Georgia Supreme Court rejects in-state tuition appeal

Georgia’s highest court on Monday unanimously rejected an appeal aimed at allowing immigrants without legal status to pay substantially lower in-state tuition rates at the state’s public colleges and universities.

But the long-running legal battle is not over. Shortly after the Georgia Supreme Court’s ruling became public, the attorney for the 39 plaintiffs announced they would soon file a lawsuit against each member of the Georgia Board of Regents, hoping to force them to reverse course.

The contentious issue at the center of the case has surfaced in the presidential election and in Georgia's Legislature, where a related Democratic-sponsored bill has been stalled in committee since last year. Many other states have also been wrestling with the thorny topic.

The legal case focuses on students who have been admitted into a controversial Obama administration program called Deferred Action for Childhood Arrivals, or DACA. The program averts deportation and grants work permits to immigrants who were illegally brought to the U.S. as children, who don’t have felony convictions and are enrolled in school here.

In its six-page ruling Monday, the Georgia Supreme Court said sovereign immunity — the legal doctrine that protects state agencies from being sued — shields the Board of Regents from the lawsuit, filed more than a year ago. The ruling upholds a decision by the Georgia Court of Appeals, which like the Fulton County Superior Court said the Board of Regents is immune from the lawsuit.

Justice Harold Melton indicated the plaintiffs could go another route. “Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse,” he wrote, quoting from another court decision. “It means only that they must seek relief against such officers in their individual capacities.”

Charles Kuck, the plaintiffs’ attorney, said he would move quickly to do just that and file new suits naming the individual Regents. The plaintiffs are prepared to file suit in federal court as well, Kuck said

“Why are we depriving them of an education? Why are they (being deprived) of the ability to make more money to pay higher taxes in the state of Georgia?” Kuck said at a news conference Monday, flanked by several of the plaintiffs. “This literally makes no sense. And there is nobody at the Board of Regents who can tell you how this makes any sense.”

These students can attend most of Georgia’s public colleges, but must pay the higher tuition rate that non-Georgia residents.

The legal case is important for DACA recipients because they don’t qualify for federal financial aid and many say they can’t afford Georgia’s out-of-state tuition rates, which are thousands of dollars higher than the in-state rates. For example, undergraduate in-state tuition for full-time students at Georgia State University Perimeter College is $1,363, compared to the $5,150 out-of-state rate. Kennesaw State’s in-state semester rate is $2,660; out-of-state is $9,388.

The Board of Regents released a statement defending its in-state tuition policy.

“Our policy was adopted several years ago to mirror a new state law,” the board’s statement said. That law required public colleges and universities “to ensure that only students who could demonstrate lawful presence were eligible for certain benefits, including in-state tuition. That law remains in effect, and, therefore, so will our policy.”

But because Georgia’s in-state tuition policy requires “lawful presence,” the plaintiffs have pointed to federal records that say DACA recipients are legally present in the U.S. In court filings, the Georgia Attorney General’s Office has dismissed those federal records as “simply answers to frequently asked questions on a website designed to educate the public generally. They … have no force and effect of law, and they have no bearing on the case.”

The exact number of people are affected by Georgia’s policy is unknown, though Kuck estimated Monday it’s somewhere between 5,000 and 10,000. A University System enrollment survey from 2010 found 501 “undocumented” students. As of September, 699,832 people had been approved for the DACA program since it started in 2012. Of those, 21,813 are Georgians.

Among the plaintiffs is Ivan Morales, 21, of Buckhead. His parents illegally brought him from Mexico to Georgia when he was seven. Morales is studying for an associate degree in sports management at Georgia State University Perimeter College. Because he must pay the higher out-of-state tuition rate, he said, it will take him twice as long to graduate than he had hoped.

“We are not going to stop fighting,” said Morales, who has been working as a soccer coach and waiting tables to help pay tuition. “We are going to keep going with this legal battle.”

The topic has emerged in the presidential race, where former Secretary of State Hillary Clinton has said she would encourage states to allow immigrants without legal status to pay in-state tuition. Real estate mogul Donald Trump would end the DACA program.

Twenty-one states now allow students with no U.S. legal status to pay in-state tuition, according to the National Conference of State Legislatures. Lawmakers in eight other states, including Georgia, introduced bills last year to make that happen. Georgia's Senate Bill 44 has not made it out of committee since it was introduced last year by state Sen. Nan Orrock, D-Atlanta.