The struggle to convince a state university that a student should pay in-state tuition, rather than out-of-state, is one that many wage but few win in Virginia. But a George Mason University senior, who is also a Navy veteran, won such a battle earlier this month. Now the case is headed to the Virginia Supreme Court, where a victory could smooth the way for ex-soldiers and sailors to pay a lower rate to attend college in the Commonwealth, which is working hard to position itself as a military friendly state.
Stephanie Kermgard, 29, moved to Charlottesville in 2004 to live with her mother. The following year she enlisted in the Navy and was stationed in Norfolk. In 2006 she married another sailor, in Norfolk, and they had a baby, in Portsmouth. The Navy transferred them to Washington state in 2007, and when their service was completed in 2011, they returned to Virginia, in Fairfax.
Virginia state education guidelines say that military members retain their Virginia domicile if they are transferred out of state by the military. At Northern Virginia Community College, John Kermgard, Stephanie Kermgard’s husband, was promptly granted in-state tuition.
But George Mason said no to Stephanie, on first review and two appeals. She then hired a lawyer and took the case to Fairfax County Circuit Court, where Judge Robert J. Smith said Kermgard’s veteran status “changes everything. She left Virginia clearly because of military orders, and she has established domicile before.” He ordered GMU to classify Kermgard as an in-state student, which would require them to refund $20,000 or more, Kermgard said.
University counsel Thomas Moncure indicated to Kermgard’s lawyer that he would appeal the case to the state Supreme Court, which will cost Kermgard thousands more in costs and fees. Moncure declined to comment, and a university spokesman said the school does not discuss open legal cases.
At George Mason, there is a $9,000-per-semester difference in tuition for an in-state student compared to an out-of-state student. Kermgard said with books and fees, the actual difference for her was $10,000 when taking four classes, and more than $11,000 per semester with five classes.
Kermgard was told in the summer of 2011, when she was first enrolling, that she would have to wait a year to even apply for in-state tuition, but that was wrong: the Virginia General Assembly, wanting to make the state more military friendly, passed a law earlier in 2011 waiving the one-year waiting period for veterans.
The battle has been a bit dispiriting for the young family. “We’re not rich people,” Kermgard said. “We’ve living off the G.I. Bill. We’re spending out of pocket money, our savings, Christmas money, most of our tax refund is spent, we’ve exhausted everything.” They estimate their legal bill will come to about $10,000.
After Kermgard enlisted in the Navy, she became a quartermaster and navigator on an amphibious assault craft. She met her future husband while on the same ship in the Middle East
Persian Gulf, as they were coming under hostile fire near Aqaba, Jordan.
When John Kermgard was transferred to Everett, Wash., in 2007, Stephanie Kermgard was also transferred as the spouse of an active duty member. She began attending Everett Community College that fall, where she was not considered an in-state student.
However, she did obtain a Washington state driver’s license, and in doing so checked off a box saying she wanted to register to vote there. Though she was required to get a local driver’s license, and never voted in Washington, GMU seized on those actions as evidence that she had ”abandoned” her Virginia domicile, though she continued to pay Virginia income taxes.
Stephanie’s tour in the Navy ended in 2009, and her husband’s in 2010, but John Kermgard stayed in Washington for another year in the reserves. In 2011, as the couple made plans to return to Virginia, Stephanie began checking out colleges that might fit with her career goal of foreign service, She narrowed her choice to a list that included Virginia and William & Mary.
But she decided on George Mason. In her application, one question asked why she was moving to Virginia. Kermgard wrote, “To attend George Mason University.” Further evidence, in GMU’s eyes, that Kermgard was moving to the Old Dominion strictly for “educational purposes,” which means not for permanent residence, and not for in-state tuition.
Kermgard said she was merely trying to express enthusiasm for attending the Fairfax university in a prospective student way. But George Mason took that as more proof she was merely trying to scam them out of tens of thousands of dollars. Though she waited until 2012 to seek in-state tuition, under the mistaken belief that there was a one-year waiting period, she was denied.
She appealed internally. Denied. She appealed to a third level. Denied. She got the final ruling in an e-mail while sitting in class. “You’ve got to be kidding me,” she thought. “I didn’t go to my classes the rest of the day. I almost dropped out.”
John Kermgard said, “It’s like David vs. Goliath, but David’s got midterms.”
The Kermgards hired Amanda DeFede, a Fairfax lawyer, who pointed out that a Virginia college is supposed to consider all factors, not just a selected few, in deciding whether someone is an in-state student. She said GMU’s decision was “inherently arbitrary, capricious and contrary to law.”
Moncure argued in court that based on Kermgard’s one answer on her application, “To attend George Mason University,” that “this court could find in favor of the University based on this one statement alone.”
Moncure also pointed to the three Virginia Supreme Court cases on in-state tuition, two involving GMU and all ruling in favor of denying in-state tuition. But in each of those cases, the students’ claims of Virginia residency were much flimsier than Kermgard’s, who lived here for three years and only left on military order.
In addition, Virginia has tried to establish itself as military friendly, both in employment and education. Specifying in state guidelines that being transferred out of Virginia does not negate one’s residency, and then in 2011 amending the law to allow veterans to get in-state tuition immediately, were big steps in that direction. A Supreme Court victory for Kermgard would take that further.
The Kermgards do not wave their military service in our faces, though it is worthy of our respect. They simply wanted to return to Virginia. In court, Moncure pointed out that Stephanie Kermgard had written, “Moving back home to Virginia allowed me to pursue a degree that fits my interests.”
Judge Smith said, “I notice you say, ‘I moved back home’...The word ’home’ is in there.” Then he ruled for the student. Subject to Supreme Court review.