There are parents who believe struggling through college helps turn a child into a well rounded adult. There are those wealthy individuals who attribute their later success in life to working their way through college. Not to mention some of the most successful people in the world never completed college. Abraham Lincoln only had a year of formal education. Billionaires such as Bill Gates (Microsoft®) and Steve Jobs (Apple®) never finished college.
In the movie Soul Man a student is accepted to attend Harvard University but his rich parents will not pay the tuition. When he approaches the University concerning financial aid he is informed, “...they have support for parents who are poor, but not for those whose parents are assholes.” Soul Man, New World Pictures 1986. I believe parents should try and pay as much as they can afford towards their children’s education. That being said the opposite opinion is not inherently unreasonable.
Contribution hearings also show a likelihood for becoming even more contentious in the future. As people have children later in life and the economy gets worse this will add to the problems associated with paying for higher education. Parents may have a legitimate concern for their own well being. As a parent nears the retirement age she may take the position that the children will have time to pay back student loans but she needs her savings to retire. It is easier to obtain loans and grants for higher education then for adults to obtain money for retirement and medical care. A student has far more time and less obligations in order to pay back debt. The Illinois Supreme Court has discussed how one of the fundamental rights a parent has is the right to raise their children as they see fit. The Illinois Supreme Court in finding the Illinois Grandparents visitation statute unconstitutional discusses how it is presumed a fit parent will do what is best for his children. Lula v. Lula 193 Ill.2d 455, 739 N.E.2d 521 (Ill. Supreme 2000); Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002) . Thus, if a parent does not want to send their child to college, isn’t that decision constitutionally protected? Isn’t such a decision presumed to be in the child’s best interest?
In the case of Wickham v. Byrne the Illinois Supreme Court states “One of the fundamental rights protected under the Fourteenth Amendment is the right of parents to make decisions concerning the care, custody, and control of their children without unwarranted state intrusion.” Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). The court goes on to say, “Decisions concerning care, custody, and control include, for example, decisions about a child's education, religion, and general upbringing.”Wickham v. Byrne, 1999 Ill. 2d. 309, 769 N.E. 2d. 1 (Ill. Supreme 2002). These decisions are not based on equal protection but based on the fundamental right to “liberty” also provided under the 14th Amendment of the United State’s Constitution. The 14th Amendment to the United State’s Constitution.
The statute may also be vulnerable to a claim based on religious freedom under the “establishment’ and “free exercise” clauses of the First Amendment. The 1st Amendment to the United State’s Constitution. There may also be a challenge based on “freedom of speech”. The First Amendment to the United States Constitution states “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The 1st Amendment to the United State’s Constitution.
In Wisconsin v. Yoder, the United States Supreme Court held that Amish children could be exempt from compulsory education requirements.