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School Districts, Undocumented Students, and Equal Access to Public K-12 Education

Posted on September 11th, 2017 | Author: Raymond G. Lahoud

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With the end of the Deferred Action for Childhood Arrivals program on the horizon, many K-12 schools, school districts, taxpayers, and others are asking: Do undocumented students have the right to attend public schools?  And, do the public school districts have to pay?  

The answer to both questions: Yes.  Over 34 years ago, the United States Supreme Court in Plyer v. Doe, 457 US 202 (1982), held that undocumented children living in the United States cannot be excluded from public elementary and secondary schools based upon their immigration status.  As a result, school districts are not permitted to require students to disclose any information related to their immigration status as a prerequisite to enrollment, cannot ask students, parents or guardians questions that may expose the immigration status of the student, parent, or guardian, cannot request documentation to verify a student’s immigration status, and cannot engage in any practice—regardless of intent—that would “chill” or prevent the free exercise of an undocumented student’s right of an undocumented student to access public schools.

Attending school is one thing, but a student’s questions or a student’s fears over his or her own deportation or the deportation of a parent while at school are entirely separate matters.  Over the last several months, primary and secondary school teachers have reported a substantial increase in the number of students that have raised the immigration concern and shown emotional distress related to an underlying immigration situation.  Students are asking questions like:

1)        I do not have immigration documents.  Am I going to be deported?

2)        I crossed the border with my family member when I was 3 years old and I have no idea how, where, or why.  Am I going to be deported?

3)        What happens now that I lost DACA status?

4)        I gave my biographic information to immigration when I applied for DACA and now DACA is gone.  Can immigration use this information to arrest me?

5)        Can immigration come into our school and arrest us?

6)        My mom and dad are undocumented, are they going to be deported?

7)        What does “undocumented” mean?

8)        What is an “illegal alien?”

9)        How is a human being illegal?

10)      Can an immigration officer just stop me or my family member?

11)        Do I have rights, even though I am undocumented?

12)        I was born in the United States and my parents are undocumented what happens to me if they are deported?  Will I be left in the United States?

Primary and secondary schools must be cautious in answering these and other questions. And, in response to the increasing number of questions, school districts have been conducting informational seminars to address immigration issues.  Districts that are conducting these programs, or considering conducting these programs, must be very careful that their efforts do not expose undocumented parents.  While the school’s intention is by no means harmful, certain answers, events, questions, and seminars may fall within conduct that would expose the undocumented status of the student or parent, or could cause an indirect “chill” to the student’s free exercise of his or her right to a free public K-12 education.

Like most politically and legally sensitive matters, it is best that organizations are affected by today’s complex immigration laws are proactive.  It is in the best interests of all K-12 private and public schools to adopt standard operating procedures that school administrators must follow when certain immigration related concerns arise.  The procedures should address a wide variety of issues, including how educators must handle student immigration questions, concerns, and the emotional impact of certain immigration actions that are personal to a student, such as the deportation of a mother or father.  Additionally, standard operating procedures must address what administrators should do when faced with a random immigration inspection and audit of international students, or, should immigration officers suddenly appear at the school house door demanding information.

Any standard operating procedures must be carefully crafted to ensure that they are compliant with federal immigration law, as well as the various federal and state education jurisprudence, laws, and regulations relating to one’s immigration status as it applies to K-12 education.

With the current immigration political climate, it is important that public K-12 school districts and schools are reminded that actions or policies that directly or indirectly lead to the denial of equal access to K-12 education for undocumented students are unlawful.  For example, requiring proof of citizenship or immigration status as a precondition for enrollment, asking about the immigration status of a student or parent, failing to provide undocumented students the services encompassed in a K-12 public education curriculum, or, even innocently scheduling an immigration information seminar for undocumented parents of students or for undocumented students, may lend to the most serious of consequences and years of litigation.

If you have questions about this post, procedures and best practices for primary and secondary schools, or other immigration-related matters, please contact me at rglahoud@nmmlaw.com.