In support of the 10 students seeking in-state tuition under the DACA law, young people fill the courtroom during oral arguments at the Georgia Court of Appeals on Thursday.
In support of the 10 students seeking in-state tuition under the DACA law, young people fill the courtroom during oral arguments at the Georgia Court of Appeals on Thursday. (John Disney/ALM)

The state of Georgia is fighting to prevent undocumented students living in Georgia and permitted to remain here under an Obama administration policy from qualifying for in-state tuition at the state’s colleges and universities.

At the Georgia Court of Appeals Thursday, Assistant State Attorney General Russell Willard argued on behalf of the state Board of Regents, which operates Georgia’s public university system, that a Fulton County judge got it wrong last year when she determined that the undocumented college students are lawful residents by virtue of their status under former President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) policy. The judge’s ruling meant that undocumented students approved for the DACA program were eligible for in-state rather than higher out-of-state tuition fees.

Willard said the federal government’s decisions to defer action on whether to deport the students was not enough to make them legal residents of Georgia or confer on them a legal status that would qualify them for in-state tuition.

Immigration attorney Charles Kuck, who represents 10 Georgia DACA students challenging the state, insisted that Fulton County Superior Court Judge Gail Tusan was right when she directed the Board of Regents last year to grant in-state tuition status to undocumented students enrolled in the federal DACA program who were living in Georgia.

“If they otherwise meet the standards, it is an injustice to say they can live here full time and not pay in-state tuition,” Kuck said. “If the board didn’t want these kids to have in-state tuition, the board could have changed its policy. The board hasn’t done that. They want these kids to have in-state tuition. They just don’t want to come out and say it [because] there are political ramifications. … The Board of Regents is playing politics.”

Thursday’s arguments before Judges Sara Doyle, Clyde Reese and Yvette Miller rested in part on a legal definition of what constitutes a “lawful resident” and whether the DACA designation sufficed to meet the regents’ in-state tuition policy requirements for noncitizens who are legally living in the state.

Many, if not all, of the students are so-called Dreamers, the term referring to the proposed Development, Relief and Education for Alien Minors bill. It would have created a citizenship path for undocumented individuals brought to the U.S. as children who have grown up in the states and view this country as home. The failure of the U.S. Congress to pass the bill in part led Obama to create the DACA program.

Despite President Donald Trump’s emphasis on stepping up deportations, so far his administration has not revoked the DACA program. But since 2010, when Georgia joined other states in passing harsh immigration statutes intended to discourage undocumented immigration and prevent those already in Georgia from securing public benefits, state legislators have challenged in-state college tuition as a benefit to which an undocumented student should not be entitled.

In arguing the state’s case, the assistant state attorney general insisted that the Fulton judge had no authority to order the regents—who were sued individually rather than in their official capacity as state agents—to award in-state tuition status to the plaintiff students. He also suggested that the regents’ actions in denying in-state tuition status were protected by the blanket of official immunity.

When Doyle asked Willard what the regents meant by the term “lawful presence” in order for students to qualify for in-state tuition, Willard replied: “Only ones … who can show they are legal citizens in the state of Georgia.”

When both Doyle and Miller questioned whether the regents had any discretion to grant students with DACA status the right to pay in-state tuition, Willard contended that they did not.

Kuck countered that the federal government controls who is lawfully in the U.S., not the state, including those granted DACA status. Despite the heated immigration rhetoric of the Trump administration, he said, “Nothing has changed in the DACA program.”

Kuck told the appellate panel that when the appellate court last year stayed Tusan’s order—preventing the regents from reinstating instate tuition for the students who had sued—”My clients and thousands like them lost two more semesters in school.”

He said the decision not to recognize students with DACA status as legal residents “is unjust. It is immoral. It should no longer be allowed to continue.”