LEGAL ISSUES FOR SCHOOL DISTRICTS RELATED TO THE EDUCATION OF UNDOCUMENTED CHILDREN – HIGHLIGHTS
A joint publication of the National School Boards Association (NSBA) and the National Education Association (NEA)
Feb 11, 2010
PEATC is committed to keeping the community, schools, parents and students informed about important information regarding education. The National Schools Boards Association (NSBA) and The National Education Association (NEA), have issued a joint publication about 13 legal questions commonly asked by school board members and school administrators related to education for undocumented children.
Here are highlights from this publication (a Spanish language version of this article is also available in a separate posting):
RIGHTS OF UNDOCUMENTED STUDENTS TO RECEIVE AN EDUCATION
1. Are Public elementary and secondary schools required to educate undocumented children? Yes, The U.S Supreme Court held that undocumented children have a constitutional right to receive a free public k-12 education.
2. Does an undocumented child’s right to an education include secondary benefits of public education like participating in extracurricular activities? Probably. While the Supreme Court in Plyler (Plyler is the sole U.S. Supreme Court case dealing with the rights of undocumented children in public schools) did not discuss whether undocumented children have a right to participate in extracurricular activities. Though no reported lower court cases address this issue, courts would likely extend the Plyler rule to cover extracurricular activities.
3. Are undocumented students permitted or required to received services that other student receive from school districts and other local government agencies? Probably required. If faced with the question, a court would likely conclude services like free and reduced meals and education assistance to manage a learning disability are protected by Plyler because they are central to a student’s educational experience. Likewise, many of these services are available to undocumented students by statute, regulations or guidance.
ADMITTING UNDOCUMENTED AND NON-IMMIGRANT STUDENTS TO SCHOOL
4. Can school districts ask questions about immigration status to determine if a student is a resident of the district? Probably not. Asking students questions about their immigration status when determining residency may discourage undocumented students from enrolling in school, arguable in violation of Plyler.
5. Does a school district have to educate an undocumented student who is not living with a parent or legal guardian? Probably. School districts should be cautious about denying enrollment to undocumented children who are unable to establish that their parents/legal guardians are residents of the school district if they otherwise meet residency requirements. Denying enrollment may violate Plyler and may be prohibited by the McKinney-Vento Act if the undocumented students are homeless.
6. Most, may, or should a school district report an undocumented student to immigration and Customs Enforcement? No federal law requires school districts to report undocumented students to immigration authorities however schools districts are prohibited from reporting them by Plyler.
7. Can school districts ask to see visa documents if districts do not then deny enrollment to undocumented students? Even when asking to see visa documents is permissible under state law, school districts should be cautious doing so could “chill’ undocumented student enrollment, arguably in violation of Plyler.
8. Can schools districts refuse to educate a child who volunteers that he or she has a B-2 visa? Even when denying enrollment to B-2 visa bearers is permissible under state law, school districts should be cautious doing so could “chill’ undocumented student enrollment, arguably in violation of Plyler.
9. Most, may, or should a school district report to immigration and Customs Enforcement a student who attempts to attend school in violation of his or her visa? School districts are not required to report to ICE B-2 visa bearers who attempt to attend public school. To avoid a “chilling” claim under Plyler, school districts should refrain from reporting them.
UNDOCUMENTED STUDENTS AND IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) INVESTIGATIONS
10. Does a school district have to provide Immigration and Customs Enforcement (ICE) information contained in student records about undocumented students? The Family Educational Rights and Privacy Act (FERPA) generally prohibits school districts from providing third parties such as ICE information about students contained in student records.
11. Does a school district have to allow Immigration and Customs Enforcement (ICE) agents to interview students at school? In some circumstances, a school district may have to allow ICE agents to interview students at school, but ICE’s policy is generally avoid enforcement actions on school grounds.
12. What behaviors does Immigration and Customs Enforcement consider “harboring” in relation to school employees assisting undocumented students and parents? During an ICE enforcement action, school employees should not assist parents in remaining in the U.S. illegally, but may offer care-giving assistance to undocumented students whose parents have been detained by ICE.
13. What are school districts’ responsibilities to assist students whose parents have been detained during an Immigration and Customs Enforcement (ICE) action? To avoid claims of negligent supervision, school districts must take adequate steps to ensure the safety of children whose parents are detained.
A complete copy of LEGAL ISSUES FOR SCHOOL DISTRICTS RELATED TO THE EDUCATION OF UNDOCUMENTED CHILDREN is attached to this posting.
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