Attorney Roger C. Rosenthal is the Executive Director of the Migrant Legal Action Program (MLAP), a national non-profit support and advocacy center located in Washington, D.C.
Mr. Rosenthal is widely recognized as one of the foremost national experts on the rights of English Language Learners, immigrant students, and migrant farmworker students in the public schools. He undertakes advocacy on Capitol Hill and before federal administrative agencies on behalf of these student populations and their families. He has served a two year term as Co-Chair of the National Hispanic Education Coalition. He is also a frequent and popular trainer on these topics at national, regional, state, and local events.
In this video interview with Colorín Colorado, Mr. Rosenthal discusses legal guidelines and requirements regarding the enrollment of ELLs and immigrant students in U.S. public schools, as well as some of the key policies that impact ELL education.
Note: This interview was filmed in 2014 but includes references to ELL policies that are still in effect.
Part I: Welcoming Immigrants
The Migrant Legal Action Program and Its Work
The Migrant Legal Action Program is a national nonprofit support and advocacy center located in Washington, D.C. We work on behalf of migrant and seasonal farmworkers and try to serve as their voice. We also work on behalf of immigrants and their families. And for those populations, we work on a host of issues, including education, health, food and nutrition, housing, and a variety of other services.
We were founded as part of the War on Poverty in the late ’60s and were established legally in 1971. So we have a long history. And we have evolved over time in terms of our funding currently being privately funded and working on issues particularly in the education field and food and nutrition.
Training for educators on enrollment policies for immigrant students
The Migrant Legal Action Program, which we call MLAP, works with educators around the country in a variety of different ways. One of the key services that we provide is to conduct trainings and workshops, whether it be at a local school district, a regional center, or often at statewide conferences to explain the rights of immigrant students and English language learners in the public schools.
Information about enrollment policies and practices and services that can be provided and should be provided to English language learners is important because in many parts of the country this population is new or is growing. And if a school system is unaware of some of the requirements, these children could be excluded either from school altogether or from some services within the school itself.
The number of people who have an impact on these students and families runs the gamut from superintendents, assistant superintendents, to principals, to teachers, to clerks in offices. All of those people can benefit from a full understanding of these practices.
Different cultural expectations about schools
As many people are aware, students and families from Latin America bring certain understandings about the school system and schools from their home country that may actually differ from the way we think about schools in the United States. In many Latin countries, schools are viewed as government entities. And when a parent enters a school, they do consider that they’re entering a government building.
We in this country often don’t think of things that way, but if there is an immigrant who may be afraid of the government or may have an undocumented person in their family, they will be particularly anxious when entering a school. So, we need to be sensitive as much as we can be to the fact that parents from different cultures from different countries may have different perceptions about how the school works.
If a school clerk or a principal or a superintendent may not be as welcoming as one might hope, that can have many ramifications within the community of immigrants for that particular municipality or school district.
We have to try as much as possible to put ourselves in their place for a moment to really understand how to be most welcoming and most helpful to the enrollment process.
Attitudes towards immigrants in towns where the demographics are changing
In addition to cultural assumptions that parents may bring to a school district or to a school building, they’re also going to be sensitive to the environment for immigrants in that community. So, if the community itself has been welcoming, they’ll feel very positive. If there have been attempts to or successful efforts to pass anti-immigrant legislation in that community or in that state, there may be even a greater fear on the part of parents about working with the district providing information that the district needs to enroll the child.
Many communities are very welcoming to this new population. Many of them have adjusted to demographic changes in their community, but unfortunately there are some communities, particularly in rural areas, which are struggling to welcome the population. In most of those areas the parents have come in for jobs that keep the economy going for the community, but there’s not always a conscious connection to the contribution that the parents and families are making to the local economy.
We have seen over the last 10 or 20 years that there have been great demographic changes in some parts of the country, many areas where there have not been many immigrants or folks who don’t speak English. So, there are regions where that has been a particular issue, especially the Southeast and the Midwest, although it exists all around the country.
In rural communities, it’s even more obvious because you’ve had populations often that have lived in that community or in that region or area for many years and all of a sudden there’s a whole new cultural element, a new population that’s there. And because rural areas tend to be a little bit less diverse and smaller population, the changes are more dramatic and are seen in a manner that can really affect school enrollment process.
A cautionary tale: Conflicts between groups of students
In some situations and one in particular that I’m aware of, you had a community which had several different populations of immigrants, and the school system was not very welcoming. What happened in that community was that teenagers started banding together. There was an Asian community and there was a Latino community, and they started banding together in groups.
And what happened as a result of that was that as these kids started feeling more and more on the outside, those groups of kids bound together tighter and tighter. And what resulted were actually a Latino gang and an Asian gang in that community. Much of that was related to how they felt welcome or dismissed by the local school district. And so the community itself was at least in part responsible for the creation of these feelings, and as a result the groups and gangs which developed.
Encouraging bilingual students to become lawyers and advocates
When meeting with students, I'm always very impressed at their goals. They want to be teachers, they want to be doctors, they want to be engineers, they want to be lawyers, and many students want to change the world.
One of the areas that many immigrant students could make a great contribution would be in the law, particularly if they are bilingual and have multicultural sensitivity because they can give back to their community in ways that others might have more difficulty doing. And so I encourage any students to consider going to law school to give back to their community and to be able to make a contribution to the society.
Part II: Enrollment Policies
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.
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: 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: 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.
Recommendations for addressing concerns or violations
If parents think that they’re being denied enrollment in violation of some of the principles of enrollment in that state, they should go to the principal of that school, and if that person is not able to help, they need to get assistance to go to the main office for that school to rectify the situation.
If that doesn’t result in a remedy, then they’re going to have to look for some assistance from a community group, a legal services program, or other advocates within their community who can try to help and communicate with the school and try to determine what the issue is.
If teachers in a school perceive that there’s a problem in enrollment by talking to students or family members, they too can go to federal program administrators, principals, or assistant superintendents in their district to ask about the issue and to talk out the problem.
Very often it’s helpful for everyone to look together at the state law that’s being cited as the basis for the exclusion or the issue involved. And very often an examination of that law reveals that there’s a more expansive opportunity to provide enrollment, there are different alternatives, or there are simply misunderstandings about what the law requires, and it keeps everybody on the same page.
Part III: Regulations for ELL Education
Lau vs. Nichols: A landmark case for ELL education
The U.S. Supreme Court in the 1970s received a case out of the San Francisco Unified School District. The case is called Lau vs. Nichols, and it established a very important principle which becomes the basis for the requirement for English as a second language in U.S. public schools.
What the Supreme Court said in that case was that Title VI of the Civil Rights Act of 1964 protects children who are not proficient in English and their parents from discrimination. And in order to provide them their rights, they need to be provided English as a second language in some valid form in order that they not only learn English, but also gain access to the content of instruction. Both of those goals are equally important, and both must be a result of whatever program the district undertakes.
What’s very interesting about the Lau case is that at the time that the lawsuit was filed at the federal district court level, you had 2,856 children of Chinese ancestry who were attending the San Francisco Public Schools. Only about 1,000 of them were getting some kind of English as a second language, but almost 2,000 were sitting in a classroom not understanding what the content was of the curriculum and not gaining any access to learning English. And the Supreme Court said that was a violation of their civil rights under Title VI.
Title VI prohibits discrimination on the basis of race, color, or national origin in any program receiving federal financial assistance. Because all public schools receive some form of federal assistance, Title VI applies. If a school does not receive federal assistance than Title VI does not apply.
I find occasionally that districts think that putting a child in a mainstream classroom without an English as a second language program and curriculum is acceptable because it is a way to have the child learn English, but it’s exactly the kind of problem that the Supreme Court found in violation of federal law in the Lau vs. Nichols case.
Castañeda v. Pickard: Are ELLs receiving the services they need?
The Supreme Court establishment of the right to an ESL program in Lau vs. Nichols was a very important development in the law for English learners and immigrant students and families. The federal court system also looked at the issue of what constitutes a legally sufficient ESL program.
So, just having the right to that program, of course was not enough, it's important that the program be substantive, and allow access to both content and learning English.
The case of Castañeda vs. Pickard, which also originally came out of the State of Texas, establishes a three-part test. And that three-part test is also found in U.S. Department of Education regulations which bind all districts that receive any federal funding.
The Castañeda Court, which was a U.S. Court of Appeals, which is the step before the U.S. Supreme Court, established that three-part test in the following manner. It said that a district had to adopt a sound approach to the education of children who were English learners. It had to reasonably implement that approach, and then it had to monitor that the approach was working.
That's a very straightforward set of tests which can be applied to any school district's ESL program. Since we have a lot of testing these days in public schools, it's not very difficult to determine whether or not a child is making progress in both English language proficiency, as well as in the content curriculum.
Title VI prohibits discrimination for programs receiving federal funding
Title VI prohibits discrimination on the basis of race, color, or national origin in any program receiving federal financial assistance. Because all public schools receive some form of federal assistance, Title VI applies. If a school does not receive federal assistance, then Title VI does not apply. But I've not ever seen a public school where the district did not receive some form of federal money, either IDEA money, or some other form which then has Title VI kick in.
Title VI requires all communication in a language parents understand
Title VI of the Civil Rights Act of 1964 provides protections to students who are not proficient in English, but the statute also provides protections and rights to parents who are not proficient in English. In fact, those parents have a right to all communications from the school district being in a language that they can understand.
That doesn't necessarily mean that the communication has to be writing. It can be explained to somebody over the phone or in a meeting, but in large districts very often doing a translation and providing the information in writing is the most cost efficient.
There are a variety of documents, of course, in communications between the school district and the family that are often not thought of at first blush when one thinks of translating or interpreting a document.
One thing that is very important, for example is permission slips for a field trip because that's a legal document. In addition, report cards need to be provided in a language that the parents understand, or again fully explained to them orally.
And finally, manuals – some of them are fairly lengthy. But they have to also be provided or explained in a language that the parents understand because how do we hold parents and students accountable for the rules of a district if they don't understand those rules?
Title VI requires a competent interpreter for parents
Title VI of the Civil Rights Act of 1964 also requires that there be interpretation in parent teacher conferences. It's the obligation of the school district to provide the interpretation. No school district should be asking a parent to bring their own interpreter. There are several reasons for that.
The first one is that school districts are required to provide competent interpretation, and if somebody brings an individual along, the district has no idea of the competence of that individual. If someone is an employee of the district or is a volunteer who speaks the language of the parents, then they can be judged, they can be tested, they can be evaluated as to their competence.
But there's another issue why school districts have to provide the interpretation and that is the privacy issue. There could be health issues, there could be discipline issues, there could be violence issues, there are a variety of things that could be discussed, in addition to student performance. And it's important that every parent, whether they're an English speaker or not have that right to privacy.
One of the other ramifications of the requirement of competence means that using students, or minors for interpretation in parent teacher conferences, or other school context is not appropriate or legal because the Office for Civil Rights of the U.S. Department of Education views children as per se not competent in providing interpretation because of their age.
There are districts that are trying to use students for interpretation fully out of goodwill trying to involve the students in community activities and make the parents feel comfortable, but it's very important for districts to understand that that's not permissible.
It's also not permissible to use minor siblings for that kind of interpretation because you're providing information to a sibling that the parents may not want the child to know. But in any event if the child is a minor they are not considered proper interpreters, and it is illegal to use them under Title VI of the Civil Rights Act of 1964.
Placement of ELLs must be age-appropriate
It's important for everyone to understand that a child cannot be placed in a level of school or in a grade purely on the basis of English language proficiency. It has happened, that a child who might be age appropriate for 5th or 6th grade gets put in the 1st grade because that's intensive in terms of reading and language acquisition. But that is not appropriate under federal law.
Placement needs to be made as age appropriate as possible, and in any event, cannot be made based on language proficiency. With elementary school age children, of course, that is a lot easier than with older children in middle or secondary school. Often we see immigrant children entering school with interrupted education who are 14, 15, and 16. It is very important that school districts make decisions about the grade assignment based on academic exposure as opposed to their lack of proficiency in English.
It is the obligation of the district to ensure that the child little by little learns the English language. But it's very important that the district not put them in a lower grade because of that language proficiency.
Retention based on language proficiency is not legal
It's illegal to retain a child based on their language proficiency. If a child is going to be retained based on their lack of academic performance, that's acceptable, but the teacher has to tease out how much of the academic performance is related to language proficiency. And if language proficiency is the dominant issue, they should not be retained because it is the obligation of the school district to engage that child in enough activity that they gain that language proficiency. And they should be promoted, in spite of the fact that their language proficiency may still be at a fairly elementary level.
ELLs with special education needs are entitled to both ELL and special education services
I could talk for a long time about the issue of English language learners in special education, but I wanted to make two key points for educators to understand. In many districts, there are folks who don't understand that a child who is an English language learner, as well as one who could benefit from special education, is actually entitled to the protections of federal law on the basis of both statuses.
So, an English language learner is entitled to ESL, and a special ed child is entitled to special ed assistance, and if you have an English language learner who is also special ed, they're entitled to both. I recognize that that can be very difficult to implement, but the child does have the right to gain language proficiency in English as well as the services that would be provided in a special education context.
Another point is if you're testing a child for special education who is not proficient in English, and you're testing that child in English, you're not really testing the special education issue because they may not be understanding the question, not because of cognitive issues, but because of their lack of English language proficiency.
This can be a difficult issue for school districts to deal with and to manage, but it's very important that administrators and teachers be sensitive to the language of the instrument that they're using to test for special education because they may be testing language proficiency rather than an auditory problem, a cognitive problem, or something else.
Part IV: Special populations
What are the laws regarding financial aid for undocumented students?
Educators work very hard to get students to graduate from high school. But many are concerned about the access that their immigrant students may have to college, to post-secondary education. There are individuals who get confused between access to public post-secondary institutions and the ability to pay for those institutions.
So let me try to clear that up. Almost all states in the United States allow undocumented students to attend public institutions of post-secondary education, community colleges, and four-year colleges. There are four states that by state law make an exception, and do not allow undocumented students to attend. They include Alabama, South Carolina, Montana, and Georgia.
In Georgia the law is written such that undocumented students may not be admitted to a school where they may be displacing another student. So where there is a competitive admissions process, they would be barred. If there's open admissions in a post-secondary institution, the students would be allowed to apply.
It's important for educators to also understand that undocumented students do not have access to federal loans or federal grants, and undocumented students should not be using the FAFSA form and filing it with the federal government because it is a useless act to do that.
Finally, there are some states that allow undocumented students to get in-state tuition, in spite of their undocumented status. Those are states which have passed specific legislation, often called the "State DREAM Act" that allows that, and there are different circumstances in every state. Generally the student has to have graduated from high school in that state and lived in that state for a number of years.
Educators and advocates can find out which states have passed that kind of legislation.
The majority of states require that undocumented students, even if they graduated from high school in that state, pay out-of-state tuition, although they may have lived or all of their lives in that state. There are only a minority of states, about 20, that permit, as a matter of state law, undocumented students to pay in-state tuition.
Enrolling unaccompanied minors in schools
2014 saw a great influx of unaccompanied minors from Central American countries. They are often being located by the federal government in rural areas, but they are also being located in urban areas.
These children have been detained by the federal government, and released to relatives generally in these local communities, where they're expected to go to school pending a determination about whether they're going to be sent back to their country.
The enrollment issues that would apply to other immigrant students of course applies to them as well. There would be no requirement for birth certificates, there would be no requirement for Social Security numbers, they would need to have immunization documents, but they may be accorded a certain amount of time to get those prior to, to possibly being put out, and those kinds of issues.
And they should be treated the same way that other students who come from other countries would be treated by the school district.
The migrant education program
There is a federally funded program for the children of migratory agriculture workers and migratory fishers. It's known as the Title I Part C Migrant Education Program, and exists in virtually every state in the United States.
The program is based on the fact that these children are mobile, they move from one district, from one state to another because of their parent or guardian’s agriculture or fishing work. This program is not to be confused with the issue of unaccompanied children who are unaccompanied minors coming from Central America.
The needs of these children are very significant. They're some of the most disadvantaged children in the United States because of their poverty and because of their movement. They often suffer multiple interruptions every year in their education. Leaving early before the end of the year is completed and coming back late, and having to make up that work during the year.
What the migrant education program does is to knit a fabric nationally so that these children can get supplemental instruction during the summer and during the school year to make up for the disadvantages of that mobility.
These children should be getting Title I Part A services because of their low income, as well as Title I Part C migrant education services. It's a program that has many models of excellence in the summer as well as during the school year. And you find more and more children graduating from high school as a result of both the program's success and the hard work that these kids put into the program.