Illegal aliens in Georgia and Virginia are suing higher education agencies in their states to win access to taxpayer-subsidized in-state tuition rates. The illegal aliens claim they are eligible for the lower rates because they were granted a two-year stay of deportation under the Obama Administration’s Deferred Action for Childhood (DACA) Arrivals program.
A 2009 Georgia law prohibited anyone without “lawful status” from attending institutions of higher education. The Georgia Board of Regents, which oversees student eligibility and tuition rates, subsequently adopted a policy that requires all Georgia public institutions to verify the "lawful presence" of all students seeking in-state tuition rates. “Lawful status” is different that “lawful presence” but the discrepancy between the law and the Board’s ruling has not been addressed in the courts. After the Department of Homeland Security in August 2012 announced the DACA program, the Board ruled that DACA recipients would not be eligible to attend or receive in-state tuition.
The lawsuit brought by Charles Kuck, an illegal-alien advocate and attorney, on behalf of the illegal-alien plaintiffs says that the Board issued its decision before DHS in late 2012 announced DACA recipients had lawful presence. “If someone has lawful presence in the state and in the United States,” Kuck said, “they are allowed to get in-state tuition.”
The Georgia Board of Regents could nullify the lawsuit by simply making its rules consistent with state law that requires lawful status. Doing so would likely prompt the judge to dismiss the case because DHS’ web site specifically states the DACA program does not confer legal status.
But even if the Board does not change its rules, the judge would likely consider Section 505 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Title 8, Chapter 14, Sec. 1623(a)) which states: “an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary educational benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount duration, and scope) without regard to whether the citizen or national is such a resident.” State law takes the reverse position by barring those without legal status from even attending institutions of higher education.
In 2003, the Virginia legislature passed a bill to bar illegal aliens from receiving in-state tuition, but the governor vetoed the measure. The state attorney general subsequently issued a ruling that says existing state law requires applicants to submit proof of citizenship or legal residency (status). Those without the appropriate documentation should be refused admisstion. The ruling, however, was not a state law so some institutions accepted illegal aliens but treated them as foreign students who must pay out-of-state rates.
The lawsuit the Immigrant Advocacy Program filed says the Council of Higher Education for Virginia must give the plaintiffs access to in-state rates because DHS granted them legal presence under DACA and they fall under the Council's criteria. The Council’s rules grant in-state status to people who have lived in the state for at least 12 continuous months prior to enrollment and show “an intent to remain in Virginia indefinitely to establish domicile in Virginia.”
According to the plaintiffs' complaint, the Council notified institutions around the state via email that the 7,000 illegal aliens granted relief under DACA are not eligible for in-state tuition. “Technically, nothing has changed in the legal status for these individuals,” read the email. “This will allow qualifying students to work and go to school without fear, but it does not change their lawful status or their domicile.”
The plaintiff’s lack of legal status will likely be a key factor in the case, as will the 1996 federal law that bars in-state tuition for illegal aliens unless a state treats out-of-state citizens in the same manner.
Updated: Fri, Dec 27th 2013 @ 10:18pm EST