AGO 1990-G-0103.

• Case Date: January 03, 1990
• Court: Idaho

Idaho Attorney General Opinions 1990. AGO 1990-G-0103. January 3, 1990OPINION NO. 1990-G-0103Board of Bannock County Commissioners P.O. Box 4016 Pocatello, ID 83205-4016 THIS CORRESPONDENCE IS A LEGAL GUIDELINE OF THE ATTORNEY GENERAL SUBMITTED FOR YOUR GUIDANCE Re: Mandatory Foreign Student Health Insurance Dear Bannock County Commissioners: You recently asked our office the question, "whether or not the colleges and universities in the state of Idaho could, without violating any laws, compel all foreign students to maintain health insurance on themselves and their families while they attend school?" As you may be aware, none of the institutions of higher education under the jurisdiction of the State Board of Education currently imposes different requirements for foreign students than for other students with respect to student health insurance. Each institution is permitted to contract with individual health insurance carriers and the respective insurance policies have varying requirements. None of the institutions has absolutely mandatory health insurance for all students. The University of Idaho and Lewis-Clark State College have health insurance which is completely optional, but do require accident insurance for all students. Boise State University and Idaho State collect a fee for health insurance from all students upon registration, but students may thereafter cancel the insurance and receive a refund. There is no mandatory accident insurance. The policy you have suggested singles out foreign students and does raise the issue whether such a policy would be consistent with the Equal Protection Clause of the fourteenth amendment to the United States Constitution. In analyzing state legislation or regulations under the Equal Protection Clause, the first and most obvious step is determining "whether the regulations in fact discriminate" against a particular class. Watkins v. U.S. Army, 875 F.2d 699, 712 (9th Cir. 1989). In this case, the suggested policy no doubt discriminates against foreign students and their dependents. The next, and often the most critical step in the analysis, is determining which level of judicial scrutiny will be applied to the policy. The United States Supreme Court has recognized three levels of scrutiny, depending upon the nature of the classifications and the interests involved. At the upper or "stricter" end of the spectrum is the "strict judicial scrutiny" test, and at the other end is the "rational basis" test. "In order to withstand strict judicial scrutiny, the law must advance a compelling state interest by the least restrictive means available." Bernal v. Fainter, 467 U.S. 216, 219 (1984). A law or regulation which is subject to "strict scrutiny" is seldom sustained. As has been noted, "strict-scrutiny review is 'strict' in theory but usually 'fatal' in fact." 467 U.S. at 219, n.6, citing...