Attorneys are preparing to square off Friday before the Georgia Supreme Court over a contentious issue now at play in the presidential race: Whether immigrants without legal status should be allowed to pay substantially lower in-state tuition rates at public universities.
In the making for more than a year, the legal case focuses on people who have been granted a temporary reprieve from deportation under the Obama administration's Deferred Action for Childhood Arrivals program. The program applies to immigrants who were illegally brought here as children and attended school here and haven't been convicted of felonies.
The topic came up during this week’s Democratic presidential debate, when former Secretary of State Hillary Clinton said she would encourage states to allow immigrants without legal status to pay in-state tuition. In contrast, real estate mogul Donald Trump, who is seeking the Republican presidential nomination, would end the DACA program.
Twenty-one states now allow students with no legal status in the United States to pay in-state tuition, according to the National Conference of State Legislatures. Lawmakers in eight other states, including Georgia, have introduced bills this year to make that happen. Georgia’s Senate Bill 44, however, never got out of committee during the legislative session that ended in April.
The issue is significant for DACA recipients because they don’t qualify for federal student aid and many say they can’t afford to pay Georgia’s out-of-state tuition rates, which are several thousand dollars higher than the in-state rate.
The plaintiffs in the lawsuit say Georgia’s policy is self-defeating. Immigrant students granted deferred action could get better jobs, pay more taxes and boost Georgia’s economy, the plaintiffs said, if they could attend college in the state. Critics argue that taxpayer-funded benefits should be reserved for U.S. citizens and legal residents.
The Georgia Supreme Court agreed to hear the case after the 39 plaintiffs — all DACA recipients — lost in Fulton County Superior Court and the Georgia Court of Appeals. Both courts ruled that sovereign immunity shields the Board of Regents from such lawsuits.
The high court will hear arguments – 20 minutes from each side – in Ellijay Friday about whether that is the correct decision. If the plaintiffs win, the case could go back to the Fulton court for a ruling on Georgia’s in-state tuition policy.
That policy requires “lawful presence.” So the plaintiffs are pointing to federal records that say DACA recipients are legally present in the United States. Asked to comment on the case, Georgia Attorney General Sam Olens referred to his office’s court filings, which dismiss those federal records as “simply answers to frequently asked questions on a website designed to educate the public generally. They have not been promulgated under the federal Administrative Procedure Act, they have no force and effect of law, and they have no bearing on the case.”
The Georgia Supreme Court is not expected to issue a decision Friday. Most of its cases are decided within six months of oral arguments.
It’s unknown precisely how many people could be affected by the court’s decision. A University System survey found there were 501 “undocumented” students enrolled in its institutions in fall 2010. As of June, 681,345 people have been approved nationally for the DACA program since it started in 2012. Of those, 21,154 are Georgians.
Among them is Josafat Santillan of Stone Mountain. Santillan, one of the plaintiffs in the legal case, was granted deferred action after coming here from Mexico and overstaying his tourist visa. Hoping to one day start a career in the real estate assessment industry, he is studying geography part-time at Kennesaw State University. He said he could go to school full-time and finish his degree faster if he would be allowed to pay the lower in-state tuition rates. Instead, he is now working full-time at a steel processing plant to help pay for his education.
“It hinders me because I have to work longer hours,” he said of Georgia’s in-state tuition policy. “And it has to be fewer classes.”
The Georgia Board of Regents declined to comment.
Last month, the Georgia Budget and Policy Institute — a left-leaning think tank — issued a report that says barring some immigrant students from in-state tuition rates costs Georgia about $10 million in lost tax revenue each year, by decreasing access to higher education and better-paying jobs.
Charles Kuck, the attorney for the plaintiffs in the legal case, said there is “no rational economic reason” for Georgia’s in-state tuition policy.
“The more money you earn in your lifetime, the more taxes you pay in your lifetime,” said Kuck, an Atlanta area immigration attorney. “It’s very simple economics. Everybody has learned it Econ 101.”
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