Anticipating that the federal initiatives of the current administration on undocumented students will be impacting schools in New Jersey, and given the complexities of this issue, the intent of this primer is to provide a summary of current legal requirements and to provide knowledge-based tools to school administrators to assist them in addressing this evolving issue. Importantly, this primer is not intended to provide legal advice. For that, school leaders should look to their school board solicitors.
Current Federal Law
On January 20, 2025, President Trump issued an Executive Order pertaining to the influx of illegal immigrants which was described as a serious national security threat. To this end, on January 21, 2025, one day after the issuance of the Executive Order, the United States Department of Justice issued a Memorandum to all United States Attorneys and Assistant Attorneys General, which, among other things, states (1) that state and local officials must comply with the Executive Branch’s immigration initiatives, (2) that non-compliance with “lawful immigration-related commands and requests” from federal authorities shall be reported, and (3) that the Civil Division of the U.S. Justice Department shall identify “state and local laws, policies and activities that are inconsistent with Executive Branch immigration initiatives and, where appropriate, to take legal action to challenge such laws.”
The Executive Order and the corresponding U.S. Department of Justice Memorandum only signifies a change in the policy of the Federal Government. It does not constitute a change in the existing law established by statutes and regulations of either the Federal or State governments. And to the extent that policies are implemented that conflict with existing statutes and regulations, it is anticipated that they will face extensive legal challenges that will have to be decided by the courts. Accordingly, until those legal challenges are decided and until the laws referencing undocumented students are changed, the existing laws must be followed.
In this regard, the leading case on the rights of undocumented students is Plyer v. Doe decided by the Supreme Court in 1982 by a 5/4 majority. The decision of the divided Court held that discrimination on the basis of immigration status in access to basic public education violates the Constitution. Accordingly, since this decision, undocumented children or young adults have been accorded the same right to attend public primary and secondary schools as do US citizens and permanent residents.
Based on the Plyer decision public schools may not:
1. Deny admission to a student on the basis of their undocumented status.
2. Require students or parents to disclose or document their immigration status.
3. Make inquiries of students or parents that may expose their undocumented status.
4. Require social security numbers from students as that may expose undocumented status.
5. Affirmatively provide aid in removing a student from school based on the student’s immigration status or engage in practices that hinder the right of access to public schools.
While schools must be open to all students regardless of citizenship status, it is important to also clarify issues related to birthright citizenship in order to address the confusion and emotional trauma that may have resulted when President Trump issued an Executive Order purporting to end birthright citizenship. The right to U.S. citizenship is embedded in the Fourteenth Amendment to the Constitution, which provides that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The State of New Jersey is part of a multi-state lawsuit challenging the Executive Order as unconstitutional. The lawsuit notes that an Executive Order cannot be used to nullify a constitutional right.
McKinney – Vento Homeless Assistance Act
The Act delineates educational rights and support for children and youth experiencing homelessness, including guaranteeing immediate access to a free, appropriate public education. This includes undocumented students who are experiencing homelessness.
Current New Jersey Law
1. N.J.A.C. 6A:22-3.3 prohibits barring any student from public elementary and secondary schools based on immigration/visa status, except for students on F-1 visas. (F-1 visas are generally for foreign nationals who wish to travel to the US.)
2. While school districts may request verification of residency, per N.J.A.C. 6A:22-3.4(b) school districts are prohibited from excluding from consideration any documentation or information presented by the applicant to demonstrate eligibility for enrollment in the school district.
3. N.J.A.C. 6A:22-3.4© requires school districts to consider the “totality of information and documentation” offered by an applicant and “shall not” deny enrollment based on a failure to provide a particular form or subset of documents without regard to other evidence.
4. In accordance with the Plyer decision school districts may not require parents to produce state-issued driver’s licenses, social security cards, birth certificates or other documentation only available to US citizens.
Immigrant Trust Directive
Absent a judicially issued arrest or search warrant, New Jersey Attorney General Law Enforcement Directive No.2018-6, known as the Immigrant Trust Directive, first issued in 2018, provides that New Jersey law enforcement officials generally may not (a) stop, question, arrest, search, or detain any individual solely based on actual or suspected citizenship or immigration status or actual or suspected violations of federal civil immigration law, (b) participate in civil immigration enforcement operations, (c) inquire about the immigration status of any individual, unless doing so is necessary to the ongoing investigation of an indictable offense by that individual, and relevant to the offense under investigation, or otherwise is necessary for the enforcement of any criminal law. It is important note that a judicially issued arrest or search warrant is a document signed by a Judge and will, in most cases, appear on issuing court’s letter head. A judicial warrant will never be signed by a prosecutor or a law enforcement employee; it must bear the signature of a Judge.
New Jersey Law Against Discrimination (NJLAD)
NJLAD prohibits discrimination and bias-based harassment in employment, housing, and places of public accommodation—including schools—based on national origin, ancestry, nationality, race, and other protected characteristics.
Most recent guidance from the NJDOE.
Physical access to School Premises
1. If an immigration agent seeks to or enters school grounds in an official capacity, immediately advise the superintendent or his /her designee.
2. Request the agent to (a) provide his/her credentials, (b) state the purposes for being on or seeking to be on school premises, and (c) provide all documentation that authorizes the agent to have school access.
3. Inform the agent that absent exigent circumstances, direction must be sought from the superintendent and/or the superintendent’s designee.
4. School officials are required to allow the agent access to school premises only by way of an arrest or search warrant issued by a court, unless there are exigent circumstances. Administrative immigration warrants are not sufficient. For example, an ICE Warrant for Arrest of Alien (Form I-200) is a warrant often used by immigration officers but is not a judicially-issued warrant, because, as noted above, it is not signed by a Judge.
5. If the immigration agent declares the presence of exigent circumstances and demands access to the school, immediately notify the superintendent or his/her designee.
6. Absent direction from the superintendent or his/her designee, school administrators are not required to provide information about students or make students available to the agent.
Access to Student Records
1. Before providing to an immigration official personally identifiable information of a student, consult the superintendent or his/her designee.
2. Education records must be produced only upon the issuance of a court order or a judicially authorized subpoena, the validity of which should be evaluated by the board’s attorney.
3. The Family Education Rights and Privacy Act – FERPA – requires that reasonable efforts must be made to notify the parent before disclosing any student information. FERPA applies to all schools that receive funds under any program administered by the NJDOE. Further, N.J.A.C. 6A:32-7.6 provides, among additional requirements, parents and students the right to three days’ notice of the request.
FAQ
1. Can schools ask students or their parents their immigration status? No.
2. Can schools bar students from attending school based on their immigration status? No. (N.J.A.C. 6A:22-3.3)
3. Can schools make enrollment contingent upon the receipt of information or documentation? No. (N.J.A.C. 6A:22-3.4)
4. Can schools prevent enrollment of a student who cannot produce a birth certificate? No.
5. Can local or state law enforcement officials ask to question students and/or their parents about their immigrant status? No. (Immigrant Trust Directive)
6. Can school officials be used by immigration authorities to enforce federal civil immigration laws? No.
7. Are notes that are maintained as a memory aid by an individual counselor or other school official, and which are not shared with any other school officials, considered student records? No.
The NJPSA Legal Department will continue to update this Primer as we receive more information regarding the rights of undocumented students.