By: Sandra L. Jacques, Esq., LL.M., Assistant Director of Legal Education
Date: January 31, 2025
With the January 2025 change of Presidential Administrations, there has also come a change in the United States’ Immigration and Deportation Policies. School Districts need to be prepared to assist their student population by having procedures and resources in place for any student that finds themselves in a perilous situation due to deportation of their caregivers. Not only will this sudden separation have traumatic effects on the student’s social and emotional wellbeing, the student may also be faced with being Homeless or having an otherwise uncertain place to live, which in turn creates uncertainty around how and where the student is to be educated.
This article is not intended as an exhaustive review of all aspects of protecting the rights of undocumented students. Readers are encouraged to review the latest guidance from the NJDOE on this topic, as well as the Law Primer developed by NJPSA and a recent LEGAL ONE article on Protecting the Rights of Undocumented Students.
Citizenship Not Required to Attend School
United States Citizenship is not required for a domiciled child to attend public school for free. Under the Supreme Court decision in Plyler v. Doe, 457 U.S. 202 (1982) (see also NJAC 6A: 22-3.3b) school Districts may not inquire about immigration status (except for F1 visa students) when enrolling a child; and may not require as a condition of enrollment: Proof of lawful admission to the U.S.; a Social Security Number; Income Tax Returns; or Documents relating to compliance with local housing ordinances, or tenancy conditions.
Annually, the NJ Department of Education publishes a Broadcast Memo reiterating the above information to all School Districts in New Jersey. See August 7, 2024 Broadcast Memo. “Additionally, N.J.A.C. 6A:22-3.4 prohibits school districts from making enrollment contingent upon the receipt of information or documents either protected from disclosure by law or pertaining to criteria that are not a legitimate basis for determining eligibility to attend school.”
See also the NJDOE August 28, 2024 Broadcast Memo pertaining to McKinney-Vento Implementation in New Jersey.
Attendance Considerations
In situations regarding immigrant students and families, there is a possibility that such students will experience heightened issues with school attendance. Often the oldest children in a family also serve as caregivers, and language barriers interfere with a School District’s attempts at communicating and providing information to the families. Additionally potential reasons for excessive absenteeism include fear of being discovered, instability of their home life, or also emotional and psychological impact issues of experiencing the deportation of a family member.
As required by NJ law, for purposes of recording attendance in the School Register, students must be marked as present, absent or excused, NJAC 6A:32-8.3(i). For purposes of the School Register, excused absences are limited to the following reasons:
- Religious observance (N.J.A.C. 6A:32-8.3(h));
- A college visit (up to 3 days per school year, only for students in grades 11 and 12);
- “Take Our Children to Work Day”;
- Participation in observance of Veterans Day (N.J.S.A. 18A: 36-13.2) or district board of election membership activities (N.J.S.A. 18A: 36-33);
- The closure of a busing district that prevents a student from having transportation to the receiving school; or
- Attendance at 1 civic event per year for students in grades 6 – 12.
Other than for these enumerated absences, there is no distinction between “excused” and “unexcused” absences in the School Register for State and Federal reporting purposes. How a School District defines “excused” or “unexcused” absence for purposes of truancy, student conduct, promotion, retention and the award of course credit is a local decision. School Districts can take any and all action authorized by their policies and procedures when categorizing these absences.
New Jersey requires specific action by a School District based upon a student’s number of absences. For up to 4 cumulative unexcused absences, the School District must notify the student’s parents prior to the start of the next school day (or show a reasonable attempt) and identify needed action to encourage attendance. For Between 5 and 9 cumulative unexcused absences, the School District must notify the student’s parents prior to start of the next school day (reasonable attempt), learn the cause; and develop an action plan to address patterns of unexcused absences. Truancy occurs when a student between the ages of 6 and 16 has 10 or more cumulative unexcused absences, and the student may be referred to the Family Part of the NJ Superior Court.
It is important to stress that a school district is not mandated to initiate legal proceedings when a student has reached 10 unexcused absences in municipal court or Superior Court. Instead, it is required that the district meet and consider, given all of the circumstances, whether it wishes to pursue such legal action. Based upon the foregoing, School District will have to consider what could be deemed an “excused absence” as it applies to the need to involve local authorities and/or truancy issues. Furthermore, families may not realize that by “staying home”, they are actually calling attention to themselves, as the District has investigating and reporting obligations pertaining to absent students.
It is imperative that Districts work with families in obtaining current and up to date emergency contact information, as well as available resources in their communities. In the event that the parent suddenly “isn’t there anymore”, the District will be in a better position to assist their students if it possesses current information in this regard. Of course, one of the problems with acquiring this information will again be fear of the student and/or families of providing any personal or location information about themselves.
If a student stops attending school the school district does have a legal obligation to account for the student and determine whether the student has transferred and is being educated elsewhere. If the student’s whereabouts cannot be determined within 10 school days, the student must be recorded as a dropout (D8) “reason unknown.“ See NJDOE School Register – Common Questions and Answers – https://www.nj.gov/education/finance/register/faq.shtml
Residency, Homelessness, Family Crisis and Affidavit Students
In situations where a student’s parents or guardians have been detained or deported, a student may be able to continue to be educated in that school district as an affidavit student, as a homeless student or a student in family crisis. We will consider each of those potential scenarios below.
If a student’s parent or guardian is detained, a student may be entitled to continue to attend school in the district where they had previously resided with a parent or guardian “as an “affidavit student.” In such situations, domicile can be established for a child who lives in the home of another person who is domiciled in the School District, and is supported by that person “gratis”.
- Proofs of domicile required:
- Resident’s sworn statement (Affidavit) of:
- Domicile within the District;
- Supporting the child gratis;
- Assumption of School-related duties for the child;
- Documentation
- Parent/guardian’s sworn statement (Affidavit) of inability to support child, plus documentation of financial or family hardship.
- Resident’s sworn statement (Affidavit) of:
The Caregiver need not have legal custody or guardianship. A student may not be deemed ineligible for enrollment as an Affidavit Student when the Caregiver is unable to provide required sworn statement from student’s parent(s), as long as underlying requirements of the law are met. Check the NJDOE website for sample Affidavit student forms (See https://www.nj.gov/education/residency/forms.shtml ).
Advising parents and guardians of the Affidavit Student option and encouraging pre-planning if there are other responsible adults within the community who are willing and able to care for the child if sudden separation occurs can help ensure that the child’s education is not interrupted and that the child does not need to be labeled as homeless or placed into foster care.
Alternatively, if the child does become homeless it is critical to understand the obligations of the school district. The McKinney-Vento Homeless Assistance Act (McKinney-Vento Act) (42 U.S.C. § 11431-11435) is federal legislation that ensures the educational rights and protections of children and youth experiencing homelessness. See: https://www.ed.gov/ESSA. “Homeless” means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of § 103(a)(1). A fixed residence is one that is stationary, permanent and not subject to change. A regular residence is one that is used on a regular/nightly basis. An adequate residence is one that is sufficient for meeting both the physical and psychological needs typically met in home environments. A district board of education shall determine that a child is homeless.
It is important that your District’s Homeless Liaison is prepared to deal with such issues. Their responsibilities include: identifying homeless children and youth; ensuring that homeless students can enroll immediately and participate fully in school; Informing parents, guardians, or youth of educational rights; supporting unaccompanied youth in school selection and dispute resolution; linking homeless students with educational and other services, including preschool and health services; and ensuring the public posting of educational rights through the school district and community.
There are also Guardian considerations. Note that “guardian” means a person to whom a court of competent jurisdiction has awarded guardianship or custody of a child, provided that a residential custody order shall entitle a child to attend school in the residential custodian’s school district subject to a rebuttable presumption that the child is actually living with such custodian. It also means that the Division of Child Protection and Permanency (DCPP) within the Department of Children and Families may be serving as the guardian for purposes of establishing a child’s right to receive an education within a school district under N.J.S.A. 18A:38-1(e).
The McKinney-Vento Act defines unaccompanied youth as “a homeless child or youth not in the physical custody of a parent or guardian” [42 USC § 11434a(6)]. Taking a closer look at the definition, two conditions must be present for a child or youth to be considered an unaccompanied youth under the McKinney-Vento Act:
- The child’s or youth’s living arrangement meets the Act’s definition of homeless, and
- The child or youth is not in the physical custody of a parent or guardian.
For issues pertaining to Medical Consent for unaccompanied youth and liability for school nurses, counselors or others that may provide services, please refer to https://cdnsm5-ss14.sharpschool.com/UserFiles/Servers/Server_1012671/File/Board%20of%20Directors/Policies%20Procedures/Overview/3000%20Students/UHYProcess10.20.17.pdf.
In situations where a student is not considered “homeless”, but none-the-less is impacted by deportation, such that they are no longer physically residing within the School District, a student’s situation may constitute a Family Crisis.
In cases of sudden separation, a child may now be residing with family members or others in a different community from where the child previously resided. A 2013 law (P.L. 2013, c. 231) permits a student to finish a school year in the School District if the student moves out of District as a result of the home being uninhabitable, disruption of the family unit caused by death of a parent/guardian or other family crisis. NJDOE guidance states, “Generally, a student is eligible if the event is sudden, unexpected, and outside the family’s control.” A sudden detention of a parent or guardian related to immigration enforcement would likely meet the definition of “other family crisis.” The School District must provide transportation if the student lives outside the District but continues to attend because of a family crisis. At the end of the Fiscal Year, a District may apply to the Executive County Superintendent (ECS) for reimbursement of transportation costs.
Moving Forward
While the information contained within this article is not legal advice, its intent has been to provide School Districts and its stakeholders with resources and an overview of applicable laws and issues to consider to assist their students as Immigration Law continues to evolve in the coming months and year. It is important that each District works with its School Board Attorney and community in preparing for and assisting students and their families that are in crisis.
Note: Thanks to Diahann De Ruggiero, MSW, M.Ed., Region I Director serving Bergen, Hunterdon, Passaic, Somerset, Sussex and Warren County,McKinney-Vento Education for Homeless Children and Youth Program, Bergen County Special Services School District, for information provided in this section.