English-Language Learners

Feds to Schools: Immigrant Students Entitled to Free Public Education, Regardless of Status

By Ileana Najarro — June 22, 2023 3 min read
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The U.S. Departments of Justice and Education are putting public schools on notice that immigrant children and youth are entitled to a free public education, regardless of their immigration status.

The two agencies published fact sheets earlier this month reminding families and educators of the rights immigrant students—specifically migratory children and unaccompanied minors—have when it comes to receiving a public education.

It’s a reminder advocates and researchers say is needed as more immigrant students are expected to enroll in the coming years, and as they continue to face challenges in accessing quality education.

(The pandemic era policy known as Title 42—which made it possible to expel migrants quickly—expired in May, and it’s not yet clear if the policy change at the border will bring an influx of immigrant students to schools.)

“Even though the law has been very clear for decades … we continue to hear about students being turned away from schools, people not understanding how to find out what students’ previous histories are so that they can be appropriately placed in classes,” said Julie Sugarman, senior policy analyst for PreK-12 education at the think tank Migration Policy Institute. “We just continue to get these anecdotes of things that happen to immigrant students.”

Schools’ responsibilities

The fact sheets aim “to help public schools understand their responsibilities to serve unaccompanied children under federal civil rights laws,” according to the agencies. They delineate the specific obligations school districts must meet as seen below.

“It gets school districts’ attention when the federal government says, ‘If you don’t do this, the Department of Justice can come knocking,’” Sugarman said.

Why reminders of the law are needed

The fact sheets provide examples of common scenarios immigrant students often face that discriminate against them and limit their access to a quality education.

Enrollment barriers include:

  • Migratory children living in temporary labor housing that are within a school district’s geographical boundaries, face school proof-of-residency policies that prevent their enrollment.
  • Schools ask new students to provide social security numbers or U.S. birth certificates for enrollment.
  • They are deterred or discouraged from applying for gifted and talented programs because they are English learners, or because they have interrupted formal schooling or incomplete academic records.

Once students are enrolled in schools, other obstacles may include:

  • Failure to conduct English-language proficiency assessments for unaccompanied minors who enroll mid- or late-year since such tests are done at the start of the school year.
  • Denial of language assistance services and special education services which schools are legally obligated to provide, or telling students they need to prioritize one set of instructional services over the other.
  • Incorrect assumptions that migratory families who speak Indigenous languages also speak Spanish because of their country of origin.
  • Reliance on multilingual students to interpret for English learners who are unaccompanied minors in class, rather than providing required instructional support and language assistance from qualified staff.

These violations of students’ rights can sometimes be easy for schools to miss or overlook, said Astou Thiane, director of policy and advocacy at ImmSchools, a national nonprofit based in Texas that works with K-12 schools to support undocumented students and their families.

While Thiane has found that educators have come a long way in remedying these types of barriers, they keep popping up. That’s why formal communications from federal agencies to schools—that are also visible to the public—are necessary and helpful, Thiane said.

That work is especially needed with front office staff who often make the first contacts with immigrant families and are involved in the enrollment process, Sugarman added.

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