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Why DACA Students Must Be Able To Pay In-State Tuition in Georgia

           Earlier today, June 15, 2017,  I presented arguments on behalf of DACA recipients in Georgia the Georgia Court of Appeals, seeking to sustain the decision of the Fulton County Superior Court Chief Judge (Judge Tusan), in ordering the Georgia Board of Regents to consider all DACA recipients eligible for in-state tuition, if they otherwise meet the tuition requirements.  Here is my presentation:

May it Please the Court:

I am Charles Kuck. I represent the appellees Rigo Rivera, Josafat Santillan, and the other young women and men behind me, all of whom hold valid DACA approvals.

On June 15, 1982 the Supreme Court of the United States issued its landmark decision in Plyer v. Doe in which they guaranteed equal access to public education for all children, regardless of immigration status. On June 15, 2012, President Obama created a program of deferral of deportation for “Dreamers," for young women and men who came to the U.S. before June 15, 2007, who are in or have graduated from high school (under the protection of Plyer v. Doe), and who are of good moral character. This program is called “DACA’ and it has been extraordinarily successful in changing the lives of these young women and men, giving them hope for the future and access to our society as contributing members. They can work, drive legally, pay taxes, volunteer, and thrive. But there is one thing they cannot do. Yet, today, June 15, 2017, they cannot go to the best schools in Georgia, even if they merit admission, and they cannot pay in-state tuition in the state in which they are taxpaying residents. That seems, to me at least, a violation of the principles outlined in Plyer v. Doe, and more importantly for today’s argument, a direct violation of the Regents own policy manual on in-state tuition.

The Department of Homeland Security (DHS) through its sub-agency U.S. Citizenship and Immigration Services (USCIS), issued guidance on DACA on a variety of issues. The guidance relevant here is on what DACA means for the “status” of the young women and men;  DACA is not “legal status”, but it is, according to USCIS, “lawful presence.” Why is that important? Because in 2010 the Regents created a tuition policy, included in its policy manual in Section 4.1.6, in which it says that a non-citizen person who is not “lawfully present” in the United States cannot be granted in-state tuition.

Words have meaning. When a state agency such as the Board of Regents through its members, each of which is an appellant/defendant in this case, creates a policy, the public, including these young women and young men, are entitled to rely on that policy. They are entitled, by law, to expect that those members of the Board of Regents carry out their own policy according to the actual plain meaning of the words they use. We are here today because the Regents have intentionally failed to do so.

The Regents also created a policy in Section 4.3.4 which requires that these students prove their lawful presence in the United States. This, each of these young women and young men can do through the USCIS “SAVE” system by which states and subordinate agencies can verify an immigration problem. This is why each of them has driver’s licenses in Georgia, because they have lawful presence.

               “Lawful presence” should not be confused with “lawful status”, which these youth do not have. But lawful status is not required by the Regents to obtain in-state tuition, as DACA recipients are legally in the state. As late as February 2016, the Regents reconfirmed that “lawful presence” is the standard, yet for an unexplained reason, at least one based in logic or law, the Regents insist that “lawful presence” does not mean what the rest of the world knows it means. The Board of Regents own chief of student affairs and legal counsel, Burns Newsome, even said in an internal board memorandum that “lawful presence” is, of course, a question of federal law.

The Chief Judge of the Fulton County Superior Court, Judge Tusan, made clear in her decision that the Regents have been misinterpreting their tuition policy and ordered on December 30, 2016, that the Board immediately begin admitting qualifying DACA students, and that if they meet the other requirements for in-state tuition,  to be able to pay in-state tuition that semester. That judge also denied the Board’s stay request, which this court ultimately granted. This delay has cost these young women and men another two semesters of school, another delay in fulfilling their dream of a college degree.
The Regents take the position in this case, as well as in the previous iteration of this case (Olvera v. Board of Regents), that these students and future students, these Dreamers, do not have the right to challenge the Regents purposeful failure to follow its own policy. While these young women and young men lost the Olvera v. Board of Regents case on procedural grounds, they were specifically instructed to bring a Mandamus Action individually against each Board member. This they have now done.
The Regents make the argument, for the first time on appeal, that they are protected from suit by the doctrine of “official immunity”. They make the argument that
1)      They cannot be sued in their official capacity because of the doctrine of sovereign immunity (which we know too well); and
2)     They cannot be sued as individuals because they are, as individuals, unable to implement the action ordered in the Mandamus.
This is simply wrong.  The Board of Regents does not act without he thoughts and physical activity of its appointed Regents.  Its is nothing more than deceptive to argue otherwise. 
Also for the first time, the Regents argue that the GA. Const. Art I, Sec. II, Para. IX(d) protects them from suit.  This might be true if in fact the Regents were actually listed as those who were protected from suit. The problem is that the Regents are not "officers or employees of the state." That is not the same as “state public officers” as claimed by counsel.  Further, The Constandine case cited by the Regents in support of their argument was set actually aside by the Supreme Court the following year on appeal and its discussion of immunity vacated. It is irrelevant to today’s case, and even if the court could consider its holding, it spoke only of judicial immunity, not an official immunity. Similarly, the Cameron v. Lang case also argued by the Regents is inapposite. That case dealt with an employee (police officer) being sued for damages, not a mandamus action, and was based on the principle that official or qualified immunity exists to prove the public employee would not be judged in hindsight for the actions they taken, and makes clear that a public officer or employee may be personally liable for ministerial acts they negligently failed to perform or that done with  malice and intentional disregard for their duty.  If this case even applied to the Regents, it is clear they have engaged in at least intentional action acts that have deprived the DACA recipients of their right to an education.  
The purpose of this Extraordinary Writ of Mandamus is to compel performance of an official duty under O.C.G.A. § 9-6-241. The Georgia Supreme Court made clear in its Rothschild II et al. decision that “where the question is one of public right and the object is to procure enforcement of a public duty, the individual plaintiffs can bring a Mandamus”
Each of these young women and young men, and thousands more like them have a legal right to see that the individual Regents carry out their duty to create a policy on tuition and to do so according to its plain meaning. For a mandamus to be issued, as it was here by Judge Tusan, the duty we seek to compel performance of must be one that by law the members of the Board must perform. The Georgia Supreme Court in its 2014 decision in the Bibb County case said explicitly that “A Writ of Mandamus is properly issued if (1) the applicant has a clear legal right to such relief and (2) no other legal remedy is available to effectuate that relief."  Both of these conditions are met here. Further, the Bibb County decision said that the Mandamus relief cannot be one based on discretion, only on a gross abuse of discretion, such as here or in cases of wanton disregard of their duties, which could arguably also be the case here.  
Unlike in the Brand Farms case argued by the Regents, in which those plaintiffs sought a specific type of labeling on the products they produced, that action that was left in the commissioner of agriculture's discretion.  Here, the Regents exercised the duties under O.C.G.A. § 20-3-31 (1) and O.C.G.A. § 20-3-66 (d) and set a clear unambiguous standard for non-citizens to received in-state tuition. They have the legal obligation to carry out the policies they created according to its actual plain meaning.
Further, the Regents are arguing that the mandamus would require them to correct past acts and commit to a series of future acts. This is also simply not true.  This is a one time act, not a series of continued acts. It is a simple one time fix, requiring the Regents to advise the schools they oversee to implement the policy using its plain meaning, and clearly stating that DACA recipients have lawful presence and are entitled to in state tuiion, if they meet the other in-state tuition requirements.  
Yet, the Regents’ position is that they can create any policy they want (which is probably true) and they can implement it any way they want (this should not be true) and no one can hold them accountable, including this Court (this cannot be true). There is no alternative legal remedy. The Board members have made clear their decision, throughout these cases, that DACA recipients do not qualify for in-state tuition. Any internal appeal process is neither mandatory not an adequate substitution for a mandamus.  
Finally, and to be clear, this case is about Hope and Justice. Hope for the future of these young women and men - an educated future with limitless possibility. By denying them the right to an education the Regents are extinguishing hope.  That is immoral.   The Regents compound this gross and intentional negligence by claiming that no one, including this Court, can hold them to account. This cannot be true. This must no be true. Please uphold the Superior Court’s decision. It is correct. It is Hope and it is Justice. Thank you. 

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