Illegal immigration: Feds tell schools what they can and can't do

The update is necessary, civil rights groups say, because the initial guidance hasn’t prevented some schools from discouraging students whose families lack legal status. Groups concerned about illegal immigration see it differently.

The federal government issued updated guidelines Thursday to remind schools of their obligation to enroll students regardless of their immigration status.

The update – with specific examples of the kinds of documentation schools can or can’t require – is necessary, civil rights groups say, because initial guidance in 2011 hasn’t prevented some schools from discouraging students whose families lack legal status.

“It is our hope that this update will address some of the misperceptions out there.... The message here is clear: let all children who live in your district enroll in your public schools,” Secretary of Education Arne Duncan said in a statement releasing the guidance in partnership with Attorney General Eric Holder. 

The letter to schools acknowledges that schools have a right to require proof of local residency and check if a student meets age requirements, but they must “ensure that any required documents would not unlawfully bar or discourage a student who is undocumented or whose parents are undocumented from enrolling in or attending school.” They may not ask about immigration status to establish residency within the district, a related fact sheet states.

Districts may include driver’s licenses or state-issued identification cards as possible proofs of residency, but they may not require these if it could have a chilling effect on undocumented families, a Q-and-A attached to the letter says.

While a school can ask for birth certificates and Social Security numbers, it cannot bar students who don’t supply such documents, and it should inform parents that supplying them is voluntary. Also, it cannot use birth certificates to inquire into the family’s immigration status, as that would “likely have a discouraging effect on the enrollment of a student.”

Schools also need to offer this information to parents in languages they understand, the guidance notes. And state education agencies have an obligation to monitor districts’ compliance with anti-discrimination laws.

Groups concerned about enforcement of immigration law say district administrators’ hands are being tied too much by the Obama administration’s guidance. “School districts have a legitimate need to know ... how many students they are educating who are in the country illegally; it’s important for budgeting,” says Ira Mehlman, spokesman for the Federation for American Immigration Reform in Washington. “As long as nobody is being denied entry, they should be able to collect this pertinent information.”

That was the justification offered by Alabama officials when the state passed a law in 2011 requiring schools to check the immigration status of students as they enrolled. The school portion of the law was rolled back after a lawsuit by civil rights groups including the Southern Poverty Law Center (SPLC) in Montgomery, Ala., which argued that it effectively blocked access to education by scaring off some undocumented families.

In addition to various laws against discrimination based on ethnic origin, the Departments of Education and Justice based their guidance on the 1982 US Supreme Court decision in Plyler v. Doe, which ruled that all children residing in a state must have access to public education, because denying “innocent children” such access “imposes a lifetime hardship.”

An SPLC survey last year found that school enrollment forms in 81 school districts in Alabama were not in compliance with federal law and were “requesting information that’s not required and that has what we believe to be a chilling effect on enrollment,” says Jerri Katzerman, a deputy legal director at SPLC. Most notably, they did not explain that supplying a Social Security number was voluntary and did not affect the opportunity to enroll. The group has also supported changes in North Carolina and Louisiana on behalf of educational access for undocumented students, she says.

Today’s guidance is an important reminder to schools, and a warning to states that “you can’t turn your back and assume districts will do what’s required,” Ms. Katzerman says. “It’s the right message at the right time.”