Immigrant college students lose Georgia Supreme Court appeal for in-state tuition

From the State Supreme Court this morning:

There have been many public protests in Georgia against Regents policies that force children of illegal immigrants to pay out-of-state tuition and deny them entry to the research campuses.
There have been many public protests in Georgia against Regents policies that force children of illegal immigrants to pay out-of-state tuition and deny them entry to the research campuses.

Credit: Maureen Downey

Credit: Maureen Downey

In a ruling today by the Supreme Court of Georgia, college students who are not U.S. citizens have lost their appeal of a Georgia Court of Appeals decision upholding the dismissal of their lawsuit by a Fulton County judge. The students were asking the high court to rule that they are entitled to cheaper in-state tuition at Georgia’s colleges and universities.

In today’s unanimous opinion, however, Justice Harold Melton writes for the court that the Board of Regents, which governs the state’s university system, is immune from the students’ lawsuit under the doctrine of sovereign immunity, which is the legal doctrine that protects the state government and its agencies from being sued.

“It is settled that the Board is an agency of the State to which sovereign immunity applies,” the opinion says.

According to the facts of the case, in 2010, the state Board of Regents amended its policy manual to require that all students who wish to attend any institution in the University System of Georgia be “lawfully present” in the United States. The policy manual also required that for any non-citizen student to receive in-state tuition, the student had to be “legally in this state.” On June 15, 2012, the U.S. Department of Homeland Security established the “Deferred Action for Childhood Arrivals” program, which allows certain young people who are in the country illegally to remain here for at least two years without fear of removal.

Miguel Angel Martinez Olvera and other non-citizen college students who are beneficiaries of the federal deferral program, filed a lawsuit against the Board of Regents seeking a “declaratory judgment” from the trial court that they are “lawfully present” in Georgia and are therefore entitled to in-state tuition. The Board of Regents claimed they were not in “lawful status” in this country. (A “declaratory judgment” is one that declares the legal rights of the parties and asks the court to give its opinion on a question of law, but it does not award damages or order that any action be taken or stopped.)

In response to the lawsuit, the Board of Regents filed a motion to dismiss the case, claiming the students’ lawsuit was barred by “sovereign immunity.” The trial court granted the motion, the students appealed, but the Court of Appeals upheld the lower court’s decision. The students then appealed to the Georgia Supreme Court, which accepted their “petition for certiorari” to determine whether the Court of Appeals erred in ruling that a legal action seeking a declaratory judgment was barred by sovereign immunity.

“The sweep of sovereign immunity under the Georgia Constitution is broad,” today’s opinion says. “It provides: ‘Except as specifically provided in this paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly….’”

In the Supreme Court’s 2014 decision in Georgia Dept. of Natural Resources v. Center for a Sustainable Coast, “we recently explained the extensive nature of sovereign immunity. ‘The plain and unambiguous text of the 1991 constitutional amendment shows that only the General Assembly has the authority to waive the State’s sovereign immunity,’” the opinion says. “Therefore, absent some exception, the Board is immune from the declaratory judgment action brought by the students.”

In previous cases, the state Supreme Court has avoided answering whether this sort of declaratory judgment action against the State is barred by sovereign immunity. “In this opinion, we squarely address that question and find that declaratory judgment actions of this type are, in fact, barred by the doctrine of sovereign immunity,” the opinion says in a footnote.

The high court has also rejected the students’ argument that the Board’s immunity is waived under the state’s Administrative Procedure Act, “and the students have pointed to no other source of law containing an explicit waiver of the Board’s sovereign immunity in this matter.”

Today’s opinion notes, however, that, “Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse. It means only that they must seek relief against such officers in their individual capacities.”

“At this point in time, however, the students have not attempted to follow this route.”

Back to Maureen: As the AJC reports, this legal battle may continue. "The attorney for the 39 plaintiffs in the case said Friday they would sue the members of the Georgia Board of Regents individually, if the Georgia Supreme Court rejected their claim as the court did Monday. The plaintiffs have scheduled a news conference for 10 a.m. Monday to announce their next steps."

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