Educating Immigrant Students

Legal Brief

Immigration policy is once again at the center of public debate. Changes by the new federal administration may have significant implications for students and parents. 

Since 1982, however, in Plyler v. Doe, the Supreme Court has held that a public school may not deny access to a basic public education to any child residing in the school district regardless of immigration status. Denying access to education would punish innocent children and impose a lifetime of hardship on a discrete class that was not responsible for their immigration status. The Plyler decision applies to immigrants, meaning students who are present in this country with the intent to remain regardless of their documentation status.

Required Proof

Immigration status should not hinder students’ enrollment, and students or parents should not be subjected to additional inquiries based on perceived national origin. 

• Translated enrollment forms should be available to assist parents with limited English proficiency.
• Proof of residency may be required for all enrolling students. Most schools accept an array of options, such as a lease or utility bill. Schools may not limit accepted documentation to U.S.-issued identification (such as drivers’ licenses) for students or parents.
• Proof of age may be required for all enrolling students. Again, the accepted documentation should not discriminate based on national origin or immigration status. Foreign birth certificates, baptismal records and other documentation showing a foreign place of birth must be accepted on the same terms as U.S. documents.
• Immunization records may be required pursuant to state law and local procedures.
• Data collection on race and national origin is permissible but providing the information should not be mandatory and the information should not be used for a discriminatory purpose.

One thing not required under federal law for students and parents to produce is a Social Security number. Parents must be informed that providing a SSN for themselves or their child is voluntary and will not affect enrollment.

Upon enrollment, students should be granted access to all relevant educational programs and services, including English language learner programs but also special education, free and reduced-price lunch and other services, as applicable. The U.S. Department of Education Office for Civil Rights’ “Dear Colleague Letter” dated May 8, 2014, is a useful source.

Protecting Students

In addition, schools may want to consider the following if immigration enforcement is increased:

• Clear protocols for ensuring students are released to safe homes, even if a parent or parents become the subject of an immigration enforcement action. Be certain that enrollment documents ask all parents to list multiple emergency contacts, including friends and family beyond the child’s immediate household.
• Recognition that schools have no obligation under federal law to report students’ immigration status to enforcement officials. Absent an exception to FERPA, student records other than directory information may not be disclosed without parental consent. Generally, with the exception of information about certain student visas issued to non-immigrant foreign students, student records remain confidential and should not be disclosed to immigration officials. If a subpoena is issued, an exception to FERPA will apply.
• Emphasizing frequently to all stakeholders that school remains a safe place for students, in light of the potential for pressure from state or national policymakers, as well as confusion among staff and fearfulness among parents. School officials may need to communicate clearly and frequently to all stakeholders that public schools serve as a safe place for learning, not a site for immigration enforcement.

Joy Baskin is director of legal services with the Texas Association of School Boards in Austin, Texas. E-mail: joy.baskin@tasb.org