Equity & Diversity

Immigration-Status Queries Still a Problem

By Mary Ann Zehr — April 24, 2007 5 min read

Concerned that school districts continue to violate the rights of some immigrant children, the Illinois state board of education is toughening a regulation that bars school officials from inquiring about a student’s immigration status or requiring parents to provide a Social Security number or papers that a person who is living illegally in the country doesn’t have.

The revised rule, expected to go into effect by early next month, was approved March 22 and is among efforts to make sure districts comply with the 1982 U.S. Supreme Court ruling in Plyler v. Doe, which said that undocumented children have the right to a free K-12 education in this country.

Like many other states, Illinois sends out information every year spelling out that school officials must respect that right during the student-enrollment process.

But Darren Reisberg, the general counsel for the Illinois board, said members felt the need to add explicit instructions in the state’s administrative code.

“We still have a number of situations before or at the beginning of each school year, or during the school year, where we get calls from families or advocates saying families were turned away at the schoolhouse door because they didn’t have a driver’s license,” he said, “or they were asked about their immigration status, and out of fear decided to leave, and their child wasn’t enrolled.”

Restrictions on What Can Be Asked

Several states have regulations or policies barring school officials from inquiring, even indirectly, about a student’s immigration status.

ILLINOIS

State regulation, soon to go into effect, saying in part that:

“… no school system may inquire about the immigration status of a student …”
“… the documents required by a school system as proof of residency for a student, when taken together, shall not result in a requirement for proof of legal presence such as a Social Security number.”

NEW JERSEY

State regulation, saying in part that:

“Any student over 5 and under 20 years of age … who is domiciled in the district or otherwise eligible to attend school … shall be enrolled without regard to, or inquiry concerning, immigration status.”
“A district board of education shall not require or request, as a condition of enrollment in school, any information or document protected from disclosure by law, or pertaining to criteria which are not legitimate bases for determining eligibility to attend school. These include … Social Security numbers.”

PENNSYLVANIA

State regulation, saying in part that:

“A child’s right to be admitted to school may not be conditioned on the child’s immigration status. A school may not inquire regarding the immigration status of a student as part of the admission process.”

VIRGINIA

Advisory memo sent to all school districts Nov. 2, 2001, saying in part that:

“School divisions are not permitted to inquire into a prospective student’s citizenship or visa status in order to enroll that student in school.”

Source: Education Week

Jesse H. Ruiz, the chairman of the nine-member state board, added that a showdown between the board and the Elmwood Park, Ill., district last school year also convinced board members that they should revise the regulation for enrollment.

The state board threatened to withdraw state funding from the 2,800-student district because it refused to enroll two students who had entered the United States on tourist visas. Elmwood Park district officials eventually backed down. (“District Will Stop Querying Students on Immigration,” March 8, 2006.)

Mr. Ruiz contended that the school district officials “should not have been asking about visa status,” and he said that state board members felt they needed to “make it crystal clear” what documents school officials can require for parents to show proof of residency.

Illinois follows the lead of at least two other states—New Jersey and Pennsylvania—that have education regulations prohibiting school officials from asking about students’ immigration status. Arkansas and Virginia have made that same point in letters to school officials, though such instructions aren’t part of the states’ administrative codes.

State officials around the country say it’s a constant job to educate school administrators on the rights of undocumented students.

“If a district calls and says, ‘What do we do?,’ we say the issue of citizenship is not asked. The issue of residency is,” said Andre Guerrero, the director of programs for language-minority students in Arkansas. He added that when Arkansas had a practice of using students’ Social Security numbers as identification numbers, he repeatedly had to inform school districts that they couldn’t require one from a student. Arkansas schools have moved to another system of student identification, he said.

Resolving Confusion

Roger L. Rice, the executive director of the Boston-based Multicultural Education, Training, and Advocacy Inc., an immigrant-advocacy group known as META, said it’s good that Illinois is clarifying its regulation for enrollment. His organization gets a call about once a month from someone inquiring about the rights of undocumented-immigrant students to attend U.S. schools, he said.

“In rural or suburban districts, where there hasn’t been an immigrant population, we do see confusion—more on a school-by-school basis than because of district policy,” Mr. Rice said.

William L. Taylor, the chairman of the Citizens’ Commission on Civil Rights, a Washington-based watchdog group, and a longtime civil rights lawyer, said that it should go without saying that, because of the ruling in Plyler v. Doe, school officials are not allowed to ask about immigration status. He questions whether states need additional clarification in their laws and regulations.

“My general view is if it ain’t broke, don’t fix it,” he said.

California is an example of a state that doesn’t spell out in its laws or regulations that school officials shouldn’t ask about a student’s immigration status, according to Michael E. Hersher, the deputy general counsel for the California Department of Education. But state officials have advised districts that it’s not their job to enforce federal immigration laws, and that “to the extent that they attempt to single out individual students for some kind of greater scrutiny of their citizenship in an effort to determine their residency, they run the risk of discriminating according to national origin,” he said.

Mr. Hersher noted that California voters in 1994 approved Proposition 187, challenging the right of undocumented children to receive a free public education. A federal judge overturned that measure before it went into effect, however. (“Judge Rejects Prop 187 Bans on Calif. Services,” Nov. 29, 1995.)

Debate Goes On

And while school administrators may be barred from asking about a child’s immigration status, the national policy debate over the right to a public education for undocumented children continues.

The Washington-based Federation for American Immigration Reform, or FAIR, expressed support for Proposition 187, and is hoping that a legal challenge will come along that could result in a reversal of the Plyler v. Doe ruling, according to Jack Martin, the special-projects director for the organization, which works to curb illegal immigration.

States shouldn’t have to pay for the schooling of undocumented children as a result of the federal government’s lack of control of illegal immigration, he argued. In addition, he said, the quality of schooling for all students suffers “when students who have an inadequate preparation because they’ve dropped out of school in their home country are mixed with regular students.”

Mr. Rice, however, said it makes sense to educate undocumented children. They already live in this country, and many of their parents already pay taxes, he said.

“Do we want uneducated kids not in school during school time,” he said, “or a society where everyone is educated to their maximum potential?”

A version of this article appeared in the April 25, 2007 edition of Education Week as Immigration-Status Queries Still a Problem

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