Transcript: FAQ on Enrolling Immigrant Students

This is the transcript for an excerpt from our video interview with Attorney Roger Rosenthal of the Migrant Legal Action Program.

School enrollment FAQ: Immigration documents

Another ramification of Plyler is the issue of whether immigration documents are acceptable to be requested at the time of enrollment.  And it’s pretty logical to assume that if an undocumented child has a legal right to attend free public school, then indeed any child who actually resides in that district would have that right. 

So, as a result of Plyler, immigration documents should not even be requested, but they’re completely irrelevant.  Now, one thing that some school districts occasionally get confused is the issue of proving residency and immigration status.  And it’s important for folks to realize that where you come from or why you’re in the United States has no relation to whether you’re a legitimate resident in that district.

If you’re living in a school district under state law with someone who has the right to take care of you, essentially you have the right to attend a free public school, and there shouldn’t be any immigration documents.  I get this kind of question very often.  And recently someone called our office and asked about whether requiring proof of a visa was necessary for enrollment in public schools, and we explained that it is not required.  It shouldn’t be discussed, and only the issue of residency was a matter of concern.

And again, residency has nothing to do with immigration status.  It only pertains to whether the individual student and family is located within the school district.

School enrollment FAQ: Social Security numbers

Not only does Plyler vs. Doe stand for the proposition that even an undocumented student has a right to attend free public school, there are ramifications from that decision.  The first involves Social Security numbers.  Undocumented people are not entitled to Social Security numbers.  And if you were to deny enrollment based on the lack of Social Security numbers, you would effectively be denying children who had a legal right under Plyler to attend school that exact opportunity.

But there’s also a federal statute called the Privacy Act of 1974, which says that you can request, but not require, Social Security numbers for school admission, and if you do request it, the federal law requires that you explain immediately that it is not required.  So, the bottom line is that as a result of both Plyler vs. Doe and the Privacy Act of 1974, school systems should not be requiring Social Security numbers for school admission, and if they do ask for those numbers, they must immediately explain that it’s not required.

School enrollment FAQ: Proof of residency

Proof of residency is a matter of state law, not federal law.  Every state deals with that a little bit differently.  But it’s important that school districts not establish rules to prove residency that would just objectively exclude people from being able to prove that they’re a resident of the district.

A lot of low-income people, let alone low-income immigrants, do not have leases because they’re living with other family members or they’re living in a big house or they’re living in a barn. They are not in a position to show a lease or a mortgage with their name on it.  They also as a result don’t have utility bills.  What is generally allowed in state law, if there are no other documents, is an affidavit which is signed by the parent or the enrolling adult saying “Yes, I live at a particular address.”

And that is an excellent way of proving that residency because it is sworn under penalty of perjury.  And so it’s actually a very accountable document.  One other thing that a school can do if it wishes is to actually go to the address that the parent has indicated is where they’re living and double-check that the family is there.  That’s a very simple way of demonstrating that residency. It’s not always practical in very large districts, but it certainly can be done in small districts and certainly can be done in some rural districts.

School enrollment FAQ: Birth certificates

The issues of Social Security number and immigration documents at enrollment are matters of federal law, but there are additional issues which come up at enrollment that are matters of state law, and those include birth certificates, immunizations, and the age of the child.  Let me talk about each of those in turn.

With respect to birth certificates, interestingly enough and surprising to many educators, there is not one state in the United States that actually requires a birth certificate as the only proof of name or age.  Some states require proof of name, some states require proof of age, and there are some states that require proof of both.  But in no instance in that proof is birth certificate the only document that can be provided.

In most states, there are alternatives which are listed either as a matter of practice or state law.  And that could include baptismal certificates, family Bibles that dutifully record births and deaths, and a variety of other documents from hospitals.  You can also have an affidavit being filled out by the enrolling adult to attest to the child’s age.

We need to be sure that schools don’t put form over substance.  It can be important to understand the age of the child for enrollment, and there’s no question about that.  But one has to be reasonable about the implementation of this procedure, and in no case should it be communicated to a parent that only a birth certificate provides that proof of name or age.

School enrollment FAQ: Immunizations

Immunization documents are a little bit different because the question of being immunized is a matter of public health.  And often the rules for that are a little bit more stringent, but they do vary from state to state.  Most states allow a child to attend for a period of time, sometimes 14 days, sometimes 30 days, sometimes 60 days, before they have to have a complete set of immunizations provided to the school so long as the parents or enrolling adult are folks who are pursuing that immunization process.

In some instances, if you have a child who has started immunizations but not completed a series, in those states that is also acceptable.

School enrollment FAQ: Age at time of enrollment

The matter of the age of enrollment is a thorny one for many districts, particularly when you have children coming in in their teenage years.  Many folks get confused the issue of the age to which a child has the obligation to attend school.  In other words, the age to which they must attend and then after that they can drop out, contrasted to the age to which they have a right to go to school.

And in virtually every state there’s a difference in those ages.  So, a child may be able to drop out of school at 15 or 16 or 17, but in many states a child can attend public school and has a right to do so to the age of 21.  And so educators need to examine those state laws very carefully and make sure they’re applying the correct law.

We have a lot of children who enter at 14, 15, and 16 with interrupted education.  And it’s important if they wish to continue the public school process or even embark on the public school process, that they are accorded the right to do that if the state law permits their attendance through ages higher than they present themselves.

School enrollment FAQ: Free- and reduced-lunch

One other issue which often occurs at enrollment of students but is not strictly an enrollment in school is the matter of application for free- or reduced-school lunch or breakfast.  This is a very important program because many low-income kids, including low-income immigrant kids, are not able to always have three square meals a day because of the poverty in the family.

The school providing that allows them to combat many health issues as well as ensure that they are prepared and able to learn within the school.  It also prevents them in some instances from even being sick so that they can attend school and benefit from the learning in the classroom.

Free- and reduced-school lunch is a federal program that does not require a Social Security number for enrollment.  There is a request for a number if a family has one, but if you don’t have one, you check off a box and you indicate that you do not have a Social Security number.

The determination of whether a family can enroll their child in free- or reduced-school lunch is based entirely on family income, having no relation to immigration status.  And that family income is based on the number of people who are in that family.

There are several groups of children who automatically can get free lunch, and that includes homeless children; runaway youth; migrant students who are eligible under the Title I, Part C Migrant Education Program for the children of migratory agricultural workers and fishers; and also now by a recent statutory amendment, foster children.

An administrator within the district provides the name of the child to school food administration attesting to the fact that that child is in one of those categories, and the school food authority has to immediately enroll that child in a free lunch and breakfast program.

Plyler vs. Doe A Landmark Supreme Court Case

In 1982, the U.S. Supreme Court issued a decision in a case called Plyler versus Doe.  That is a landmark case which establishes that undocumented children have a right to attend free public school where they reside.  The Supreme Court looked at a Texas statute which allowed school districts one of two options with respect to the education of undocumented students.

The first option was educating them but the district would not get a per diem allocation for that child.  And the second option was to exclude the children completely.  In the Plyler case, we had a school district in East Texas which took the second option, excluding undocumented children completely.

They filed suit in federal court in Texas, and that case went all the way up to the U.S. Supreme Court, which actually declared the Texas state statute unconstitutional as a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.  They found that that statute denied equal protection of the law to these folks in spite of the fact that they did not have a right to be in the United States under federal immigration law.

The court acknowledged that the current immigration system even in those years was broken and that these children were not legally entitled to be in the United States, but the court also looked at the greater good for the community and said it’s better to educate these children and integrate them into our communities and found that indeed they did have the ability to go to school where they were living.