Georgia Supreme Court: No In-State Tuition for Illegal Aliens
By Shari Rendall | May 11, 2018
Less than a month after Arizona, another state supreme court has said no to in-state tuition for illegal aliens. In a one-page order, the Georgia Supreme Court on May 7 declined to review a lower-court ruling, thus letting that decision stand.
On October 24 of last year, the Georgia Court of Appeals ruled in Alford v. Hernandez that illegal alien “DACA” recipients could not receive in-state tuition. This in turn reversed a state trial court that had ordered the University System of Georgia’s Board of Regents to grant them the in-state rate.
In 2011, the Georgia legislature passed Senate Bill 492, which specifically provides that “[n]oncitizen students shall not be classified as in-state for tuition purposes unless the student is legally in this state…” [emphasis added] To implement this law, the Board of Regents adopted Policy 4.3.4, requiring that “[e]ach University System institution shall verify the lawful presence in the United States of every successfully-admitted person applying for resident tuition status.” The trial court tried to get around both the state law and the Regents policy by concluding that in creating DACA, the Obama Administration made its recipients “lawfully present” as a matter of federal law, and thus required under Georgia law to receive in-state tuition if they met the other residency requirements.
The Georgia Court of Appeals reversed because it recognized that DACA recipients are not “lawfully present”: they are still illegal aliens. Only Congress, the court held, can establish legal criteria and processes for an immigrant to be lawfully present. DACA, by contrast, is not law but merely an executive policy of “prosecutorial discretion.” Even numerous Obama Administration officials in establishing and administering the program repeatedly admitted as much, as the court noted.
The court looked favorably to other courts that had considered the issue, notably the Arizona Court of Appeals, which recognized that “Congress has not defined DACA recipients as ‘lawfully present’ for purposes of eligibility for in-state tuition or other state or local public benefits.” Indeed, as the Missouri Court of Appeals stated and the Georgia court also quoted with approval, “[i]f DHS, a federal executive agency, had the power to create a new immigration status [through DACA] and confer it upon any individuals it desired, this would be an unconstitutional end-run around the principle of separation of powers.”
The Georgia Court of Appeals, unlike many states’ intermediate appellate courts, is not broken down into smaller geographic districts but covers the entire state. Therefore, its rulings are binding precedent throughout the state unless overruled by the Georgia Supreme Court, which the Georgia Supreme Court just declined the chance to do. While only controlling in Georgia, the Court of Appeals’ opinion is still “persuasive authority” that other states can and should strongly consider.
As in most states, in-state tuition in Georgia is an immense public benefit to those who qualify for it. Across the Peach State’s 26 public institutions of higher learning, the out-of-state per-semester and per-credit rates are typically more than three times the in-state rates. The Georgia courts have now rightly ensured that those benefits only go to U.S. citizens and legal residents.