When Can A DACA Student Pay In-State Tuition In Georgia? Now!

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On December 30, 2016, Judge Gail S. Tusan, Chief Judge of the Fulton County Superior Court ordrered the Georgia Board of Regents:

to perform their duty in applying the federal definition of lawful presence as it relates to students who are DACA Recipients and to grant them in-state tuition status. This is the Court’s final order in this matter . . . .

There are thousands of students in Georgia affected by this Order and they all want to know what this order means.

Generally speaking, under Georgia law, a trial court judgment is automatically stayed for 10 days after its entry and, during this 10 day period, enforcement of the judgment is prohibited. What this might normally mean,  is that students cannot seek in-state tuition under this order until January 10, 2017, pursuant to Ga Code 9-11-62(a).

However, this section has typically been read to apply only to monetary judgments, not to orders like this case, which is an order of action to a state agency in a mandamus case.  Arguably, the order is effective immediately, and the Board of Regents should begin to allow qualified students to pay in-state tuition today. They may not do so, now, but we are only few days away from January 10, 2017.

If the Board of Regents appeals (and they have announced that they will appeal but have not done so yet), they will have to appeal directly to the Supreme Court of Georgia, which is where all appeals of mandamus cases are heard pursuant to Ga Code 9-6-28.

More importantly, there is no automatic stay in place simply by filing an appeal to the Supreme Court.  The Georgia Supreme Court, almost 100 years ago, made clear the rules on mandamus appeals in the case of  Smith v. Lott, 156 Ga. 590 (1923), which concerned a writ of mandamus requiring county commissioners to collect a property tax. The commissioners ignored the writ because they had appealed and did not feel that they also needed to secure a stay; instead, they believed that they did not need to abide by the judgment until this Court had disposed of their appeal. Id. at 592. In rejecting that position, the Georgia Supreme Court noted that “the pendency of a writ of error does not impair or affect the judgment of the superior court. It is binding until reversed,
and, when affirmed, is binding ab initio.” Id.

There is a long line of cases after this making it clear that there is no automatic stay in place, and it is our position that all qualified DACA students should be allowed to pay in-state tuition today. Subsequent Georgia Supreme Court decisions make clear that one appealing a writ of mandamus must move for and secure a stay of the judgment pending appeal in order to avoid complying with the writ while it is being  reviewed. Cf. Bd. of Comm’rs of Richmond Cnty. v. Cooper, 259 Ga. 785 (1990) (analogizing to law concerning injunctions and noting that appellant’s failure to move for and secure a stay pending appeal meant that it had to issue license as mandamus required and that that issuance rendered appeal moot); City of Atlanta v. League of Women Voters of Atlanta-Fulton Cnty., Inc., 244 Ga. 796, 797-98 (1979) (noting that after issuing a writ of mandamus, superior court granted the city a stay of the judgment pending appeal).

The Georgia Supreme Court’s jurisprudence for the past century has been clear: In a mandamus case, appealing alone does not and cannot trigger the automatic supersedeas provision in O.C.G.A. § 5-6-46. Instead, litigants appealing a mandamus case must either comply or move for and receive a stay of the judgment pending appeal. .

The bottom line is this:  If you are otherwise qualified for in-state tuition, and you are a DACA student ,and you have been denied the right to pay in-state tuition at any university or college under the Board of Regents control, please note whom  you have spoken with that denied you this right, the time and date of that call or meeting, and email this information along with your contact information to ckuck@immigration.net.

Thank you all the heroic DACA recipients who have been part of this fight since the beginning, and to all those who are part of the fight now. It is for you that act.  No one is harmed by seeking and receiving an education.

About the Author

Charles Kuck

Managing Partner

Comments 0

  1. I recently contacted my school, Middle Georgia State University, and was told that they were instructed to wait and might not offer in state tuition until spring or as late as fall this year. Do I need to pursue this further?

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