Thursday March 28th, 2024 8:40AM

SCOGA to hear challenge by college students who are not U.S. citizens; court to meet in Ellijay

By Ken Stanford Contributing Editor

ATLANTA - A number of college students who are not U.S. citizens are appealing a Georgia Court of Appeals decision that upheld the dismissal of their lawsuit by a Fulton County judge. The students are seeking a decision that they are entitled to in-state tuition at Georgia’s colleges and universities.

The state's highest court will hear their appeal Oct. 16 in Ellijay.

In 2010, the state Board of Regents amended its policy manual to require that all students who wish to attend any institution in the University System of Georgia be “lawfully present” in the United States. The policy manual also required that for any non-citizen student to receive in-state tuition, the student had to be “legally in this state.” On June 15, 2012, the U.S. Department of Homeland Security established the “Deferred Action for Childhood Arrivals” program, which allows certain young people who are in the country illegally to remain here without fear of removal for at least two years.

Miguel Angel Martinez Olvera and other non-citizen college students who are beneficiaries of the federal deferral program, brought a lawsuit against the Board of Regents seeking a “declaratory judgment” from the trial court that they are “lawfully present” in Georgia and are therefore entitled to in-state tuition. The Board of Regents claimed that the students’ lawsuit was barred by “sovereign immunity,” and that the students in the deferred action program are not in “lawful status” in this country. The Board filed a motion asking the court to dismiss the case, which the trial court did, finding that the Board of Regents was immune from the lawsuit based on sovereign immunity, which is the legal doctrine that protects the government from being sued. The students appealed, but the Court of Appeals upheld the lower court’s decision.

The students’ attorney argues the Court of Appeals and trial court are wrong, and the Board of Regents is not shielded by sovereign immunity in a simple declaratory judgment action.

The Attorney General’s office, representing the state Board of Regents, argues that the state Supreme Court’s decision in Sustainable Coast, which found that sovereign immunity bars injunctive action against the State unless the General Assembly has specifically waived it, “applies with equal force to declaratory judgment actions brought against the State and its officials.”

By meeting in Ellijay, the state Supreme Court is continuing a tradition of traveling outside Atlanta each year to hear cases in order to make its business and the judicial process more accessible to the public.

The Ellijay session will be held at 10:00 at the Gilmer Court Courthouse and will be open to the public. 

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