Judge orders in-state tuition for some immigrants in Georgia

State Board of Regents says it will appeal surprise ruling
Atlanta immigration attorney Charles Kuck talks with plaintiffs outside the Fulton County Superior Court in December. MIGUEL MARTINEZ/MUNDO HISPANICO

Atlanta immigration attorney Charles Kuck talks with plaintiffs outside the Fulton County Superior Court in December. MIGUEL MARTINEZ/MUNDO HISPANICO

In a stunning decision that alters the immigration debate in Georgia, a Fulton County judge has ruled the state must permit residents who have been granted a special reprieve from deportation by the Obama administration to pay in-state tuition at state colleges and universities.

Released Tuesday, the ruling by Fulton Superior Court Chief Judge Gail Tusan says the state has improperly refused to extend in-state tuition to this group, which the federal government has declared “legally present” in this country.

“I really didn’t think we would actually win this because of all the other decisions we had in the past,” said Rigoberto Rivera, a plaintiff and Roswell High School graduate who was brought to the U.S. from Mexico as a child. “We’re so excited here.”

Rivera said he may now apply to Georgia State University to study political science and criminology.

The ruling comes nearly four years after Rivera and fellow plaintiffs began their legal odyssey, which at one point reached the Georgia Supreme Court. But the legal battle is not over.

The Board of Regents issued a statement Tuesday evening, saying it would appeal the judge’s decision. “We believe our policy follows the law,” Charles Sutlive, a spokesman for the board, said in a statement. “As the Superior Court’s decision will remain on hold during the appeals process, our current in-state tuition policy will remain in effect.”

Further, Republican state Sen. Josh McKoon of Columbus reiterated on Tuesday that he would file a countermeasure in the legislative session that starts this month. McKoon’s bill would prohibit anyone without legal status from paying in-state tuition at Georgia’s public colleges. In-state rates are three times — or thousands of dollars — less expensive than out-of-state rates.

Meanwhile, activists on both sides are watching to see whether President-elect Donald Trump will make good on his promise to cancel the Obama administration policy at the heart of the legal dispute in Georgia. Deferred Action for Childhood Arrivals, or DACA, grants work permits and temporary deportation reprieves to immigrants who were brought to the U.S. as children without authorization.

Ten DACA recipients living in Georgia sued the Board of Regents in Fulton County Superior Court for the ability to pay the in-state rate.

‘A defect of legal justice’

A 2008 state law says noncitizens cannot pay that rate unless they are “legally in this state.” A Board of Regents tuition policy closely tracks that law. The plaintiffs in the case, assisted by local immigration attorney Charles Kuck, pointed to federal records that say DACA recipients are lawfully present in the U.S.

The concept of “lawful presence” is key to the ruling. Judge Tusan wrote that officials of the University System of Georgia are “hereby compelled to perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA recipients and to grant them in-state tuition status.”

Tusan continued, “Defendants have refused to accept the federally established lawful presence of plaintiffs and many other similarly situated students — students who are Georgia taxpayers, workers, and graduates of Georgia public high schools pursuing an affordable option for higher education.

“Such refusal of a faithful performance of their duties is unreasonable and creates a defect of legal justice that has already negatively impacted thousands of Georgia students.”

This is the plaintiffs’ second attempt to reverse the tuition policy for DACA recipients. Last year, the Georgia Supreme Court unanimously rejected their first attempt, saying sovereign immunity — the legal doctrine that protects state agencies from being sued — shields the Board of Regents from such lawsuits.

‘You have to draw a line’

Plaintiff Josafat Santillan cheered Tusan’s ruling. Santillan, a Stone Mountain resident who was granted DACA after coming here from Mexico and overstaying his tourist visa, is studying geography part-time at Kennesaw State University while working full-time at a steel processing plant to help pay for his education. He said he could go to school full-time and finish his degree sooner if he is allowed to pay the in-state tuition rate.

“We knew if we could get the case through all the obstacles that the court would find in our favor,” he said. “It’s been a long time coming.”

More than 28,000 people in the state like Santillan have been granted DACA, federal records show. But it’s unknown precisely how many have graduated from high school and want to pay in-state tuition.

While defending Georgia’s in-state tuition policy last month in Tusan’s courtroom, Senior Assistant Attorney General Russell Willard referred to Trump’s vow to cancel DACA, saying: “There is going to be a new administration in January. And the future of the DACA program is very much in doubt with the incoming administration.”

McKoon, the Georgia state senator from Columbus, said Tusan’s ruling has created new urgency for his legislation. He said his measure would change state law to say only those with “legal status” in the U.S. could pay in-state tuition.

“At a certain point,” he said, “most people would say you have to draw a line in terms of public benefits. And it is a reasonable line to draw to say if you are in the country without lawful status, you should not be conferred taxpayer funded benefits, including in-state tuition.”

‘A very clear ruling’

The ruling has implications for several other related court cases. The Mexican American Legal Defense and Educational Fund has filed two lawsuits in federal court seeking to reverse the tuition policy for DACA recipients as well as a second state rule that bars them from attending some of its top universities. That policy now applies to the University of Georgia, Georgia Tech and Georgia College & State University.

Tusan’s ruling shows DACA recipients should be allowed to attend those universities, said Burth Lopez, a staff attorney for the Mexican American Legal Defense and Educational Fund.

Twenty states allow immigrants without legal status to pay in-state tuition, according to the National Conference of State Legislatures. In addition to Georgia, seven states have been blocking them from attending some or all public colleges and paying in-state tuition. South Carolina, for example, bars them from all of its state colleges and universities.

“The ball is really in their court,” Lopez said of Georgia officials. “They have a very clear ruling as to what the law is and what the law requires and we are expecting them to change their policy.”

Debbie Dooley, a Lawrenceville resident, Trump supporter and a founder of the tea party movement, said she sympathizes with immigrants who were brought to the U.S. as children. But she disagrees with how President Barack Obama started the DACA program and wants Trump to cancel it.

“I think President Obama’s executive action on DACA was unconstitutional because he bypassed Congress,” she said, “and I am going to be urging – and I think there will be a lot of conservatives urging — President Trump to rescind the executive order on DACA.”