Thu., December 5, 2013 4:10pm (EST)

Undocumented Immigrants Sue To Go To College
By Jeanne Bonner
Updated: 8 months ago

DECATUR, Ga.  —  
A case pitting undocumented college students against the University System of Georgia began Thursday in DeKalb County Superior Court. The case pivots on whether it’s a violation of federal policy to bar the students from top public colleges.
A case pitting undocumented college students against the University System of Georgia began Thursday in DeKalb County Superior Court. The case pivots on whether it’s a violation of federal policy to bar the students from top public colleges.
A case pitting undocumented college students against the University System of Georgia began Thursday in DeKalb County Superior Court. The case pivots on whether it’s a violation of federal policy to bar the students from top public colleges.

The first court appearance concerned one simple question: whether the case should proceed in Fulton or DeKalb County.

Speaking to a packed courtroom, Judge Mark Anthony Scott noted a “strong interest” in the case. But he said he needs more time to decide where it should proceed.

On top of barring undocumented students from some schools, the Board of Regents requires them to pay out-of-state tuition at others.

Does 'Lawful Presence' Mean Legal?

Most of the students suing now have what’s called “lawful presence” through Pres. Obama’s 2012 Deferred Action for Childhood Arrivals program. The initiative, known as DACA, allows them to obtain temporary work permits and a driver’s license.

Attorney Chuck Kuck, who represents the students, says the Board of Regents policy uses that same phrase – lawful presence. And he says his clients simply want the state to follow its own rules.

“The Board of Regents could change the policy tomorrow,” he said after the hearing. “Even if we win the lawsuit, the Board of Regents could then change the policy and say, ‘No we’re not going to allowed students who have lawful presence to pay in-state tuition.’

The state argues the Obama initiative does one thing only: delay deportation.

Policy Probably Legal

Emory University law professor Polly Price says the state is right.

And while the courts have said states cannot bar undocumented residents from grade school, it’s a different story when it comes to college.

“States with their own state colleges, they can make those kinds of distinctions,” she said in an interview. “They can say that non-documented immigrants can’t attend. So it’s not the same set of constitutional rights that primary education has.”

She added, “I’d say it’s wrong as a policy matter. But in terms of the law, they’re going to win this lawsuit. That’s just sort of my prediction. And it’s mainly because DACA doesn’t extend the legalization. It’s just really just deferred for now.”

In court filings, the Attorney General has also argued the students haven’t exhausted all of their options, such as appealing any rejections they may have received from schools.

Undocumented Are Taxpayers Too

Raymond Partolan, an undocumented student from Macon who attended the hearing, summarized another argument he’s heard from the Board of Regents and others.

“An objection that people have to immigrants paying in-state tuition is that they’re not taxpayers so they shouldn’t be reaping a public benefit like public education,” he said. “But if they are taxpayers, then it’s not fair that they aren’t allowed to receive a public benefit like in-state tuition.”

And he says, most of them are in fact taxpayers.

“Even if they don’t have Social Security numbers, some have individual taxpayer numbers or ITNs so they pay state, local and federal taxes,” he said.

Partolan attends Mercer University in Macon. And he illustrates a division that now exists within the undocumented community. Partolan is able to attend college for two reasons. Mercer is private and can offer acceptance to any student it desires. And the school has given Partolan, the student body president and a native of the Philippines, a full scholarship.

He acknowledges he’s one of the lucky ones.

“I’ve been afforded an opportunity that others haven’t been afforded,” he said. “And I feel an obligation to fight for people who don’t have the same opportunity. I think it’s an injustice that needs to be corrected.”

Delays Both Here And In Washington

State officials declined to comment. In court, the judge stayed the proceedings for two months so he can determine if the case should proceed in Fulton or DeKalb County. And as one undocumented student said Thursday, it creates another delay.

It’s likely, for example, that if the judge moves the case to Fulton County, the issue won’t be decided until after the 2014 legislative session wraps up. And who has the final say on amending the policy is a bit of a political hot potato. Kuck, the students’ attorney, says it's the Board of Regents. But the Regents have said they believe it’s under the purview of the state legislature.

Price, the Emory professor, believes the students won’t have to wait too much longer. She believes immigration reform will pass in Congress within a few months, and that will give the students the path to legal citizenship.

“I think it’s just temporary. I think Congress is going to act soon and is going to solve the problem” for the students, she said.