On April 26, 2001, in the case of CROCKER and CROCKER, the Oregon Supreme Court rejected a constitutional challenge to ORS 107.108, the Oregon statute that allows courts to impose support obligations on divorced, separated or never married parents of 18 to 21 year old adult children attending college while effectively granting an immunity from such liability to married parents who reside together.

The Court concluded that ORS 107.108 does not violate the equal privileges and immunities clause of Article I, section 20, of the Oregon Constitution, or the Equal Protection Clause of the of the Fourteenth Amendment to the United States Constitution. The Court reversed a trial court judgment that held the statute unconstitutional under both constitutional provisions.

Background

Dennis Crocker (father) and Marianne Crocker (mother), who had three children, divorced in 1987. In 1997, when the parties' second child had turned 18 and was planning to attend college, mother moved to modify father's child-support obligation under ORS 107.108(1). Father opposed the motion, contending that the ORS 107.108 violates the constitutional principle of equal application of the law by permitting a financial obligation to be imposed upon one class of citizens---divorced, separated and never-married parents of 18 to 21 year old adult offspring who choose to go to college---that is not in like circumstances imposed on parents who are married and residing together.

Father contended that ORS 107.108, to have any validity at all, must focus on the young adult's need for parental support for higher education. If such a need is established and parents are then going to be subjected to court orders compelling the payment of adult support, there is no rational basis for the law to be selectively applied to only certain parents of young adults in need of support while exempting others, based solely on the parents' marital status. Doing so, father argued, violated the "equal privileges immunities" clause of the Oregon Constitution as well as the Equal Protection Clause of the U.S. Constitution. The trial court agreed with father and declared the statute unconstitutional. Mother then appealed to the Oregon Court of Appeals, which reversed the decision of the trial court. Crocker and Crocker, 157 Or App 651, 971 P2d 469 (1998). The Oregon Supreme Court than accepted the case for further appellate review.

Supreme Court Decision

The Oregon Supreme Court explained that a person's marital status is not an "immutable trait" (such as race or gender) that would result in discriminatory legislation based thereon being inherently "suspect." To withstand constitutional scrutiny where the distinctions in the application of the law are based on other than immutable traits, it is necessary only that the discriminatory legislative classification be based on rational criteria. In this respect, while ORS 107.108 results in a discriminatory arrangement that treats married parents who live together differently from all other parents, such discrimination is permissible and will not be ruled by the Court as being unconstitutional if there is a "rational basis," as perceived by the Legislature, for treating one class of married parents differently from others.

Here, the Court holds that the discriminatory arrangement inherent to ORS 107.108 survives constitutional scrutiny since there could be a rational basis, from the Legislature's perspective, for enacting a statute that exempts married parents residing together from all legal responsibilities for support of adult children attending college, regardless of the degree of need that the adult child may have, while allowing all other parents to such adult children to be compelled to pay such support.

As explained by the Court: "A legislator rationally could believe that households in which the parents do not live together might need judicial assistance in making educational decisions, because the absence of cohabitation itself likely reflects a lack of harmony and consensus in parental decision-making." Accordingly, the Court held that ORS 107.108(1) did not violate Article I, section 20, or the Equal Protection Clause. The Court therefore affirmed the Court of Appeals' decision and reversed the trial court's judgment.

To see the full text of the Court's decision, click here.

Closing comments

The Oregon Court of Appeals recently decided the case of McGinley and McGinley, 172 Or App 717, ___P2d___ (2001). McGinley raised several constitutional issues about ORS 107.108 that had not been raised in the Crocker case. However, the Court of Appeals, as it did in the Crocker case, rejected the constitutional challenges and continued to uphold the validity of ORS 107.108. McGinley will now go up for Oregon Supreme Court review. So all hope is not to be lost. While there is no certainty, and perhaps not even a probability, there is always at least a possibility that the Oregon Supreme Court might accept the legal theories advanced in McGinley even though having rejected the argument made in Crocker. We shall see.

As for the Crocker case, unless Dennis Crocker decides to seek further review by the United States Supreme Court, which is presently being considered, the decision of the Oregon Supreme Court will bring this case to an end. Dennis and his attorney, Lawrence D. Gorin, are extremely appreciative of the support and encouragement that has been received from citizens throughout the state over the past couple of years while Dennis's case has been making its way through the appellate court system. We thank you all.

Lawrence D. Gorin
Law Offices of L.D. Gorin
621 S.W. Morrison St., Suite 350
Portland, Oregon 97205
Phone: 503-224-8884 (afternoons, Pacific time)
Fax: 503-274-0818
E-mail: LGOregon@pcez.com

Latest news regarding challenge to Oregon's compelled parental support law for college-age young adults.........

Crocker and Crocker is the Oregon case challenging the constitutionality of Oregon's statute, ORS 107.108, that allows courts to compel divorced parents to pay support for adult offspring attending college (but which leaves married parents completely exempt from any such obligation). Leading the challenge is Dennis Crocker, a Portland, Oregon, divorced father of adult daughters.

For general background information, see the DADS Website.

Latest event, as reported by Attorney Lawrence D. Gorin:

On November 8, 1999, Dennis Crocker's case was presented to the Oregon Supreme Court for oral argument. Arguing the case on Dennis's behalf was his attorney, Lawrence D. Gorin of Portland, Oregon.

According to Attorney Lawrence D. Gorin, the presentation when well, given that the case involves an uphill battle. We are challenging a law that has been on the books here in Oregon for over a quarter of a century. It has become very ingrained by the bench, bar and general public as a noncontroversial, accepted way of doing things. The notion of changing --- indeed, completely overturning --- such an accepted part of our domestic relations culture is not something that judges are eager to do.

So far, the supreme courts in New Hampshire, Indiana, Iowa, Washington, Illinois, Vermont and Missouri have all rejected constitutional challenges to their states' college-related adult support statutes. Only one state --- Pennsylvania --- had the wisdom and intellectual courage to declare that state's college-related adult support statute unconstitutional. And even then, it was a split opinion (4 in the majority; 2 dissenting). See Curtis v. Kline, 542 Pa 249, 666 A2d 265 (1995).

So, while we are hopeful for a favorable outcome, we cannot realistically be too optimistic that the majority of the Oregon justices will be willing to declare ORS 107.108 unconstitutional.

There is no deadline for decision, but a good guess is that a decision will be handed down within the next 3 to 6 months. You can follow the release of all cases at the Oregon Supreme Court page. A useful service to alert anyone of web page changes is "Mind-it" at http://mindit.netmind.com/.

To see Dennis Crocker's "Brief on the Merits," click here. In addition you can view the Brief on the Merits on Behalf of Petitioner on Review of the Decision of the Court of Appeals on Appeal From a Judgment of the Circuit Court for Multnomah County, click here.

Dennis and his lawyer have received many communications expressing support and good wishes, all of which are deeply appreciated. We know (as do most reasonable and rationally minded people who have studied the issue) that our position is legally and logically sound and correct, however unpopular it may be in other quarters. Dennis Crocker is to be commended for his willingness to pursue the case, doing so at great personal expense, financially as well as emotionally.

Regards to all.....

Lawrence D. Gorin
Law Offices of L.D. Gorin
621 S.W. Morrison St., Suite 350
Portland, Oregon 97205
Phone: 503-224-8884 (afternoons, Pacific time)
Fax: 503-274-0818
E-mail: LGOregon@pcez.com

Crocker and Crocker is the Oregon case challenging the constitutionality of Oregon's statute, ORS 107.108, that allows courts to compel divorced parents to pay support for adult offspring attending college (but which leaves married parents completely exempt from any such obligation). Leading the challenge is Dennis Crocker, a Portland, Oregon, divorced father of adult daughters.

CHRONOLOGY......

October 17, 1997.
On motion of Dennis Crocker, Multnomah County (Portland, Oregon) Circuit Court Judge Paula J. Kurshner concludes that ORS 107.108 violates the Equal Protection Clause of the US Constitution, Fourteenth Amendment, as well as the comparable provision of the Oregon Constitution and, therefore, is unconstitutional.

November 7, 1997.
Mother files notice of appeal to the Oregon Court of Appeals.

December 16, 1998.
Oregon Court of Appeals rules that ORS 107.108 is constitutional, thus reversing the trial judge's decision. Click on this link to see the Court of Appeals decision in Crocker and Crocker, 157 Or App 651, 971 P2d 469 (1998).

February 16, 1999.
Dennis Crocker files a Petition for Supreme Court Review, explaining how and why the Court of Appeals erred in its reasoning and asking the Supreme Court to accept the case for further review. The Supreme Court did so on April 13, 1999, inviting the parties to then submit further legal briefs "on the merits" of the legal issue in dispute.

June 8, 1999.
Dennis Crocker files his Father's Brief on the Merits with the Oregon Supreme Court. (By the way, in the Oregon judicial system, the Brief on the Merits is far more important than the Petition for Review. But both contain material worth reading.)

Current happenings.....

Marianne Crocker filed her Mother's Brief on the Merits. In essence, she argues that the Oregon law is constitutional, repeating the same flawed reasoning as found in the Court of Appeals decision of last year. (Click here to see Court of Appeals decision.)

According to Mrs. Crocker, "The state has an interest in the well being of its adult children of divorced parents and in ensuring that those adult children have the same opportunities as children of intact families in achieving education and training. ORS 107.108 is a tool for the courts to use to help keep the adult children of divorce in the same position they would have been in had their parents' marriage remained intact."

This argument involves a lot of assumptions and raises critical questions that go unanswered. For example, Mrs. Crocker apparently assumes that adults who are in need of financial assistance from parents in order to pursue higher education, and whose parents are divorced, separated or never-married, are somehow "more needy" than adults who are in need of financial assistance from parents in order to pursue higher education but whose parents are married.

In essence, need is need. Yet Mrs. Crocker fails to explain how and why it is valid and rational to segregate young adults in need of parental assistance for college education into two segments, based on the marital status of their parents, giving to one segment of needy young adults a legal advantage that is not afforded to all other needy young adults. (And why, correspondingly, it is rational for the state to impose a court-compelled financial obligation on one segment of parents---those who are divorced, separated or never-married---while granting complete immunity from such an obligation to another segment of parents---those who happen to be married---all based solely on marital status and without regard to the issue of financial need or ability to pay.)

Mrs. Crocker declares that "The state has an interest in the well being of its adult children of divorced parents." But nowhere does she explain why the state's interest is restricted in this manner, based on the marital status of the adult children's parents. Why is it that the state does not have an equal interest in the well being of all its adult children regardless of the marital status of their parents?

Bottom line question: Is the statute's discriminatory classification of segregating, based on the marital status of their parents, adults ages 18 to 21 who are in need of parental support for post-secondary education, reasonably related to accomplishing the state's interests in (1) having a well-educated populace for all its citizens and (2) having all parents support their adult children who choose to go to college? The brief that Mrs. Crocker has filed with the court fails to answer the question.

As matters now stand, the case of Crocker and Crocker will be presented to the Oregon Supreme Court in Salem, Oregon, through oral arguments, tentatively scheduled for some time November, 1999 (specific date yet to be assigned). After oral argument, the case will be taken under advisement, with the court then rendering its decision "in due course," which could mean a couple of months or a couple of years (the court does not have any deadline for rendering decisions).

When the decision is finally made, it will be published on-line at the website of the Oregon Supreme Court.

For more information about Oregon's post-secondary education child (well, actually, adult) support law, check out the DADS website.

MEANWHILE........
Unfortunate news from Missouri........ On Aug. 24, 1999, the Missouri Supreme Court handed down its decision rejecting the constitutional challenge to Mo. Rev. Stat. 452.340, sec 5, (Missouri's post-18 college support law). In the case of KOHRING v. SNODGRASS, the court held as follows:

"Because section 452.340.5 involves no suspect classifications and impinges on no fundamental right, it will withstand constitutional muster so long as it is rationally related to a legitimate state interest. . * * * Mother correctly asserts that the state has a legitimate interest in securing higher education opportunities for children from broken homes. As this Court stated in Leahy v. Leahy, 858 S.W.2d 221 (Mo. banc 1993), "[t]he children of an existing marriage derive many benefits that [children] of a dissolved marriage [are] deprived of sharing," id. at 230, and therefore, the state has a legitimate interest in "protecting the children of a marriage that is dissolved." Id. at 229. Section 452.340 rationally advances that legitimate state interest by requiring financially capable parents to lend support to their children wishing to pursue higher education. Additionally, the statute touches only upon economic interests. For these reasons, there is no constitutional violation."

Of course, what is NOT explained is just why it is that the state apparently does not ALSO have a comparable "legitimate interest" (with laws allowing for compulsory court orders to back it up) for protecting the adult children of parents who are still married to one another. Apparently, the state of Missouri does not have any interest (legitimate or otherwise) in requiring financially capable MARRIED parents to "lend" support to their adult children wishing to pursue higher education. Those parents are free to make their own determinations regarding financial support of their adult children, including the ability to bid their adult children a "fiscal farewell," and do so with total immunity from governmental intervention no matter how unreasonable or outrageous the parents' actions might be and no matter how significant and real the adult child's need for financial assistance may be. Young adults who legitimately need parental financial assistance for college but whose parents are married are left to their own peril. Unless, of course, they can persuade their parents to get divorced. Then, and only then, will the government get involved, and not simply because of the adult child's financial need but only because the parents are divorced. I am unable to see the logic of this rationale.

As a matter of constitutional logic, the law should be applied equally across the board. Either the law requires ALL parents of college-age adult offspring who need parental financial assistance to pursue higher education to be subject to compulsory governmental imposed support obligations (regardless of marital status), or you make ALL parents exempt from such a liability (regardless of marital status).

Again, the real issue is NEED. If the state wants to have a law permitting court-compelled parental support obligations for adult offspring for college purposes, the underlying basis should be simply the adult offspring's need for the money (coupled with, I assume, evidence demonstrating the need for a court order to secure such help), WITHOUT REGARD to marital status of the parents. After all, need is need. If the need is established, what difference does it make that the parents are divorced as opposed to being married? Why are needy adult children of married parents given no recourse under the law, while needy adult children of divorce parents are, effectively, accorded a legal remedy against their parents?

On a personal basis, I believe it is better public policy that the government not be involved in compelling parents, regardless of marital status, to provide adult support based on the adult offspring's decision to attend college. I just do not see this as a proper subject for governmental involvement. And this appears to be the position of about 2/3 of the states. However, if a state IS going to enact a law allowing for adult support obligations to be imposed parents, it should be apply equally, across the board, with all parents, regardless of marital status, being subject to the long arm of the law.

The arguments in both the Oregon case as well as the Missouri echo those that were advanced in the Pennsylvania Supreme Court's decision in Curtis v. Kline, 542 Pa 249, 666 A2d 265 (1995), which declared Pennsylvania's post-secondary support law as unconstitutional. (To read the Appellant's Brief in Curtis v. Kline, click here.)

Effect of Missouri decision on what's happening in Oregon . . . .

The Missouri decision (as well as the Pennsylvania decision that went in the other direction) will have no "official" impact on what the Oregon Supreme Court does in the case of Crocker and Crocker. However, from a more practical perspective, it certainly would have been nice had the Missouri court accepted Steve Snodgrass's arguments and declared the Missouri statute unconstitutional. Indeed, we would like to think that it perhaps might have made it a bit easier for the Oregon Supreme Court to then declare Oregon's statute unconstitutional. Nonetheless, the Oregon Supreme Court is an independent court that historically has not been reluctant to make decisions that might be viewed in some quarters as unpopular. Let's hope it sees its way clear to do so again.

Lastly, I want to extend compliments to Steve Snodgrass and his attorneys, Jack J. Cavanagh, Jr., and Paul J. Vaporean of St. Louis, MO, for having the courage and dedication to take on the challenge (and incur the expense) of trying to reform the law on this particular subject. Although the Missouri Supreme Court did not make the "right" decision, I know that the case was exceptionally well-presented by Mr. Cavanagh and Mr. Vaporean.

To see how the states line up on the issue of compelled parental support for adult offspring attending college, check the following websites:

• Chart from NCSL summarizing state laws re post-secondary education support.

• Chart from ABA showing state laws re custody and child support.

• Family Law Advisor summary of state laws re post-secondary support.

Lawrence D. Gorin
Law Offices of L.D. Gorin
621 S.W. Morrison St., Suite 350
Portland, Oregon 97205
Phone: 503-224-8884 (afternoons, Pacific time)
Fax: 503-274-0818
E-mail: LGOregon@pcez.com