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Posted on May 10 2011

Immigrant Children Have the Right to Go to US Public Schools

By  Editor
Updated April 03 2023

Last Friday, the US Departments of Justice and Education issued a memorandum informing the nation's school districts that it is against the law for school officials to request documents or other information that might reveal the immigration status of students enrolling in public schools.

In recent months, many school districts, including some in New York, have been requesting that parents provide their children's immigration papers as a prerequisite for enrollment. Some states, including Arizona, Oklahoma and Tennessee, are considering legislation that would make it a requirement for prospective students to reveal their immigration or citizenship status.

The New York Times quotes from the memo from the Departments of Justice and Education:

"We have become aware of student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents' or guardians' actual or perceived citizenship or immigration status. These practices contravene federal law."

..."The undocumented or non citizen status of a student (or his or her parent or guardian) is irrelevant to that student's entitlement to an elementary and secondary public school education."

The officials cite Plyler vs. Doe, a 1982 Supreme Court decision which recognizes "the right of all children, regardless of immigration status, to attend public school as long as they [have] met the age and residency requirements set by state law."

Last year, the New York Civil Liberties Union found that 139 school districts in New York state had required children's immigration papers as a prerequisite for enrollment, or sought "information that only lawful immigrants could provide" from parents. No children had been turned away from enrolling in a school district if they did not provide the paperwork, but the NYCLU points out that parents could be deterred from enrolling their children out of fears that their legal status might be reported to federal authorities.

State officials in Maryland, New Jersey, Illinois and Nebraska have recently taken steps to stop the practice of school districts requesting information about immigration status. However, other states are considering legislation of an opposite sort, says the New York Times:

In Arizona, state lawmakers have considered a bill that would require the state’s Education Department to determine the number of public school students who are unable to prove lawful presence in the United States, officials said. Last year, a legislative committee in Oklahoma favored a bill to require public schools to determine, at the time of enrollment, whether a child was born outside the United States.

In Tennessee, state Rep. Terri Lynn Weaver, a Republican, has proposed a bill that would require parents to provide a student's social security number, passport or visa when enrolling their child. According to EdWeek, "Weaver's aim in introducing the bill, apparently, is to keep track of the number of undocumented students in the state and to analyze their financial impact on taxpayers." In an Op-ed in the Tennessean, Colleen Cummings, a graduate student in public policy at Vanderbilt University, argues that such a bill would hinder equal opportunity under the law:

While the intent of the bill might seem reasonable, demanding documentation is unconstitutional, and will have negative unintended consequences. First, immigrant parents without proper documentation might be less likely to enroll their children in school for fear of how this information might be used. Such a situation could lead to some parents keeping their children at home. This might lead to an uneducated population, resulting in increased incarceration rates and higher proportions of welfare use.

Second, the purpose of the school is not to implement immigration law;nor are schools equipped to do so. The proper way to fix concerns about immigration is through federal laws that directly address this national issue. Requiring a Social Security number for school enrollment is not only unconstitutional under Plyler vs. Doe, but is also a barrier to equal education.

Cummings' arguments provide further support for the memo issued by the Departments of Justice and Education. "The state should not risk wasting public resources on symbolic legislation that intrudes on an area currently reserved for the federal government," she writes in regard to Tennessee -- and her words apply also to New York, Oklahoma, Arizona and all the states of the union.

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