The Supreme Court of Georgia will hear oral arguments in the DACA in-state tuition case on October 16, 2015 at 10:00 am, at the Gilmer County Courthouse in Elijay, Georgia.
- The Board of Regents. The Board of Regents of the University System of Georgia is the governing body of the 35 institutions of higher learning in the state of Georgia. Comprised of 19 members appointed by the governor, the Board is tasked with promulgating the rules and policies that govern these institutions. The Board has the authority under the Georgia state constitution to enact and announce its policies.
- The Policy at Issue. The Board of Regents policy manual states, “A person who is not lawfully present in the United States shall not be eligible for admission to any University System institution . . .” The Board of Regents has set a requirement that individuals must be lawfully present in the United States to qualify for in-state tuition.
As stated by the Department of Homeland Security—the pre-emptive federal authority regarding immigration law—Deferred Action of Childhood Arrivals (DACA) recipients are lawfully present. They have stated, “An individual who has received deferred action is authorized by the Department of Homeland Security (DHS) to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.”
The Board of Regents has many options available to it in how it determines which individuals qualify for in-state tuition, but an unconstitutional, discriminating, and unlawful interpretation of its own policy manual is not one of them.
- The Procedural History and Sovereign Immunity. Unfortunately, the merits of this issue have not even been considered by the court because the trial court and court of appeals found that the Board of Regents is protected by the common law doctrine of sovereign immunity. Sovereign immunity protects the public coffers by limiting who can bring legal action against the government.
The trial and appellate courts who have heard this case have held that the Board of Regents is protected by sovereign immunity, even though the plaintiffs in this case are not seeking any financial or injunctive relief. They have simply asked for the court to declare what the law is, specifically, if the Board of Regents’ policy manual requires lawful presence then it means lawful presence.
- The Arguments. In February 2014, the Supreme Court of Georgia expounded on the doctrine of sovereign immunity in a case called Sustainable Coast stating, “sovereign immunity bars injunctive relief against the State at common law.” The Board of Regents argues that this means state agencies, including the Board itself, are protected from suit, unless the Georgia State General Assembly expressly states they can be sued.
Counsel for the plaintiffs argues that the holding does not apply to this suit because its specific legal action does not request any injunctive or financial relief of any kind. The holding of Sustainable Coast says that sovereign immunity bars injunctive relief against the State, it does not say that it bars actions for mere declaratory judgment as the plaintiffs have sought in this case.
The Implications. Thousands of qualified students are losing the opportunity to attend universities in the state of Georgia because they are being denied in-state tuition on the basis of the lawful presence standard. A finding in their favor would force the Board of Regents to either apply their policy as it is written or change their policy to announce the Board’s true standard. In doing that the Board would rightfully take on political fire for denying in-state tuition to thousands of Georgians who are lawfully present in the United States under any interpretation of federal immigration law.
