Five is a Crowd: A Constitutional Analysis of the Boston Zoning Amendment Prohibiting More Than Four College Students From Living Together

aids victims not protected class). amendment should satisfy the additional evidentiary requirement of the the court reasoned that the that feature binge drinking.9 critics deferential under the federal constitution; federal courts uphold legislation as ii. history iv. conclusion does not prevent five high school dropout drug dealers from living together, university of new hampshire). test applied when abortion rights infringed), and san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 35 next door. you tell them that; they don't care. it's having your wife go out to homosexual couples are financially interdependent. id. at 964-65. rational basis test when legislation infringes important right); macavan baird, recent case, individual ordinance bore no rational relationship to the stated goals of reducing noise, holding of irrationality.119 accompanying text. 149. see supra notes 82-87 and accompanying text (discussing california's adamson decision). family. id. at *3. such shared living arrangements are common in vietnam and amongst local vietnamese "it's 11:30 at night and you want to go to bed, but there's a party going on review); lawrence friedman, ordinary and enhanced rational basis review in the massachusetts supreme 135. see bloomsburg, 912 f. supp. at 805 (noting college students not victims of historical prejudice or 54. see, e.g., calloway v. district of columbia, 216 f.3d 1, 7 (d.c. cir. 2000) (reasoning district of provisions contained in state constitutions in similar fashion.46 108. id. at 258. like other cities that have passed similar zoning ordinances, the city of ames is a college when determining if a right is fundamental or not, federal and state courts 2. rationality of zoning ordinances targeting unrelated groups of people ordinance specifically discriminated against students based on their one such problem is the friction between boston's permanent residents and fundamental right to education); williams v. sec'y of executive office of human servs., 609 n.e.2d 447, 457 massachusetts courts are unlikely to follow the reasoning the california less restrictive means. id. at 18-19. reasoning). constitutional issues.22 the because fewer restrictive zoning ordinances have the city of boston implemented the amendment together violated the fundamental right to privacy specifically protected by an ordinance rationally related to the preservation of family neighborhoods flaws of rational basis with bite: why the supreme court should acknowledge its application of heightened furthermore, 448 (manuel, j., dissenting). involved federal and state constitutional challenges to a zoning ordinance that 131. kirsch, 626 a.2d at 381 (majority opinion). compare id. at 374 (considering ordinance applicable to the boston city mass. sept. 22, 2003) (outlining plaintiff's claims at summary judgment stage of litigation). annual economic impact report, at ii (2008) (concluding michigan residents over $13.3 billion richer in character); ames, 736 n.w.2d at 261 (reasoning large groups of young adults living together detract from couples are less financially independent on one another, involved no rational relationship because many residential neighborhoods). friction between college students and permanent residents, otherwise known as note 71 and accompanying text (describing sjc's rejection of most fundamental right arguments). 62. id. at 799. the ordinance required property owners to obtain a license from the town in order to rent massachusetts constitution protects the fundamental right to privacy. see moe v. sec'y of admin. & fin., 417 presume that student residents lack a commitment to and respect for their suggests that an the supreme court has interpreted the fourteenth amendment to the united acknowledge some students make good neighbors); cravatts, supra note 17 (arguing amendment unfairly and because their households each included numerous unrelated adults.115 of age not protected class); williams, 609 n.e.2d at 456-57 (declining to extend protected class status to fundamental right.72 considering most state courts' classification as a commitment. id. 1996). under rational basis scrutiny, the challenged legislation must have a rational relationship to a legitimate people to mary ann's . . . at closing time, so that you're not awakened at 2 a.m. to improve residential quality of life. this reasoning should establish a rational crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm 68. see, e.g., rodriguez, 411 u.s. at 35 (1973) (holding right to education not fundamental because u.s. 14 (doubting amendment's potential to curb student rowdiness). can attack the amendment for being both overinclusive and underinclusive.161 and state constitutions. the federal rational basis test only requires a upheld the ordinance under the rational basis test. id. at 459-61. members have a fundamental right to live together that unrelated individuals do not possess. id. at 499. was both overinclusive and underinclusive and the stated goals could be achieved through more direct means. 120. see ames rental prop. ass'n v. city of ames, 736 n.w.2d 255, 262 (iowa 2007) (hinting outcome sexual orientation or mental disability.141 municipal clerks denied their applications for marriage licenses. goodridge, 798 n.e.2d at 949-50. who shared living arrangements.32 determined whether unrelated people have a fundamental right to live together the landowner and the students 2009] constitutionality of boston's student-specific zoning amendment 239 hearing bd., 621 a.2d 1208, 1212 (pa. commw. ct. 1993) (rejecting higher scrutiny for student-specific 102. see brener, supra note 79, at 450-63 (examining different constitutional rulings regarding restrictive against women before applying heightened scrutiny to gender classification); mass. bd. of ret. v. murgia, 427 b. do students have a fundamental right to live together? how university of colorado students' behavior negatively impacts residential neighborhood); henry wechsler disruption.15 http://www.americanthinker.com/2008/04/boston_threatens_property_righ.html (noting zoning amendment's may fail the rational basis test even though ordinances that target unrelated same factors when deciding scrutiny for disability classifications under new mexico constitution); hewitt v. in 165. see supra notes 96-98 and accompanying text (discussing goodridge case). quasi-suspect status for gays, lesbians, and bisexuals?, 45 kan. l. rev. 953, 969 (1997) (arguing court constitution. adamson, 610 p.2d at 439. noting this amendment, the court reasoned protection of the right to scrutiny in the federal courts, 59 vand. l. rev. 793, 815 (2006) (reporting thirty percent strict scrutiny of protected class status.139 right); town of durham v. white enters., 348 a.2d 706, 708-09 (n.h. 1975) (implicitly adopting belle terre shared expenses, chores, and nightly dinners together. id. conclusions about homosexual families); see also id. at 998 n.21 (cordy, j., dissenting) (criticizing majority for policy concerns, critics have raised serious issues regarding the amendment's and assumptions regarding households of unrelated persons); state v. baker, 405 a.2d 368, 375 (n.j. 1979) evidentiary support and disregards potential overinclusiveness and underinclusiveness). court's decision in belle terre forecloses the argument that unrelated students unrelated college students), with vill. of belle terre v. boraas, 416 u.s. 1, 2 (1974) (examining ordinance fundamental right to counsel under fourteenth amendment based on language of sixth amendment); mills v. county, 626 a.2d 372, 381 (md. 1993) (striking down student-specific zoning ordinance under most crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm n.e.2d 146, 151 (mass. 1988) (stating massachusetts constitution requires heightened scrutiny when suspect on march 12, 2008, the boston zoning commission amended the boston narrow protection of families in belle terre, 83 b.u. l. rev. 875, 887-96 (2003) (describing facts and students fan out, boston globe, dec. 10, 2006, at b8 (noting ross's leadership in passing ordinance). at 962-63. lastly, the court held that the goal of preserving financial resources, on the basis that homosexual which the law aims." id. at 351. in 2003, plaintiffs from three vietnamese families challenged isd's 2008, 23:05 est) (relating personal accounts from hearing attendees). proponents of the amendment included crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm reasons college students dropout). curtail bingeing, boston globe, nov. 23, 2004, at b2 (describing city ordinance requiring liquor stores to goodridge, the court considered whether denial of marriage licenses to same- the california constitution.87 town, home to iowa state university, and the city enacted the ordinance to combat problems presumed to result prior to 2003, boston's inspectional services department (isd) relied on the governmental interest, the court indicated some skepticism by noting that the enabling legislation and statutory at 540 (defining intermediate scrutiny). centered, http://brighton-community.blogspot.com/ (june 9, 2008, 00:06 est) (highlighting student residents apply the normal rational basis test, judicial review was more exacting.98 space and parking requirements that did not apply to households with non- the court upheld the ordinance as constitutional, specifically (requiring substantial relationship when reviewing classifications in zoning ordinances under new hampshire municipality's goals--preservation of family values, maintenance of property in coming to this conclusion, the court 26. see infra part iii. to live together.79 when a house falls within this a.2d at 383 (chasanow, j., dissenting). relationship), with heller v. doe, 509 u.s. 312, 320 (1993) (noting state has no evidentiary obligations under the boston zoning commission unanimously approved the amendment and courts apply an identical rational basis test, some state courts apply stricter a number of state courts explicitly adopted the belle terre rational basis claims in the supreme court from the 1971 term through romer v. evans, 32 ind. l. rev. applying the 82. see brener, supra note 79, at 454 n.39 (noting massachusetts has not determined whether unrelated after years of attempting to control applying the federal constitution, two federal courts have (r.i. super. ct. dec. 12, 1994). id. at 260 (majority opinion). the court rejected this argument, noting the rational basis test did not require the h. friedelbaum, state equal protection: its diverse guises and effects, 66 alb. l. rev. 599, 604-29 (2003) class status beyond federal scope). 154. see, e.g., vill. of belle terre v. boraas, 416 u.s. 1, 9 (1974) (holding protection of community's communal living would be "pleasant, convenient, promotive of scholarly exchange, and within their amendment does not infringe on a fundamental right by restricting unrelated unconstitutionally discriminate against college students by singling them out crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm the only outlier, as it held that restricting unrelated persons' rights to live rights encompassed within the fundamental right to privacy.70 boren, 429 u.s. 190, 197 (1976) (applying intermediate scrutiny to gender classification), with commonwealth test. been the subject of discrimination throughout history.51 for example, the amendment is overinclusive because it prevents perfectly article 2 and article 2a regarding the definition of "family" (filed dec. 5, 2007) (offering initial from problems associated with student behavior. see thomas d. russell, between town and gown: the rise boston globe, sept. 2, 2005, at b2 (highlighting stricter enforcement of housing standards). 232 suffolk university law review [vol. xliii:217 *2 (e.d. pa. may 11, 1992) (reasoning student classification requires no heightened scrutiny). enhanced rational basis test is not as deferential to legislative decisions.159 applies heightened rational basis test to classifications based on sexual orientation); jeremy b. smith, note, the overinclusiveness does not render marriage statute unconstitutional). the court found no rational relationship national voting age population. compare karlo barrios marcelo & emily hoban kirby, quick facts article 2 and article 2a regarding the definition of "family" (filed dec. 5, 2007) (noting sang vo a reviewing court is highly unlikely to grant college students protected class class or fundamental right involved); kadrmas v. dickinson pub. sch., 487 u.s. 450, 462-63 (1988) (applying (describing menino's support for amendment). fundamental right to live together under the massachusetts constitution.147 federal 128. id. at 373; see meera somasundaram, p.g.'s mini-dorm law is rejected; court says housing court reasoned that the township passed the ordinance based on the mere the amendment is likely to survive the rational basis test under both federal construction of additional student housing); scott van voorhis, nu sleeps on new dorm sites, boston belle terre, 416 u.s. at 8-9 (assuming unrelated cohabitants lead to more traffic, congestion, and noise), with though likely to pass constitutional muster, there are still many other versions of the test by explicitly noting the added stringency or subtly using at 795 (stating supreme court considers history and tradition). challenged the constitutionality of a township's zoning ordinance that (mass. 1993) (requiring commonwealth to provide evidence and not solely assumptions to pass rationality different type of ordinance, came to the same conclusion in bloomsburg the zoning board granted a special exception. id. the ordinance covered all unrelated students attending a college or university, as well as incoming students and students on semester or summer break. id. at *1 n.1. of undergraduate students were above the legal voting age of eighteen in fall 2007. see id. (showing 566,823 the zoning code by explicitly stating that five or more full-time undergraduate 166. see goodridge, 798 n.e.2d at 963 (requiring commonwealth provide evidence supporting its applicable to all unrelated people). specific language to racial discrimination); see also u.s. const. amend. xiv, � 1 (granting all citizens equal contain no less than seventy squared feet per occupant and required an on-site parking spot for each occupant. hearing, proponents and opponents gathered in droves to voice their opinions a subsequent section. infra part ii.b.3.a. restrictions violated rights of student renters, wash. post, june 29, 1993, at b7 (describing reaction to based its finding of rationality on the fact that lower merion had actually done an investigation showing crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm rational basis test more stringent than federal); taylor v. town of plaistow, 872 a.2d 769, 772-73 (n.h. 2005) goodridge suggests that the sjc may apply an enhanced rational basis test 160. see goodridge v. dep't of pub. health, 798 n.e.2d 941, 960-65 (mass. 2003) (considering despite the objections of property owners and students, zoning amendment); see also editorial, hub can't afford to be lease police, boston herald, jan. 4, 2008, at rational basis test under wisconsin constitution); shaman, supra note 41, at 17-18 (noting some states apply notes 9-10 and accompanying text (highlighting poor student behavior and resulting neighborhood friction). legality.17 discrimination against college students in boston or in the united states as a 92. see heller, 509 u.s. at 320 (1993) (holding state has no evidentiary obligation to prove rationality); state lodging-house statute when pursuing legal action against proprietors of determining if a particular classification warrants heightened scrutiny.48 authority statistics, almost 13,000 undergraduate students live off-campus.8 76. belle terre, 416 u.s. at 7. the plaintiffs claimed the ordinance violated a person's right to travel and 37. see richard thompson, can occupancy rule stop students from doubling up?, boston globe, 75. belle terre, 416 u.s. at 2-3. the students were all enrolled at the state university of new york at unrelated persons is not a fundamental right under the federal constitution.143 numerous other policies aimed at curbing unruly student behavior. see davis, supra note 17, at 157-86 law infringing on fundamental right to vote on equal terms); shaman, supra note 41, at 15 (noting most state prohibited repeatedly driving down certain streets, an activity that teenagers and young adults commonly students do not constitute a family.13 236 suffolk university law review [vol. xliii:217 square when the parties break up."1 discrimination); smith, 1992 wl 112247, at *2 (recognizing lack of discrimination against college students). 44. compare adam winkler, fatal in theory and strict in fact: an empirical analysis of strict boston globe, june 20, 2008, at a13 (detailing boston college's plan to house all undergraduates on conclude that their respective state constitutions provide more protection to a together cannot be distinguished from the rights of unrelated persons, in (examining state equal protection clauses affording greater protection than federal constitution). compare stricter rational basis test). see also clark neily, no such thing: litigating under the rational basis test, 1 n.y.u. j.l. & liberty 897, crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm boston's history). the latest boston redevelopment authority (bra) statistics place enrollment at 117,974 112247, at *3 (e.d. pa. may 11, 1992) (discussing evidence of college students detracting from residential rational basis test requires evidentiary support for any purported rational basis); ladue v. horn, 720 s.w.2d 745, 750 (mo. ct. app. 1986) (dismissing involvement of fundamental hunting (miramax films 1997), available at http://www.youtube.com/watch?v=ymshlkb8u3s (portraying court's decision). a trial court and an intermediate appellate court had previously upheld the student-specific white enters., 348 a.2d 706, 707 (n.h. 1975) (regarding ordinance passed by town of durham, home of the supreme court has highlighted a number of factors to consider when than hard-partying college students do.163 2009] constitutionality of boston's student-specific zoning amendment 223 grandchildren. id. at 495-98. see generally pala hersey, comment, moore v. city of east cleveland: the a landowner challenged the ordinance as disguised discrimination iowa supreme court also considered the issue. ames rental prop. ass'n. v. city of ames, 736 n.w.2d 255, crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm u. ill. l. rev. 847, 867-68 (2005) (contending restrictive ordinances infringe on right to privacy as expanded in december 2007, city councilor michael ross proposed the student- zoning amendment); small property owners of america, boston city council's student occupancy limit is 147. see supra note 79 (noting massachusetts courts have not considered constitutionality of restricting 132. kirsch, 626 a.2d at 381. similar to the michigan supreme court in dinolfo, the maryland court of massachusetts constitution protects); superintendent of belchertown state sch. v. saikewicz, 370 n.e.2d 417, the amendment may be so arbitrary and irrational that it fails even the most to homosexuals did not rationally relate to the commonwealth's goal of boston has plenty of evidence demonstrating that dwellings overcrowded with the amendment directly restricts this right by limiting college students' (outlining supreme court's protection of fundamental rights under due process and equal protection). 28, 2005, at 39 (describing economic advantages of college towns). of the rational basis test when considering classifications based on sexual orientation. see jerald w. rogers, likely to pass this test as well. the city of boston has evidence to support the classification); craig, 429 u.s. at 197 (employing intermediate scrutiny to gender classification); graham v. units to three or more unrelated people and made licensed property owners responsible for regulating their decisions upholding municipal restrictions on young adults' behavior.64 12. see schworm, supra note 11 (explaining zoning amendment's approval). see generally cynthia m. a. what is a protected class? goodridge v. department of public health95 populations); peter schworm, students face caps in city housing, occupancy limits target off-campus have a fundamental right to live together under the federal constitution. 168. see supra note 9 (documenting boston residents' complaints about student behavior). constitution); ferdon v. wis. patients comp. fund, 701 n.w.2d 440, 461 (wis. 2005) (acknowledging stricter on the other hand, the amendment is underinclusive because it consequently, the court applied strict scrutiny to by 300 kids, all plastered, screaming and shouting at each other as they parade from civil marriage, 36 rutgers l.j. 1381, 1399-403 (2004) (recognizing massachusetts employs slightly individual's right to free association is sufficiently important, so legislation that the supreme court comes out of the closet, 15 colum. j. gender & l. 355, 370-78 (2006) (discussing 258-63 (iowa 2007) (noting legitimate state interest in preserving family neighborhoods); lantos v. zoning 167. see wechsler, supra note 5, at 429 (concluding college students lead to higher rate of community dwellings will help protect residential neighborhoods because people generally 220 suffolk university law review [vol. xliii:217 from living together.108 blood, marriage, or adoption, living together as a single housekeeping unit in a dwelling unit." id. at 834 n.1. abortion fundamental and applying strict scrutiny); skinner v. oklahoma, 316 u.s. 535, 541 (1942) (deeming evidence does not need to support legislative rationale.92 the court the city of boston does not need to present factual evidence legal battle that may prove unnecessary in the end. classification not suspect class under u.s. constitution). as a local example, massachusetts courts apply strict irrationally underinclusive). crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm http://brighton-community.blogspot.com/2008/03/boston-zoning-commission-passes-rule.html (march 12, college students not protected class); smith v. lower merion twp., civ. a. no. 90-7501, 1992 wl 112247, at 164. see friedman, supra note 93, at 418 (stating enhanced rational basis test requires commonwealth to amendment to the california constitution.149 state courts, including in smith v. lower merion township,57 similar hesitancy towards extending protected class status under the estate agent, a tractor-business operator, and a graduate biochemistry student, amongst others. id. the group exacting rational basis test); murphy v. comm'r of dep't of indus. accidents, 612 n.e.2d 1149, 1156-57 campus); thomas c. palmer, jr., condo residents won't oppose suffolk dorm, school agrees to limit its right to privacy because belle terre had no valid concern as to residents' marital status. id. code, a party must first file a petition to amend. see barr, supra note 12, at 182 (describing petition process). because of the deeply personal considerations involved. id. at 16. applying strict scrutiny, marshall reasoned to legislation that infringes on an individual's right to freedom of association.157 v. king, 372 n.e.2d 196, 206 (mass. 1977) (holding massachusetts constitution mandates strict scrutiny of the when legislation does not affect a protected class or infringe on a agreed not to apply the lodging-house statute to unrelated roommates who 148. see supra notes 79-81 and accompanying text (highlighting state courts' reliance on belle terre). 961. neighbors.162 fundamental right protection under the massachusetts constitution beyond that state constitutional law 12 (2008) (stating supreme court applies strict scrutiny if legislation infringes barr, boston zoning: a lawyer's handbook (2007) (explaining boston's zoning laws). universities to list where all their off-campus students live. see adrienne p. samuels, tensions grow as the zoning ordinance.88 most state courts have either explicitly or implicitly followed the court's hypothetical rational relationship. to pass this test, the city of boston needs specific zoning ordinance did not pass the rational basis test.127 15. see boston city council, order regarding a text amendment for boston zoning code scrutiny); wygant v. jackson bd. of educ., 476 u.s. 267, 274 (1986) (applying strict scrutiny to racial having distinguished belle terre, the court concluded student- warrant protected class status). but see supra note 88 (noting some scholars believe supreme court has 1208, 1211-12 (pa. commw. ct. 1993) (employing rational basis review of student-specific zoning ordinance). the boston zoning amendment would likely survive the federal rational litter, and parking problems.130 (discussing moore decision). the moore court distinguished belle terre by noting that the belle terre on the amendment.38 34. see id. at *6 (distinguishing lodging from shared living situations). even though the goals were legitimate, the court determined no rational conscientious); chuck green, students graduate to condos, wash. post, nov. 8, 2003, at f1 (describing 107. ames rental prop. ass'n. v. city of ames, 736 n.w.2d 255, 258-63 (iowa 2007). the plaintiff also 139. see supra notes 53-54 and accompanying text (describing federal courts' reluctance to expand scope people who presumably should be subject to regulation.91 67. see shaman, supra note 41, at 79-241 (comparing rights protection under federal and state cernkovich, juvenile delinquency, college attendance, and the paradoxical role of higher fictional verbal fisticuffs between local "townies" and harvard student). id. at 374. the ordinance covered all unrelated students enrolled at an "institution of higher learning." id. protection for gender under oregon constitution). and state courts are likely to reject the argument that college students represent 161. see kirsch v. prince george's county, 626 a.2d 372, 381 (md. 1993) (striking down student-specific legislation targeting homosexuals); city of cleburne v. cleburne living ctr., 473 u.s. 432, 442-46 (1985) supreme court's fractured paean to the extended family, 14 j. contemp. legal issues 57 (2004) note, romer v. evans: heightened scrutiny has found a rational basis--is the court tacitly recognizing have a fundamental right to live together by avoiding the issue without another factor is boston's undergraduate students live in campus dormitories, many colleges do overcrowded buildings.27 edward d. crane factual evidence). but see goodridge, 798 n.e.2d at 998 n.21 (cordy, j., dissenting) (criticizing majority for rational basis for ordinance), with mcminn v. town of oyster bay, 488 n.e.2d 1240, 1244 (n.y. 1985) an unlicensed lodging-house.31 130. id. at 381. the dissent accused the majority of "subtly altering the rational basis test, or paying lip requirements for lodging house operation). 2003) (holding florida constitution requires strict scrutiny of any law infringing on abortion rights), and bd. of even though few college communities have legislated student-specific zoning ordinances, they have enacted the constitutionality of a zoning ordinance that prevented more than two living together class or fundamental right involved); jeffrey m. shaman, equality and liberty in the golden age of code, and the boston zoning commission considered the amendment for final pennsylvania applied the rational basis test to a student-specific restrictive assumption about how the supreme court might rule. id. become moot issues. the best option for property owners and students may be supreme court employed because the massachusetts constitution does not infringes on a fundamental right, the reviewing court applies either strict or 226 suffolk university law review [vol. xliii:217 the sjc has not conclusively rational basis test). the dissent criticized the majority for placing the evidentiary burden on the township, how colleges and universities positively impact economy and quality of life); boston college: community 63. id. at 804-05. bloomsburg is the home of bloomsburg university; the town passed the ordinance to distinguished it from the belle terre ordinance because the "mini-dorm" part ii.b examines case law relating to constitutional protections under massachusetts constitution). 798 n.e.2d 941, 959 n.18 (mass. 2003) (noting massachusetts constitution offers more protection than federal considers when analyzing classifications); see also infra notes 49-51 and accompanying text (highlighting constitutions generally apply in the same manner, subjecting state action to massachusetts rational basis test. ordinance and the ordinance was not the least restrictive means for achieving those goals. id. at 440-42. related to these goals because the ordinance sought to preserve these residential 238 suffolk university law review [vol. xliii:217 unrelated persons from living together in the same household.74 some students to live off-campus.7 as part of the consent decree, isd protection under law); mass. const. pt. 1, art. i, amended by mass. const. amend. cvi (establishing equal maryland students. somasundaram, supra. back to campus . . . . it's having some idiot race across the tops of six cars on federal constitution does not limit state constitutional protections; courts may and single-family homes. residents complain that these overcrowded explanation for college dropout rate, pittsburgh post-gazette, sept. 6, 2008, at a1 (documenting various though most state basis scrutiny.44 consent decree limited isd's enforcement power). permanent residents also complain of student live off-campus in boston. id. in order to house more students on campus, a number of colleges and whole.138 scrutiny applies when right to travel infringed); roe v. wade, 410 u.s. 113, 155 (1972) (holding right to requires elevated scrutiny for wealth classifications), and breen v. carlsbad mun. sch., 120 p.3d 413, 422-23 numerous residents have three members of a group of twelve adults living relying on cases that took overinclusiveness and underinclusiveness into account. dinolfo, 351 n.w.2d at 847 fundamental right to live together.83 goodridge court for rejecting purported rationale due to underinclusiveness). 38. see schworm, supra note 11 (describing boston zoning commission hearing); brighton centered, 424 (mass. 1977) (reasoning fundamental right to privacy includes right to freedom from unwanted medical 158. see supra note 14 and accompanying text (noting amendment restricts more than four college 7. see menino's report, supra note 2, at 3 (providing residency statistics of boston's undergraduate arrangement, the six students dined together, shared chores, and maintained a communal checking account to accompanying text (stating rational basis test tolerant of overinclusive and underinclusive legislation). the 218 suffolk university law review [vol. xliii:217 228 suffolk university law review [vol. xliii:217 of protected class status). rationally related to a legitimate government interest.103 1985) (characterizing ordinance as fatally overinclusive and underinclusive); brener, supra note 79, at 458-61 arrangements and to protect residential quality of life.36 the state courts that have considered the issue, most courts have followed belle reynolds, 837 p.2d 48, 55 (wyo. 1992) (holding court access fundamental right based on explicit language in the supreme court has also interpreted the fourteenth amendment to shaman, supra note 41, at 18-20, 25-28 (highlighting different approaches to equal protection in alaska, new zoning ordinance as constitutional prior to the court of appeals decision. kirsch, 626 a.2d at 375. the prince pay for necessary household upkeep. id. at 809. none of the students had behaved irresponsibly as tenants. id. (holding ordinance fails rational basis review). neighborhoods). councilor ross has also trumpeted the amendment as a means of reducing property tax rates nonprofit religious organization. id. the members chose to live communally as a part of their religious u.s. 307, 313-14 (1976) (reasoning age-based classifications not suspect as no widespread history of 35. see boston city council, order regarding a text amendment for boston zoning code achieving these goals.99 mass. jan. 24, 2005) (containing settlement agreement). and romer, 517 u.s. at 632 (reasoning legislation motivated by animus towards homosexuals), with smith v. bd. of trs., 616 f. supp. 1310, 1313 (d. nev. 1985) (concluding students not suspect classification); lantos v. with the statute no longer applicable, isd had influenced by a 1972 ballot amendment that added protection for the right to privacy to the california zoning ordinances). compare dinan v. bd. of zoning appeals, 595 a.2d 864, 870-71 (conn. 1991) (discerning the ordinance in question imposed lawrence, college students--they're baaaaack!; why we hate'em, boston herald, aug. 25, 1996, at 1 111. id. the dissent argued that families are just as likely to park numerous vehicles outside their council unanimously approved councilor ross's petition to amend the zoning crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm assumption, unsupported by any evidence, that unrelated groups of people live (noting fundamental right infringement triggers heightened scrutiny). control student behavior. id. at 798-99. impact of boston's eight research universities on the metropolitan boston area 3-9 (2003) protection). ranalli & jack encarnacao, allston partyers come up empty as police turn up heat, boston globe, dec. an important legal question is whether the amendment violates either the 2. fundamental right infringement when applying rational basis review to restrictive zoning ordinances.106 amendment's rationality by noting potential overinclusiveness or basis test). general, to live together.145 gender classifications). 240 suffolk university law review [vol. xliii:217 880, 882-83 (ohio 1975) (stating federal and ohio equal protection clauses operate identically). but see get the paper and cutting her feet on a bottle some undergrad smashed on your also criticized the commonwealth for not providing evidence to prove the part ii.c presents case law relevant to the amendment's likelihood strict scrutiny requires that the legislation be necessary facing a similar situation in kirsch v. prince george's county,126 1. see joe fitzgerald, bc foes savor revenge, boston herald, aug. 26, 1993, at 98 (quoting angry applying this standard, valid legislation can be significantly overinclusive or 45. see clark, 486 u.s. at 461 (stating classifications based on illegitimacy must pass intermediate 49. see, e.g., fullilove v. klutznick, 448 u.s. 448, 496 (1980) (powell, j., concurring) (using strict overinclusive and underinclusive nature of the ban, even though such together). sec'y of executive office of human servs., 609 n.e.2d 447, 456-57 (mass. 1993) (holding disabled do not response). the plaintiffs, fourteen individuals from seven same-sex relationships, wished to marry, but immutability and historical discrimination, do not either.142 problems with underinclusive legislation); ry. express agency v. new york, 336 u.s. 106, 110 (1949) (noting under their respective state constitutions.148 rejected most fundamental right arguments and has rarely expanded of "family." by rushing to file a constitutional challenge to the amendment, 1992) (reasoning student classification does not require heightened scrutiny); davis v. churchill county sch. 2009] constitutionality of boston's student-specific zoning amendment 227 156. see supra notes 91-92 and accompanying text (explaining federal rational basis test requires no the ordinance and lower merion's stated goals.124 burden upon a wider range of individuals than are included in the class of those tainted with the mischief at 115. id. at 834. the members of the two households all belonged to the work of christ community, a compared to belle terre; the court still found a rational relationship between crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm housekeeping unit." id. who left furniture strewn across front lawn upon moving out). quality of life). 103. vill. of belle terre v. boraas, 416 u.s. 1, 8-9 (1974); see supra notes 74-76 and accompanying text p.2d 436, 439-40 (cal. 1980) (holding municipality may not limit number of unrelated persons cohabitating in 109. ames, 736 n.w.2d at 260. the court quoted extensively from belle terre while discussing the infringe on college students' right to choose their roommates.20 for regulation.19 even though the court claimed to outlets, 55 soc. sci. & med. 425, 429 (2002) (correlating close proximity to colleges with higher community fundamental rights on history and tradition.69 classifications based on age, wealth, sexual orientation, and mental overinclusiveness and underinclusiveness also contributed to the court's restricted more than five unrelated people from living together violated the college students who maintained friendly relationship with neighbors); somasundaram, supra note 127 (summarizing economic impact of boston's research universities); menino's report, supra note 2, at 1 survival rate for legislation involving protected class or fundamental right), with robert c. farrell, successful to achieve a compelling governmental interest.42 federal courts have consistently declined to apply the heightened standard of scrutiny used in cleburne. see charged boraas with violating the ordinance after he rented a house to six 144. see belle terre, 416 u.s. 1, 7-8 (1974) (holding unrelated people have no fundamental right to live basis test when state action infringes on an important, yet not fundamental, has not considered the issue. distefano v. haxton, c.a. no. wc 92-0589, 1994 r.i. super. lexis 98, at *21 broader constitutional protection of non-traditional families). a rhode island trial court has reasoned that a those the federal courts protect.140 2008.39 43. see clark, 486 u.s. at 461 (explaining intermediate scrutiny requirements); craig v. boren, 429 u.s. massachusetts constitution.151 crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm residential neighborhoods.125 states district court for the middle district of pennsylvania, facing a slightly the supreme court has declined to apply protected class status to 2009] constitutionality of boston's student-specific zoning amendment 225 33. see sang vo v. city of boston, no. 00-11733-rwz, 2005 u.s. dist. lexis 3942, at *5-18 (d. 78. id. at 8-9 (majority opinion). this note discusses the court's application of the rational basis test in massachusetts's enhanced rational basis test is stricter, but the amendment is smith, a landowner who rented college and can drop out of school whenever they please.136 placed extra restrictions on households domiciling three or more college 224 suffolk university law review [vol. xliii:217 considerations are normally irrelevant under the rational basis test.100 certain situations). compare murphy v. comm'r of dep't of indus. accidents, 612 n.e.2d 1149, 1156-57 and prejudice against a class when deciding whether the class warrants heightened scrutiny. supra note 51 and the plaintiffs and (1999) (explaining unique characteristics of student renters and how they result in higher rents). 16. see richard l. cravatts, property rights compromised; no way to stop student rowdiness, boston additionally, factual 52. see in re herrick, 922 p.2d 942, 959 (haw. 1996) (applying federal factors to determine court 138. see bloomsburg, 912 f. supp. at 805 (highlighting lack of prejudice towards college students); smith, and rental values, even though he did not list these intentions when he initially filed the petition to amend. 1992) (noting municipal study indicates large concentrations of college students change neighborhood crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm enforcement of the lodging-house statute in federal court.30 2009] constitutionality of boston's student-specific zoning amendment 235 heightened standard even though no suspect class involved). cleburne appears to be an anomaly, however, as fundamental right); smith, 1992 wl 112247, at *3 (reasoning student-specific ordinance does not burden against college students and argued for a heightened standard of scrutiny.63 of neighborhood). other studies, similar to the study lower merion conducted, have reached the same warrant heightened scrutiny, then college student classifications, lacking appears to be reserved for classifications based on sexual orientation. see supra note 88 (noting supreme states constitution to require elevated judicial scrutiny when a law 24. see infra part ii.b. 11. see downs, supra note 9 (noting increased policing of neighborhoods with heavy student the court held the student-specific language of the constitution.133 level of constitutional review because the amendment neither infringes on a accompanying text (highlighting factors giving rise to heightened scrutiny). 100. id. at 960-65; see lawrence friedman, the (relative) passivity of goodridge v. department of public asp?pubid=2008022 (2008) (providing 2007 statistics on undergraduate students' ages). ninety-seven percent because the restriction on unrelated people living together did not substantially relate to the stated goals of the rational basis test if it is irrationally overinclusive or underinclusive.160 in general, federal courts have been extremely hesitant to expand the scope adopting belle terre reasoning); state v. champoux, 566 n.w.2d 763, 767-68 (neb. 1997) (agreeing with (describing belle terre as unpersuasive); mcminn v. town of oyster bay, 488 n.e.2d 1240, 1243-44 (n.y. 84. 610 p.2d 436 (cal. 1980). related by blood, marriage, or adoption . . . together with not more than one additional person not related by class than does the federal constitution.47 95. 798 n.e.2d 941 (mass. 2003). 97. 798 n.e.2d at 948-49; see also susan gluck mezey, queers in court: gay rights law and (highlighting how colleges and universities benefit boston's economy); harvard univ., investing in single family, even if the ordinance had no restrictions on unrelated persons, because the tenants' living definition, the statute requires the owner to obtain a lodging-house license from terre and held that unrelated persons have no fundamental right to live together undergraduates, 33,278 students live on campus, 23,037 students live outside of boston, and 12,884 students the california supreme court considered whether a zoning ordinance that litter, and parking problems because non-student occupants were equally likely state institutions--bunker hill community college, roxbury community college, and the university of and police officers have noted that these dwellings lead to an inordinate amount rational basis test's tolerance for overinclusive and underinclusive legislation). underinclusive classifications traditionally warrant heightened scrutiny. richard b. saphire, equal protection, rational basis review, and the impact of cleburne living center, inc., prohibiting more than four unrelated college students from living together.144 crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm equal protection and due process guarantees in state 1. discrimination against a protected class warrant protected class status.56 fundamental right nor discriminates against a protected class. the supreme legislation using rational basis scrutiny.89 complained about how these dwellings negatively impact their quality of life, the court reasoned the zoning ordinance rationally actors." id. at 443. constitution requires.67 60. smith, 1992 wl 112247, at *2. as mentioned above, courts consider the history of discrimination crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm (describing other community actions designed to control student behavior). arrangements "did not achieve the permanency and cohesiveness inherent in the notion of a single not host disruptive parties and are respectful of their older, non-student as a basis for this conclusion, the court considered the 137. see 2007 doe dig. educ. stat. 303, available at http://nces.ed.gov/pubsearch/pubsinfo specific discrimination did not have a rational relationship to reducing noise, columbia residents not protected class); gazette v. city of pontiac, 41 f.3d 1061, 1067 (6th cir. 1994) less capable of raising children than heterosexual couples and noted that the legitimacy of ames' goals. id. or more undergraduate students to live together, as the city of boston zones in a according to boston redevelopment the argument that restricting college students' ability to live together rationally the court rejected smith's argument, noting constitution protects); stephenson v. bartlett, 562 s.e.2d 377, 393-94 (n.c. 2002) (applying strict scrutiny to massachusetts courts have exhibited because unrelated groups of people tend not to contribute to community potential legal complications). other college towns have also attempted to control student populations by unrelated students from a local university.75 a. potential for heightened scrutiny universities are building or attempting to build more dorms. see editorial, building confidence near bc, households.35 are those in which "[a]ll who are included in the class are tainted with the mischief, but there are others also crowding, rowdiness, boston globe, mar. 13, 2008, at a1 (describing boston's recently passed restriction involvement). if the bra recommends the amendment, then the zoning commission has a public hearing and of trouble.168 community benefits boston college provides); boston university: making a difference in the community, residential quality of life, as the amendment is most likely constitutional in the despite these benefits, the presence of so many higher-education additionally, the college students harm residential quality of life.167 zoning code to restrict more than four undergraduate students from living disabled); lacava v. lucander, 791 n.e.2d 358, 363-64 (mass. app. ct. 2003) (reasoning inmates not together challenged the ordinance.86 ordinance because of underinclusiveness); menino's report, supra note 2, at 1 (reporting most residents 234 suffolk university law review [vol. xliii:217 fundamental right to live with one another. moore, 431 u.s. at 503-05. in moore, the court considered the constitutionally protected right). that society has not been historically prejudiced against students.60 both the united states supreme court and 2009] constitutionality of boston's student-specific zoning amendment 221 (evaluating ordinance under rational basis test); hayward v. gaston, 542 a.2d 760, 768-69 (del. 1988) (citing occupation.131 ineffective). the city hopes to prevent college students from packing into large apartments scale of scrutiny, rather than attaching rigid tiers of scrutiny to specific protected classes. see shaman, supra 2009] constitutionality of boston's student-specific zoning amendment 229 disturbance rate); see also daniel e. wenner, note, renting in collegetown, 84 cornell l. rev. 543, 557-60 57. civ. a. no. 90-7501, 1992 wl 112247 (e.d. pa. may 11, 1992). state courts generally apply equality sex couples violated the state constitution.97 comparing federal and state protection of right to privacy); nancy c. marcus, beyond romer and lawrence: sept. 14, 2009) (highlighting amendment's potential to keep property taxes low), and of tradition: goodridge v. department of public health, 82 denv. u.l. rev. 79, 89-91 (2004) (arguing they have not extended protected class status to any classifications beyond 119. id. at 841-42 (majority opinion). the court acknowledged the overinclusive and underinclusive 2009] constitutionality of boston's student-specific zoning amendment 219 behaved college students from living together, even though these students do note 41, at 18-20 (describing states' adoption of sliding scale system). the oregon supreme court has create disturbances as college students); see also charter twp. of delta v. dinolfo, 351 n.w.2d 831, 842 focused explicitly on students, fewer cases have addressed the constitutionality opponents believe the amendment arbitrarily targets (describing local animosity towards college students). lower merion twp., civ. a. no. 90-7501, 1992 wl 112247, at *2 (e.d. pa. may 11, 1992) (recognizing lack 25. see infra part ii.c. b. students as a protected class 136. see am. coll. testing, national collegiate retention and persistence to degree rates 3 reasoned that the student-specific language of the "mini-dorm" ordinance fundamental right to choose cohabitants exists under the state constitution, but the rhode island supreme court 126. 626 a.2d 372 (md. 1993). infringed on the fundamental rights to privacy and freedom of association. id. at 13 (marshall, j., dissenting). a class warrants heightened scrutiny if the class is based on an immutable characteristic, underrepresented in 74. id. at 2; see rebecca m. ginzburg, note, altering "family": another look at the supreme court's the ordinance's extreme levels of massachusetts constitution.55 159. see friedman, supra note 93, at 415 (arguing massachusetts applies enhanced rational basis test in the supreme court has held that zoning ordinances limiting the number of 121. see smith v. lower merion twp., civ. a. no. 90-7501, 1992 wl 112247, at *3 (e.d. pa. may 11, globe, sept. 12, 2002, at a10 (describing decrepit condition of some student-occupied houses); brighton zoning ordinances). make evidentiary showing). compare goodridge, 798 n.e.2d at 963 (requiring evidence of rational revocation, monetary fines, and possible jail time. id. college students' rights to live together.146 efforts on behalf of disabled while determining if disabled constitute protected class); frontiero, 411 u.s. at 116. id. at 840. even though the court held the preservation of family values was a legitimate (quoting student complaining about overinclusiveness of student-specific regulation); see also ames rental rounding out the analysis, the court concluded the rental values). ross was also the main proponent of an ordinance passed in 2004 that requires colleges and 1983) (holding washington constitution prohibits sexual classifications even if strict scrutiny is met); 36. see id. (asserting amendment necessary to re-establish boston's enforcement power and protect to privacy includes right to choose to use contraceptives); griswold v. connecticut, 381 u.s. 479, 484-86 commonwealth based its argument on unsubstantiated assumptions about service to that test but refusing to apply it in the instant case." id. at 381 (chasanow, j., dissenting). the 14. see boston, mass., zoning code art. 8, � 8-7 (restricting residential districts to family occupants). liberty, or property by state); mass. const. pt. 1, art. x (establishing due process protection under state resident regarding problems with college students). neighborhoods, http://www.cityofboston.gov/citycouncil/councillorscorner/cc_ross_4-7-08.asp (last visited rational basis test applied incorrectly). relationship, and the amendment will therefore pass the federal rational basis appeals based its reasoning on the underinclusive nature of the ordinance, even though legislation should not on student housing); infra notes 12-14 and accompanying text (describing new legislation prohibiting more of rights: a state constitutional law case study, 25 new eng. l. rev. 177 (1990) (describing extended other courts implicitly rejected the notion that unrelated people amendment, the mayor may sign the amendment into law or veto it. see id. at 186-87. globe, mar. 14, 2008, at b1 (noting potential infringement of privacy rights). undergraduate students who live off-campus.6 the local municipality.29 values, and population control--as legitimate governmental objectives.116 jurisprudence). crimes than peers not attending college). 18. see infra parts ii-iii (analyzing constitutionality of amendment). some critics of the amendment broad); supra note 90 and accompanying text (highlighting rationality test's tolerance for overinclusiveness and as established in the belle terre decision, a person's right to live with other health, 14 b.u. pub. int. l.j. 1, 13 (2004) (noting goodridge justices believed marriage exclusion irrationally procedural due process. id. at *11-12. shaman, supra note 41, at 76-77 (comparing federal and state constitutional protections of equality); stanley 846 (williams, c.j., dissenting). privacy.77 gender classifications). applying the rational basis test to the ordinance, the crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm review.101 city of newton, argued that a municipal ordinance violated their tenants' due process rights because it compensation); doe v. superintendent of sch., 653 n.e.2d 1088, 1095 (mass. 1995) (recognizing no n.e.2d 387, 398-99 (mass. 1981) (holding abortion rights inherently included in fundamental right to privacy u.s. constitution), and san antonio indep. sch. dist. v. rodriguez, 411 u.s. 1, 28-29 (1973) (holding wealth in a michigan supreme court case, student classifications deserve heightened scrutiny. id. cleburne was a confusing decision that temporarily freedom to live together, so the amendment may have to pass the enhanced of suspect classes or fundamental rights. shaman, supra, at 15. constitution in several contexts); alexander wohl, new life for old liberties--the massachusetts declaration (1973) (holding no fundamental right to education under u.s. constitution). 51. see, e.g., united states v. virginia, 518 u.s. 515, 531 (1996) (noting history of discrimination 72. see vill. of belle terre v. boraas, 416 u.s. 1, 7-8 (1974) (reasoning unrelated people have no questions regarding the amendment's legality and practicality. the most 21. compare lantos v. zoning hearing bd., 621 a.2d 1208, 1212 (pa. commw. ct. 1993) (upholding students negatively affect residential neighborhoods, whereas the belle terre court based its holding of 80. see behavioral health agency v. casa grande, 708 p.2d 1317, 1322 (ariz. ct. app. 1985) (explicitly s.w.3d 332, 350 (ark. 2002) (holding anti-sodomy law violates fundamental right to privacy arkansas (relying on belle terre to justify applying rational basis test to student-specific ordinance); lantos v. zoning 106. see, e.g., behavioral health agency v. city of casa grande, 708 p.2d 1317, 1322 (ariz. ct. app. massachusetts courts have been similarly hesitant; from student-occupied households. id. at 261; see also, e.g., belle terre, 416 u.s. at 2-3 (involving students the california supreme court is independent of the law or is solely a legal creation. see id. at 26-27 (detailing oregon's approach to equal waldron, 426 a.2d 929, 941 (md. 1981) (noting equality protections of maryland constitution interpreted in 88. id. at 440-44 (majority opinion). the court held that the ordinance did not pass strict scrutiny court first reasoned the city had a legitimate interest in preserving family hundred dollars and a maximum of three months imprisonment. id. � 24. therefore, belle terre is controlling; the student turnout in the 2004 presidential elections was sixty percent, as compared to sixty-four percent for the to the goal of providing favorable settings for procreation because the commonwealth did not deny marriage provisions.76 massachusetts courts have not yet decided whether unrelated persons have a et al., secondhand effects of student alcohol use reported by neighbors of colleges: the role of alcohol college student is not an immutable characteristic; students choose to attend (mass. 2003) (avoiding consideration of heightened scrutiny for sexual orientation classifications); williams v. the court had little problem 14 j. contemp. legal issues 51, 51 (2004) (elaborating facts). 71. see, e.g., tobin's case, 675 n.e.2d 781, 784 (mass. 1997) (holding no fundamental right to workers' that the ordinance was unconstitutional because the preservation of family neighborhoods could be achieved by protection of the laws, 37 calif. l. rev. 341, 344 (1949). in contrast, overinclusive classifications "impose a prompted some to believe the supreme court would be more amenable to protecting classes previously not about u.s. young voters: the presidential election year 2008 3 (2008) (stating sixty percent of 22. see infra parts ii-iii. 153 (2006) (analyzing legality of regulations aimed at controlling student behavior). in smith v. lower 140. see supra note 55 and accompanying text (noting massachusetts courts hesitant to expand protected protection in massachusetts). even if no textual basis for protection exists, courts have based (1976) (noting economic legislation must rationally relate to legitimate state purpose); chemerinsky, supra courts are far more likely to overturn legislation when applying these 155. see smith v. lower merion twp., civ. a. no. 90-7501, 1992 wl 112247, at *3 (e.d. pa. may 11, actively partake in the political process.137 under rational basis test possibly different if ordinance solely restricted college students). 5. see infra notes 6-10 and accompanying text (detailing problems). in general, college towns suffer undergraduate students and will result in higher rents.16 that enroll close to 140,000 students, including graduate and part-time innovation: harvard university's impact on the economy of the boston area 4 (2009) (noting highly deferential rationality test). (williams, c.j., dissenting). ordinance limiting the number of unrelated people who could live together 56. see smith v. lower merion twp., civ. a. no. 90-7501, 1992 wl 112247, at *2 (e.d. pa. may 11, practice. lutz, 692 f. supp. at 457-58. the lutz court declined to apply a heightened standard of scrutiny and michael ross, preventing neighborhoods from becoming "shadow campuses" (jan. 2008), stony brook and decided to live together as an alternative to traditional dormitory living, as they believed charter township of delta v. dinolfo,113 conclusions regarding the negative effects college students have on residential neighborhoods. see wechsler, this concern is a legitimate governmental objective, as recognized in belle terre and numerous other reviewing the ordinance for rationality, the court acknowledged the arguments for protected class status.54 wyoming constitution); see also chemerinsky, supra note 42, at 795 (noting some scholars believe rights discriminates against a protected class.45 constitutional protections beyond federal constitutional protections. see goodridge v. dep't of pub. health, ordinance applied only to unrelated individuals, whereas the east cleveland ordinance affected family romer and lawrence imply court applies stricter rational basis test to sexual orientation classifications). local government and the presumption of validity, 74 n.y.u. l. rev. 447, 454-57 (1999) (noting most state if these classifications, both based on app. 1996) (considering ordinance passed by city of lincoln, home of university of nebraska); durham v. this note explores the amendment through analysis of the aforementioned triggered by protected class discrimination and fundamental right infringement); barlow v. wareham, 517 4 law, http://www.facebook.com (last visited sept. 14, 2009) (presenting viewpoint of students opposed to people typically host friends more often, thus increasing neighborhood traffic lastly, there is no history of scrutiny.24 2. see boston redevelopment auth., mayor menino's report on boston--america's rational. id. at 383. privacy is narrower under the federal constitution than under the california constitution. id. at 440. the "town-gown" conflict, is a common problem in college towns. see blake gumprecht, the american example, colleges and universities spur the local economy by funneling of child-rearing settings was not rationally related because some homosexual couples are excellent parents. id. 55. see, e.g., tobin's case, 675 n.e.2d 781, 784 (mass. 1997) (stating individuals over sixty-five years pocketbooks." boraas v. vill. of belle terre, 476 f.2d 806, 808-09 (2d cir. 1973). as part of their living the court stated that the amendment redefined the term "family" in 150. compare mass. const. art. i-cxx (containing no provision explicitly protecting privacy), with placing evidentiary burden on commonwealth). unrelated persons' cohabitation rights). note, make way for the new kid on the block: the possible zoning implications of lawrence v. texas, 2005 rational basis review after concluding college students were not a protected class. smith, 1992 wl 112247, at even though the boston zoning amendment deals specifically with students, the courts follow belle terre). at the time of the brener note's publication, twenty-eight state courts had not department of public health: the irrationality of the rational basis test, 11 j. gender race & just. 149, protected class determinations under state constitutional law.52 commonwealth presented no evidence demonstrating that homosexuals are any of student-specific ordinances, leaving significant uncertainty as to whether adopted enhanced rational test for sexual orientation classifications). 2. fundamental rights challenged the ordinance under the federal constitution, claiming the supreme court would likely overturn fundamental right to marry); mem'l hosp. v. maricopa county, 415 u.s. 250, 262-63 (1974) (holding strict terre). judicial court: a preliminary investigation, 69 alb. l. rev. 415, 418 (2006) (noting sjc employs enhanced 94. see goodridge v. dep't of pub. health, 798 n.e.2d 941, 960-68 (mass. 2003) (applying more dissent criticized the majority for striking down the ordinance based on its underinclusiveness. kirsch, 626 118. id. at 840-41. the court's apparent requirement of factual evidence suggests a modified application the goodridge decision also indicates that massachusetts's enhanced property owners and students risk wasting time and effort fighting an uphill scrutiny because of race's immutability); mathews v. lucas, 427 u.s. 495, 505 (1976) (requiring heightened 46. see am. subcontractors ass'n v. city of atlanta, 376 s.e.2d 662, 663-64 (ga. 1989) (applying strict language of the zoning ordinance did not mention this goal. id. at 840 n.6. the dissent did not share this 19. see schworm, supra note 18 (raising issue of whether zoning amendment unconstitutionally student occupants.129 developed a unique approach in which the level of scrutiny depends on whether the classification exists article 2 and article 2a regarding the definition of "family" (filed dec. 5, 2007) (stating amendment 904-06 (2005) (criticizing rational basis test's lack of evidentiary requirement). massachusetts at boston. id. at 2. including the state students, enrollment in boston totals 139,657 students. the united b. heightened scrutiny under federal and state constitutions on suspect class or fundamental right). most state courts also raise the level of scrutiny based on involvement person.114 federal constitution or the massachusetts constitution.18 limit number of unrelated persons cohabitating in one dwelling), with city of santa barbara v. adamson, 610 rational basis test); exxon corp. v. eagerton, 462 u.s. 176, 195-96 (1983) (applying rational basis test to students from living together). the amendment to the boston zoning code indicates the city of boston is compare id. (focusing on preserving quality of life), with michael p. ross, zoning amendment: preserving potential constitutional challenges to the amendment involving heightened 48. see rodriguez, 411 u.s. at 28 (listing factors); chemerinsky, supra note 42, at 672-73 (discussing persons have fundamental right to live together). in commonwealth v. jaffe, the defendants, landlords in the student behavior through increased policing, the city of boston recently s.w.2d 487, 491-92 (ky. 1992) (holding right to consensual homosexual sex within fundamental right to relationship existed between the ordinance and achieving the goals.117 of rowdy student behavior, as older residents decry disruptively loud parties under west virginia constitution), with stenberg v. carhart, 530 u.s. 914, 921 (2000) (noting undue-burden the ability of the group to protect itself through the political process.50 190, 197 (1976) (holding gender classifications subject to intermediate scrutiny); chemerinsky, supra note 42, of 14,487,475 total undergraduate college students under eighteen upon enrollment in fall 2007). college student-specific ordinances pass the rational basis test.121 the plaintiffs claimed isd incorrectly 2009] constitutionality of boston's student-specific zoning amendment 233 2002, at b1 (interviewing college neighbor who states most student residents are responsible and (2008) (estimating 65.7 percent of first-year college students return for second year); anya sostek, no simple 13. see boston, mass., zoning code art. 2, � 2-1(19) (2008) (defining family for zoning purposes). 357, 370 (1999) (noting rational basis review satisfied in 100 out of 110 supreme court cases from 1971 to of appeals of maryland came to the opposite conclusion, holding a student- fundamental right.65 whether father's visitation rights fundamental); moore v. city of e. cleveland, 431 u.s. 494, 503 (1977) college students). overcrowding, absentee landlords, boston globe, mar. 22, 1998, at b1 (illustrating how student neglect the so-called "mini-dorm" ordinance established certain living implementing policies of questionable legality. see generally laura marini davis, has big brother moved off- persons.62 enhanced rational basis test). only to state that it limited off-campus students from crowding together in order primarily to preserve residential quality of life.153 93. see gluba v. bitzan & ohren masonry, 735 n.w.2d 713, 720 (minn. 2007) (stating minnesota underinclusive legislation. supra note 90 and accompanying text. the dissent criticized the majority for 6. see menino's report, supra note 2, at 1 (noting issues associated with college students living in 87. id. at 439-40; see also cal. const. art. i, � 1 (protecting individual right to privacy). the court was despite this fundamental right protection, a massachusetts court is unlikely to hold that improves local economy, education, and health). 101. id. at 964-65; see supra note 91 and accompanying text (noting rationality requires no support from treatments). considered the constitutionality of these ordinances. see id. at 454, n.39 (listing state courts). in 2007, the college town 1-3 (2006) [hereinafter menino's report] (presenting spring 2006 data on boston's student in addition to public 58. id. at *1. under the ordinance, a property owner could only rent to three or more college students if see schworm, supra. factor to consider is the immutability of the classification.49 in light of belle terre, the amendment does not trigger heightened scrutiny by constitution). outside the context of fundamental rights, the sjc has not hesitated to expand state from nearby state university of new york at stonybrook); state v. champoux, 555 n.w.2d 69, 70 (neb. ct. see lutz v. city of york, 692 f. supp. 457, 461 (m.d. pa. 1988). the lutz case involved an ordinance that california constitution.85 heightened levels of scrutiny, so the success of a constitutional challenge often in addition, lower federal courts have rejected numerous other dist. v. rodriguez, 411 u.s. 1, 28-29 (1973) (noting wealth discrimination does not invoke higher scrutiny). at the boston zoning commission's public 64. id. at 805. the court cited a decision that upheld an "anti-cruising" ordinance as constitutional. id.; 113. 351 n.w.2d 831 (mich. 1984). unrelated people who can live together in one household do not infringe upon a walk instead of owning a vehicle. id. at 265 (wiggins, j., dissenting). doorstep the night before. it's begging [boston college] to assign its security institutions also leads to problems.5 the bra then votes on whether to recommend the amendment. see id. at 182-83 (explaining bra's private colleges and universities employ six percent of private employees in boston metropolitan area); see also this redefinition made it illegal for five 152. see supra note 89 and accompanying text (explaining application of federal rational basis test). 83. see city of santa barbara v. adamson, 610 p.2d 436, 439-40 (cal. 1980) (reasoning right to choose 47. see sw. wash. chapter nat'l elec. contractors ass'n v. pierce county, 667 p.2d 1092, 1102 (wash. korematsu v. united states, 323 u.s. 214, 216 (1944) (applying strict scrutiny to classification based on boston mayor thomas menino signed the amendment into law on march 13, crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm considered suspect. see city of cleburne v. cleburne living ctr., 473 u.s. 432, 447-450 (1985) (applying 1992) (applying rationality test to student-specific zoning ordinance); lantos v. zoning hearing bd., 621 a.2d 73. 416 u.s. 1 (1974). 79. see katia brener, note, belle terre and single-family home ordinances: judicial perceptions of voorhis, fed up with `dorms'; hub may limit students in rentals, boston herald, mar. 11, 2008, at 24 procedural history); alyson taub, comment, village of belle terre v. boraas and the meaning of "family", scrutiny to gender classifications, although federal courts apply only intermediate scrutiny. compare craig v. only fundamental if stated in text of constitution). in belle terre, the supreme court held that a zoning 142. compare cleburne, 473 u.s. at 446 (acknowledging past discrimination against mentally disabled), than four college students from living together). outside of additional policing, boston has implemented other u.s. constitution. id. as noted above, the federal rational basis test is unfailingly tolerant of overinclusive and conflicts between permanent residents and college students generally arise out autonomy rights and equality under the massachusetts constitution prohibit exclusion of same-sex couples the parties settled before the case went to to migrate and settle within a state. id. they additionally claimed the ordinance was motivated by a desire for providing optimal settings for childrearing.165 trial and the court issued a consent decree.33 right to procreate fundamental and applying strict scrutiny); see also chemerinsky, supra note 42, at � 10 fcc v. beach commc'ns, 508 u.s. 307, 315 (1993) (stating rationality not subject to courtroom fact-finding); belle terre if given the opportunity. id. at 258. the court dismissed this argument, refusing to make an cases.154 when a party challenges the constitutionality of legislation, a court generally intermediate scrutiny requires in city of santa barbara v. adamson,84 fundamental right to live together). in comparison, the court has held that extended family members have a (mass. 1993) (considering state's historical treatment of disabled); breen, 120 p.3d at 422-23 (considering federal and state courts have rejected arguments that college students settings for procreation, to ensure optimal settings for child-rearing, and to preserve financial resources. id. at b1 (quoting permanent residents calling themselves `witnesses to hell' because of student rowdiness); ralph an immutable characteristic and historically subjected to discrimination, do not ordinance directed at unrelated cohabitants under rational basis test). 99. goodridge, 798 n.e.2d at 960-65. the commonwealth's stated rationales were to provide favorable george's county council initially passed the legislation in response to complaints about university of 32. id. at *18-19. the plaintiffs also claimed violations of their rights to equal protection, privacy, and 1346 (1986). the sjc avoided deciding the issue, noting that the defendants' tenants could not qualify as a 2009] constitutionality of boston's student-specific zoning amendment 237 right.94 primarily to college students, argued that student classifications deserve a 77. id. at 7-8. in dissent, justice marshall reasoned that the zoning ordinance unconstitutionally constitutions). compare n. fla. women's health & counseling servs. v. state, 866 so.2d 612, 620-22 (fla. 222 suffolk university law review [vol. xliii:217 crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm richardson, 403 u.s. 365, 367 (1971) (reviewing classification of non-citizens under strict scrutiny); scrutiny for legitimacy-based classification because individual does not control legitimacy); frontiero v. merion township,122 homosexuals.166 residential nature constitutes legitimate goal); ames rental prop. ass'n v. city of ames, 736 n.w.2d 255, of historical discrimination towards college students). reasoning in belle terre regarding unrelated groups of people and their rights the court declined to apply a heightened standard of scrutiny, noting the lack 143. vill. of belle terre v. boraas, 416 u.s. 1, 7-8 (1974); see also supra note 65 and accompanying text 23. see infra part ii.a. marshall believed an individual's decision as to who to live with was within the fundamental right to privacy licenses to heterosexual couples lacking the ability to procreate. id. at 961-62. the court held that optimization shared living arrangements.34 scrutiny to classifications based on sexual orientation, 73 fordham l. rev. 2769, 2770 (2005) (suggesting prop. ass'n v. city of ames, 736 n.w.2d 255, 260-61 (iowa 2007) (considering similar argument concerning one dwelling). 1992 wl 112247, at *2 (noting college students not historically discriminated against). but see gumprecht, interpreted the lodging-house statute by enforcing it against unrelated persons to contribute to these problems.132 disturbances). register all beer keg sales); lisa wangsness, as students arrive, city agency confronts scofflaw landlords, 127. id. at 379-81. whether an ordinance prohibiting property rental to three or more students 29. id. �� 23-24. the operator of an unlicensed lodging house is subject to a maximum fine of five though massachusetts courts have not decided this issue, they are likely to 28. id. � 22. relationship.164 choose living partners fell within the fundamental right to privacy protected by does not discuss this constitutional issue. see cravatts, supra note 17 (stating amendment violates fifth pass rational basis review when restricting students' or unrelated persons' instead of on the plaintiffs. dinolfo, 351 n.w.2d at 846 (williams, c.j., dissenting). thus, evidence, not just bare assumptions, supports boston's 98. goodridge, 798 n.e.2d at 960-68. there is considerable debate regarding the goodridge court's education in crime and substance use 5 (2008) (finding college students more likely to commit property 59. id. at *2. the plaintiff relied on city of cleburne v. cleburne living center to support his claim that 13, 2004, at b1 (quoting older resident stating neighborhood turned into `nightmare' because of intoxicated 81. see hayward v. gaston, 542 a.2d 760, 768-69 (del. 1988) (citing belle terre and applying rational (stating aliens constitute discrete and insular political minority deserving of heightened scrutiny). governmental interests.104 the massachusetts sjc appears to apply an enhanced version of the rational depth investigation revealing that college students negatively affected in contrast to belle terre, some state courts have struck down similar zoning a. when is a right fundamental? http://www.bu.edu/community/index.html (last visited sept. 14, 2009) (describing how boston university 230 suffolk university law review [vol. xliii:217 134. see bloomsburg landlords ass'n v. bloomsburg, 912 f. supp. 790, 805 (m.d. pa. 1995) (holding argument that college students degrade residential quality of life. thus, the in contrast to the commonwealth's position in goodridge, students); adrian walker, unneighborly behavior, boston globe, sept. 4, 2007, at b1 (highlighting conflict benefits, http://www.bc.edu/offices/comaf/communitybenefits.html (last visited sept. 14, 2009) (listing in boston). development due to their transient nature.110 issue is essentially the same, as the rights of unrelated college students to live student-specific zoning ordinance under most deferential constitutional test), with kirsch v. prince george's 2007 due to three universities' economic impact); rich karlgaard, live rich in college towns, forbes, nov. necessary characteristics to warrant protected class status.135 caroline m. sallee & patrick l. anderson, michigan's university research corridor: second and policies 541 (3d ed. 2006) (defining strict scrutiny). dissent criticized the majority for interpreting the privacy provision too broadly, reasoning that voters approved despite apparent similarities, ordinances that specifically target students students. menino's report, supra, at 2-3. this number does not include the 21,683 students enrolled at three community groups, college officials, and city politicians, while landlords and students opposed the amendment. (mass. 1993) (applying enhanced rational basis test requiring evidentiary support), with fcc v. beach the political process, and a historical target of societal prejudice or discrimination. see supra notes 48-51 and follow belle terre when interpreting the massachusetts constitution. federal residents neglecting basic property maintenance and allowing their households immigrants. id. at *3 n.2. 64 (discussing state courts' invalidation of restrictive ordinances). (holding alcoholics not protected class); cordero v. coughlin, 607 f. supp. 9, 10 (s.d.n.y. 1984) (stating nature of the ordinance, even though it claimed to be applying the same rational basis test as applied under the or rational basis.40 the united states district court for the eastern district of amendment); see also u.s. const. amend. v (preventing government from taking private property for public hartzell v. connell, 679 p.2d 35, 54 (cal. 1984) (bird, c.j., concurring) (reasoning california constitution live off-campus); see also supra note 7 and accompanying text (providing statistics for undergraduate housing "a house where lodgings are let to four or more persons not within the second these institutions provide many different benefits to boston.3 iii. analysis legitimate municipal purpose). degree of kinship to the person conducting it."28 differently than traditional families.118 112. see charter twp. of delta v. dinolfo, 351 n.w.2d 831, 841-43 (mich. 1984) (criticizing belle terre recent example, the iowa supreme court considered whether a city of ames economic legislation). many scholars assert that the supreme court subtly applies a more demanding version 2008, 23:05 est) (outlining politicians' and residents' arguments supporting zoning amendment). tainted whom the classification does not include." joseph tussman & jacobus tenbroek, the equal 2004 1 (2006) (estimating sixty-four percent turnout amongst national voting age population). policies aimed at the problems associated with student residents. see heather allen, keg alert urged to crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm 50. see, e.g., city of cleburne v. cleburne living ctr., 473 u.s. 432, 445 (1985) (considering political deferential test of constitutional analysis.21 constitution); lee v. comm'r of revenue, 481 n.e.2d 183, 185 (mass. 1985) (setting forth strict scrutiny 40. see calvin massey, american constitutional law: powers and liberties 47-49 (2d ed. note 42, at � 9.2 (describing rational basis test). of societal prejudice towards college students and citing recent judicial be most concerned about whether the amendment will actually improve social homogeneity, an illegitimate governmental interest. id. lastly, they claimed the ordinance violated their 2005) (outlining three tiers of review). california is the only state that has held that unrelated persons have a additionally, courts protect college students voted in 2004), with u.s. census bureau, voting and registration in the election of 162. see mike berry, homeowners near ucf vow to stop apartments, orlando sentinel, feb. 11, commc'ns, 508 u.s. 307, 315 (1993) (noting no evidence needed under federal rational basis test). smith, 1992 wl 112247, at *3 (noting municipal investigation revealed students' presence changed character retardation.53 students and realtors slam limits; fear occupancy restrictions are discriminatory, invasive, boston similar to the ordinance in belle terre, the ordinance in ames prohibited more than three unrelated people considered the issue and held that college students are not a protected class.134 of the federal constitution.71 couples based on prejudicial assumptions), with smith v. lower merion twp., civ. a. no. 90-7501, 1992 wl a. brief history of boston zoning 96. see friedman, supra note 93, at 440 (noting goodridge indicates freedom of association infringement 10. see andreae downs, area students cram for more than finals; brighton homeowners fight the your street . . . . this is what it's all about. these streets look like times violated the equal protection clause.58 constitution does not limit state constitutions, so state courts are free to 129. kirsch, 626 a.2d at 373-75. more specifically, the ordinance required rooms used for sleeping to five is a crowd: a constitutional analysis of the boston zoning (mich. 1984) (using similar reasoning regarding under-inclusiveness). but see patrick seffrin & stephen 88 ky. l.j. 591, 635-39 (2000) (arguing temporary application of cleburne-style scrutiny replaced by return to prohibited individuals and families from living with more than one unrelated the lodging-house statute defines a lodging house as new definition because it strikes directly at the overcrowded, student-occupied use without just compensation). additional legal concerns, not based on constitutional law, exist regarding require heightened scrutiny when state action deprives an individual of a 9. see andreae downs, police get tough on off-campus partying, boston globe, mar. 15, 1998, at 141. see romer v. evans, 517 u.s. 620, 631-32 (1996) (declining to apply heightened scrutiny to the sjc have declined to apply heightened scrutiny to classifications based on 89. see, e.g., vacco v. quill, 521 u.s. 793, 799 (1997) (noting rational basis test applied when no suspect 1985) (upholding ordinance and citing belle terre); rademan v. denver, 526 p.2d 1325, 1327-28 (colo. 1974) (reasoning family sanctity fundamental based on national history and tradition); chemerinsky, supra note 42, the rational basis test is highly as a foundation, part iii analyzes the amendment's potential to receive reasoning.80 20. see u.s. const. amend. xiv, � 1 (guaranteeing individuals due process of law when deprived of life, mayor menino had previously encouraged the zoning commission to pass the amendment. see scott van heightened standard of scrutiny.59 belle terre and upholding single family dwelling ordinance). the maintenance of family values and quiet neighborhoods were legitimate depends on whether the court applies heightened scrutiny instead of rational their families faced eviction because isd determined that each family lived in 176-79 (2007) (praising application of rational basis test in goodridge), with james hart, comment, in search 90. see, e.g., heller v. doe, 509 u.s. 312, 320 (1993) (seeking rational relationship to state purpose); nordlinger v. hahn, 505 u.s. 1, 10 (1992) (stating test); city of new orleans v. dukes, 427 u.s. 297, 303 although almost half of based on sexual orientation); cleburne, 473 u.s. at 442-47 (holding mentally disabled not protected class); little power to stop large numbers of unrelated people from sharing within fundamental right to privacy); eisenstadt v. baird, 405 u.s. 438, 453 (1972) (holding fundamental right review.26 124. smith, 1992 wl 112247, at *3. cf. vill. of belle terre v. boraas, 416 u.s. 1, 8-9 (1974) (upholding one less deference while purporting to apply an identical test.93 underinclusiveness). but see goodridge, 798 n.e.2d at 1003 n.35 (cordy, j., dissenting) (arguing of jobs.4 1. application of rational basis review when legislation infringes on rights "that are important to individuals as autonomous beings and political murgia, 427 u.s. at 313-14 (rejecting heightened scrutiny for age classifications); san antonio indep. sch. application of the rational basis test. compare sigrid ulve, note, hernandez v. robles and goodridge v. in comparison to the federal rational basis test, massachusetts's i. introduction the provision to limit government surveillance, not to protect unrelated persons' rights to live together. id. at almost all college students are of legal voting age and most college students federal rational basis test). 123. id. at *1; see supra note 58 and accompanying text (explaining ordinance). the court applied boston to amend its zoning code.23 state accident ins. fund corp., 653 p.2d 970, 977-78 (or. 1982) (applying same factors when determining supreme court's expansion of the fundamental right to privacy). the sjc has also recognized that the creates neighborhood eyesores and lowers property values); editorial, cleaning up off-campus, boston under the massachusetts constitution.82 id. at 2-3. 1993) (chasanow, j., dissenting) (listing problems rationally attributed to student residents); see also supra of court acknowledged the legitimacy of the commonwealth's goals, but held that apr. 27, 2008, at b1 (explaining process of approval). to initiate the process of amending the boston zoning 65. see zablocki v. redhail, 434 u.s. 374, 384-88 (1978) (applying strict scrutiny to infringement of 151. see supra notes 78-80 and accompanying text (noting most state courts follow belle terre); supra unrelated persons have a fundamental right to live together under the scrutiny to racial classification under equal protection clause of georgia constitution); attorney gen. v. neighborhood.155 (1965) (reasoning right to privacy implicitly guaranteed in bill of rights); commonwealth v. wasson, 842 of passing the lowest level of judicial scrutiny.25 jersey, oregon, and vermont). the state supreme courts of alaska, new jersey, and vermont utilize a sliding for educated young people into the local workforce and by creating a large number by lawrence v. texas); ginzburg, supra note 74, at 897 (arguing court should overturn belle terre and adopt fail rational basis review solely because of overinclusiveness or underinclusiveness. see supra note 90 and privacy kentucky constitution protects); see also shaman, supra note 41, at 121-62 (describing and additional legal duties on landowners who rented to three or more unrelated implemented a direct limitation on off-campus student housing.11 votes on whether to approve the amendment. see id. at 183-86. if the zoning commission approves the 153. see boston city council, order regarding a text amendment for boston zoning code (highlighting belle terre facts). residences and noted that college students are actually more likely to use public transportation, ride bicycles, or dwellings that proponents believe are the main cause of neighborhood discrimination against elderly); mathews, 427 u.s. at 505-06 (considering history of discrimination against overinclusiveness and underinclusiveness while applying rational basis test); friedman, supra note 99, at 13 110. id. at 261. but see id. at 265-66 (wiggins, j., dissenting) (arguing families in college communities constitution does not guarantee right); gideon v. wainwright, 372 u.s. 335, 342-44 (1963) (incorporating 69. see michael h. v. gerald d., 491 u.s. 110, 122-24 (1989) (looking to tradition when considering and fall of restorative justice on boulder's university hill, 2003 utah l. rev. 91, 94-99 (2003) (highlighting massachusetts courts, consider the same or similar factors when making richardson, 411 u.s. 677, 686 (1973) (reasoning immutability of gender dictates heightened scrutiny for (noting goodridge holding based on broadness of marriage exclusion); hart, supra note 97, at 91 (criticizing discriminates against students); schworm, supra note 11 (quoting student comparing amendment's student- students.2 to support this presumption, nor can a challenging party disturb the factors considered). 105. id. at 9. but see dunski, supra note 83, at 859-60 (arguing belle terre ordinance irrational and whether the amendment can be enforced without violating individual privacy rights. see peter schworm, 125. smith, 1992 wl 112247, at *3. though both courts came to the same conclusion, the smith court 70. see, e.g., roe v. wade, 410 u.s. 113, 153 (1973) (holding women's right to choose encompassed the amendment may courts have come to different conclusions as to whether zoning ordinances relates to preserving quality of life.169 belle terre family-friendly neighborhood atmosphere); kirsch v. prince george's county, 626 a.2d 372, 382-83 (md. differently), with heller v. doe, 509 u.s. 312, 320 (1993) (noting state not obliged to produce evidence to pass reviews the legislation under one of three levels of scrutiny: strict, intermediate, rationality on an assumption about unrelated people and their effects on residential neighborhoods. compare (n.m. 2005) (applying intermediate scrutiny to disability classifications under new mexico constitution), with right.68 strict scrutiny when the action infringes upon a fundamental right.66 landlords association v. bloomsburg.61 to wait and see if the city of boston attempts to enforce the amended definition same fashion as federal equal protection clause); kinney v. kaiser aluminum & chem. corp., 322 n.e.2d a decline in neighborhood aesthetics. id. at 382-83. therefore, the dissent concluded the ordinance was belle terre decision); in re appeal of mcginnis, 448 a.2d 108, 112 (pa. commw. ct. 1982) (following belle 104. belle terre, 416 u.s. at 9. with the important case law campus?: an examination of college communities' responses to unruly student behavior, 35 j.l. & educ. governmental interest.152 constitution). compare village of belle terre v. boraas, 416 u.s. 1, 7-8 (1974) (holding municipality may scrutiny after adarand and shaw, 149 u. pa. l. rev. 1, 16 (2000) (listing characteristics supreme court campus. by prohibiting more than four college students from living together, support of factual evidence. compare id. at 841 (requiring basis for assuming unrelated people behave 42. see johnson v. california, 543 u.s. 499, 505 (2005) (noting strict scrutiny requirements under u.s. explicitly protect the right to privacy.150 constitutionality of a zoning ordinance that prevented a grandmother from living with her two young 39. see thompson, supra note 37 (noting zoning commission unanimously approved amendment). population). see generally thomas h. o'connor, the hub: boston past and present (2001) (outlining the new definition of "family" might also unconstitutionally protected class). 91. see vance v. bradley, 440 u.s. 93, 111-12 (1979) (upholding underinclusive and overinclusive law); challenged the ordinance, claiming that it violated numerous constitutional that the legislation substantially relate to an important government purpose.43 1. protected classes criteria considered); peter j. rubin, reconnecting doctrine and purpose: a comprehensive approach to strict 402-03 (holding massachusetts constitution affords greater protection to abortion rights than does u.s. skepticism and reasoned that belle terre clearly endorsed the legitimacy of preserving family values. id. at 163. see green, supra note 161 (quoting parent claiming youths not attending college equally likely to 145. see bloomsburg landlords ass'n v. town of bloomsburg, 912 f. supp. 790, 804 (m.d. pa. 1995) zoning ordinance violated the state constitution.107 reasons for proposed amendment); brighton centered, http://brighton-community.blogspot.com/ (mar. 12, stating that it did not intrude on the fundamental rights of association or 27. see mass. gen. laws ch. 140, �� 22-32 (2008) (defining lodging house and proscribing a reviewing court is likely to scrutinize the amendment under the lowest neighborhoods.109 tenants' conduct. id. property owners who failed to curtail their tenants' disruptive behavior faced license members of two households federal courts are unlikely to apply an enhanced rational basis test to the amendment, as this enhanced test 157. see supra note 95 and accompanying text (highlighting triggers for application of enhanced rational students). bra statistics estimate boston's undergraduate enrollment at 69,199 students. id. of the 69,199 crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm herald, jan. 19, 2006, at 36 (describing northeastern university's dorm construction efforts). 146. see bloomsburg, 912 f. supp. at 805 (holding student-specific ordinance does not infringe on courts are also more likely to grant protected class status when the class has boston, massachusetts is home to thirty-six institutions of higher education adherence to belle terre and the sjc's reluctance to expand the scope of united states district court for the eastern district of pennsylvania considered these courts were correct in their holdings, as college students do not have the 61. 912 f. supp. 790, 805 (m.d. pa. 1995). infringes on this right triggers enhanced rational basis scrutiny.96 herald, apr. 23, 2008, at 23 (arguing amendment unreasonable); boston students in protest of no more than 53. see romer v. evans, 517 u.s. 620, 631-32 (1996) (applying rational basis scrutiny to classification deferential constitutional test). finding a rational relationship because lower merion had conducted an in- therefore, the court applied rational basis review.78 crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm discussion and applying the rational basis test.81 8. see menino's report, supra note 2, at 3 (noting 12,884 of boston's 69,199 undergraduate students heller v. doe, 509 u.s. 312, 321 (1993) (noting rational basis review applied to disability classifications under in village of belle terre v. boraas,73 members. moore, 431 u.s. at 498-99. to explain the importance of this distinction, the court reasoned family the court held that an individual's right to ordinance.123 of the rational basis test. id. under the normal rational basis test, a rational relationship does not require the dissent argued that it was reasonably conceivable that an influx of students would lead to parking problems and 114. id. at 833. the ordinance defined "family" as "[a]n individual or a group of two or more persons the court freedom to cohabitate.102 the denial of marriage licenses to same-sex couples did not rationally relate to the court also reasoned unrelated 17. see richard l. cravatts, boston threatens property rights, american thinker, apr. 6, 2008, not own enough dormitories to house all their enrolled students and require college town 297-322 (2008) (providing in-depth analysis of town-gown conflict); see also good will even though these individuals probably threaten family neighborhoods more cal. const. art. i, � 1 (protecting privacy). heightened scrutiny and likelihood of passing the lowest level of constitutional ten bedrooms, and six bathrooms. id. the occupants were all young professionals, including a lawyer, a real also frequently transient). the plaintiffs argued the ordinance did not have a rational relationship because it 117. dinolfo, 351 n.w.2d at 840. to become neighborhood eyesores.10 (mass. 1993) (reasoning no fundamental right to receive mental health services). but see moe, 417 n.e.2d at illegitimate before deciding on required scrutiny). 133. see supra part ii.a.2 (discussing students as protected class). requirements under massachusetts constitution); erwin chemerinsky, constitutional law: principles 41. see clark v. jeter, 486 u.s. 456, 461 (1988) (noting heightened scrutiny under federal constitution courts have adopted federal concept of fundamental right protection). underinclusive; it can include people undeserving of regulation and exempt together in a leased dwelling.12 long as there is a rational relationship to a legitimate governmental interest.90 *2; see supra notes 59-60 and accompanying text (discussing court's rejection of heightened scrutiny for placing evidentiary burden on commonwealth). ordinance to be narrowly tailored. id. ordinances as lacking a rational basis.112 3. see boston redevelopment auth., boston still #1 college city in u.s. 3 (2002) (detailing claim it violates the "takings clause" of the fifth amendment of the u.s. constitution; however, this note serious about confronting issues associated with college students living off- rent control, http://www.spoa.com/ (last visited sept. 25, 2009) (presenting viewpoint of landlords opposed to b. application of the rational basis test 86. id. at 438. the twelve occupants lived together in a large mansion with twenty-four rooms, including context of federal and state equal protection and due process. rational relationship, even though this is unnecessary under normal rationality part ii.a summarizes the legal challenge that prompted proponents support the basis test, as this test requires only a rational relationship to a legitimate aforementioned factors, the massachusetts supreme judicial court (sjc) has intermediate scrutiny.41 consider whether the applicable constitution explicitly or implicitly protects the 2009] constitutionality of boston's student-specific zoning amendment 241 similarity in federal and state equal protection analyses, the federal fundamental right infringement subject to strict scrutiny under arizona constitution); jegley v. picado, 80 30. see sang vo v. city of boston, no. 01-11338-rwz, 2003 u.s. dist. lexis 16519, at *11-12 (d. 31. id. at *6-11. each family lived in an apartment that they shared with another unrelated vietnamese residential districts strictly for "family" habitation.14 the court considered the township charged the plaintiffs with violating the ordinance crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm 169. compare goodridge, 798 n.e.2d at 968 (concluding denial of marriage licenses to homosexual supra note 5, at 429 (linking proximity to college students to higher rate of community disturbances). 66. see hunter contracting co. v. superior court, 947 p.2d 892, 894 (ariz. ct. app. 1997) (stating supra note 6, at 298-300 (chronicling history of newark citizens abusing delaware college students); j.m. between long-time boston resident and student neighbors). qualities by limiting the threat of overpopulation and congestion.105 elimination of "all evils of the same genus" not required); chemerinsky, supra note 42, at 686-87 (describing 85. id. at 438-39. it is rational to assume that reducing overcrowded student-occupied http://www.towngownworld.com/communityplanning/licencinghmos.html (claiming amendment will reduce the amendment. if not, then questions regarding the amendment's legality will cohabitants within fundamental right to privacy protected by the california constitution); see also sara dunski, governmental interest. see infra notes 90-93 (detailing rational basis test). crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm 258-63 (iowa 2007). the specific targeting of students did not change the result as (highlighting state courts striking down ordinances under rational basis review); dunski, supra note 82, at 863- (denying mentally disabled protected class status); goodridge v. dep't of pub. health, 798 n.e.2d 941, 961 restricted single family zoning districts to persons related by blood, marriage, or adoption. 494 n.e.2d 1342, hearing bd., 621 a.2d 1208, 1211 (pa. commw. ct. 1993) (reasoning preservation of family neighborhoods overinclusion). domiciles significantly disrupt their neighborhoods. the city of boston should 686 (noting women underrepresented in political offices); graham v. richardson, 403 u.s. 365, 371-72 (1971) future expansion of housing in the area, boston globe, july 3, 2007, at c1 (examining suffolk university's reporters not suspect class); williams v. sec'y of executive office of human serv., 609 n.e.2d 447, 456-57 a protected class, as college students do not possess the characteristics that crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm test.158 2009] constitutionality of boston's student-specific zoning amendment 231 court's apparent endorsement of enhanced rational basis test for sexual orientation classifications). kirsch amendment prohibiting more than four college students from persons in general do not.120 students.128 nationality); see also chemerinsky, supra note 42, at � 9 (outlining supreme court's equal protection c. the rational basis test 122. civ. a. no. 90-7501, 1992 wl 112247 (e.d. pa. may 11, 1992). zoning hearing bd., 621 a.2d 1208, 1212 (pa. commw. ct. 1993) (holding students not protected class). goodridge decision indicates legislation can fail massachusetts's enhanced afford a right more protection under a state constitution than the united states in goodridge, the sjc held that the denial of marriage licenses approval in march 2008.37 4. see ass'n of indep. colls. & univs. in mass., engines of economic growth: the economic important question of all is whether the city of boston can effectively enforce 3. rationality of student-specific ordinances most state courts have followed the supreme court's belle terre reasoning if the legislation discriminates against a suspect class or status under either the federal constitution or the massachusetts underinclusiveness.156 fundamental right, courts generally review constitutional challenges to that public policy 104-09 (2007) (providing detailed description of goodridge decision and subsequent political "necessary to protect residential quality of life"). and congestion.111 williamson v. lee optical of okla., inc., 348 u.s. 483, 489 (1955) (reasoning legislators may address crane_note_wdf (page proof) (do not delete) 1/7/2010 12:49 pm educ. v. w. va. bd. of educ., 639 s.e.2d 893, 899 (w. va. 2006) (recognizing fundamental right to education specific amendment in order to re-establish a limitation on large, shared living triggers enhanced rational basis test). in a broad sense, enhanced rational basis scrutiny is apparently triggered