The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[A] Georgia Board of Regents … Policy requires Georgia's three most selective colleges and universities to verify the "lawful presence" of all the students they admit. Under the Policy, applicants who received deferred action pursuant to the Deferred Action for Childhood Arrivals memorandum ("DACA Memo") cannot attend Georgia's selective schools.
Appellants are students who are otherwise qualified to attend these schools, and they filed suit to challenge the Policy. At the heart of their suit is whether they are "lawfully present" in the United States. They say they are lawfully present based on the DACA Memo. Thus, appellants claim the Regents' Policy is preempted by federal law, and they argue the Policy violates their equal protection rights.
The court concluded that the policy was consistent with federal law, and didn't violate the Equal Protection Clause. That strikes me as quite right, for the reasons the court gave.
I should say that illegally coming to a country strikes me as no serious sin; most people who come here illegally just want a better life, and generally work hard to try to get it. Certainly people who were brought here as children weren't at fault for coming here; and while the law may in essence require them to leave, I can certainly see why it would be a hardship for them to leave what for most is the only country they've known. Breaking the law is illegal (whether it involves criminal entry or merely violating civil immigration restrictions), but it doesn't make it particularly immoral. If circumstances were different, I'd feel little moral compunction about illegally immigrating to a country to improve my and my family's lot in life—not zero moral compunction, but little.
But illegal presence remains illegal presence, even if the President has chosen to exercise his discretion not to enforce the law. The State of Georgia has no obligation, I think, whether under the Constitution or federal law, to spend money to educate people who are illegally here. It may choose to do so, if it thinks that this is the moral or humanitarian or economically wise thing to do; but it has no legal duty to do so, as the Eleventh Circuit holds.
For those who track such things, I should note that the panel consisted of a Ford Court of Appeals appointee, an Obama Court of Appeals appointee, and a Clinton District Court appointee.