By David Nash, Esq., Director of Legal Education and National Outreach
As our nation prepares for a transition in power at the federal level, there has been a great deal of discussion and confusion related to the rights of undocumented students to receive a public education, and the potential impact of large-scale deportation efforts. In this article, we will briefly review the current status of federal law related to the education of immigrant students, and the foreseeable educational and legal issues that school districts should plan for in the coming months.
No Need to Prove Citizenship for Access to Public Education
For many of us, we take for granted the notion that all students who reside in our communities are able to access a free public education, and that it is not the responsibility of school districts to question the citizenship status of students or their families as a condition for enrollment. Of course, that wasn’t always the case. Prior to 1982, the rights of students to be educated without regard to their citizenship status had not been clearly established, and some states and individual school districts took the view that students were not entitled to a free public education unless they were United States citizens.
In the case of Plyler v. Doe, 457 U.S. 202 (1982), a 1975 Texas law was challenged that denied a free public education to any non-citizen who wished to be educated in the Texas public school system. In a 5-4 vote, the Court ruled that the Texas law violated the Equal Protection Clause of the Fourteenth Amendment, which provides, in pertinent part, that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The majority opinion in the Plyler case noted that the Equal Protection clause must be applied to citizens and non-citizens alike, since they are all “persons” who must follow the laws of the United States, and are therefore “within its jurisdiction.” In a concurring opinion, Justice Powell emphasized the unique character of the case. He noted that under the Texas law, a group of children is deprived of the opportunity for education because of a violation of law by their parents. “A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment.”
Justice Powell’s concerns about the devastating impact of the creation of an underclass of citizens who are deprived of the benefits of a public education, and the wide ranging impact on our society, are a powerful warning that should be taken to heart in these challenging times.
On a related note, it is important to point out that in many cases parents of students may be undocumented, but their children may have been born in the United States. In such cases, the children would be United States citizens. As discussed below, this scenario may contribute to the potential for an increase in family separations moving forward.
NJDOE Guidance on Enrollment of Students
Each year, the New Jersey Department of Education issues guidance to school districts reminding them of the prohibition on making enrollment decisions conditional on immigration status. This year, that memo was sent in a broadcast email to school districts on August 7 – See NJDOE memo on enrollment and immigration status. The memo reminds school officials “that school districts are prohibited from requiring students to disclose or document their immigration status, making inquiries of students or parents that may expose their undocumented status, or engaging in any practices that hinder the right of access to public schools.” The guidance provides helpful links for additional information related to acceptable forms of documentation for student enrollment, addressing immunization requirements, understanding the rights of unaccompanied minors, and addressing the needs of migrant students, including seasonal workers who move from one community to another throughout the year.
Common mistakes made by school districts related to enrollment include requiring parents or guardians to produce a state-issued driver’s license, social security card or other documentation that is only available to U.S. citizens.
In 2016, ACLU-NJ brought and then settled lawsuits against four New Jersey school districts and a charter school whose published registration information appeared to hinder enrollment of immigrant students. The districts and charter school had appeared to be requiring parents to produce identification that could not be obtained by someone without a Social Security number or valid immigration status. If true, such requirements would be in violation of the ruling in Plyler v. Doe and violate the Equal Protection Clause of the Fourteenth Amendment.
Federal Policy Limiting Access to Schools, Places of Worship, Funeral Ceremonies At Risk
The incoming Administration may choose to take action to end a decades-old federal policy that has treated schools as “sensitive” or “protected” areas where immigration agents are not supposed to surveil families or make arrests, except in extraordinary circumstances, so as not to deter children from going to school. However, if that were to occur, New Jersey has had in place strong limits on any efforts by local or state law enforcement to assist ICE in such efforts.
New Jersey Attorney General’s Directive Limiting Law Enforcement Work with ICE
In November 2018, Attorney General Gurbir Grewal issued the “Immigrant Trust Directive,” a landmark statewide policy designed to strengthen trust between New Jersey’s law enforcement officers and the state’s diverse immigrant communities. The Directive ensures that victims and witnesses feel safe reporting crimes to local police without fear of deportation.
Under the Directive, New Jersey’s police officers:
- Cannot stop, question, arrest, search, or detain any individual based solely on actual or suspected immigration status;
- Cannot ask the immigration status of any individual, unless doing so is necessary to the ongoing investigation of a serious offense and relevant to the offense under investigation;
- Cannot participate in ICE’s civil immigration enforcement operations; and
- Cannot provide ICE with access to state or local law enforcement resources, including equipment, office space, databases, or property.
The Directive also places limits on prosecutors and correctional officers in how they interact with ICE. Given these limitations, local and state law enforcement officers would be prohibited from working with ICE, which of course would include any efforts by ICE to use local or state law enforcement to enter school grounds as part of immigration enforcement efforts.
Planning for Foreseeable Legal and Educational Issues
In light of anticipated changes in the federal approach to enforcing existing immigration laws, and the potential for changes in federal law or guidance moving forward, school leaders should plan for foreseeable issues that may arise in 2025.
These include:
- A rise in the incidence of bias-related acts targeting students based on immigration status, national origin, race, ethnicity, and religion;
- Separation of students from parents or guardians who are detained pending potential deportation;
- Deportation of parents or guardians with their children, who in some cases may be natural born U.S. citizens, remaining in the United States;
- An increase in incidents of homelessness, and lack of support for basic needs, of some students who are left behind;
- Emotional trauma for students who remain after family members are detained or deported, and the trauma for the friends of students who are deported;
- Students and families going underground and disenrolling from public schools;
- Staff members confused about the state of the law and requesting evidence of citizenship status;
- Potential efforts by Immigration and Customs Enforcement (ICE) and/or federal officials to gather information from school districts regarding students and their families; and
- Potential efforts by ICE and/or other federal officials to enter school grounds and detain students.
Action Steps to Consider
Action steps that school leaders should consider taking include the following:
- Consult with your superintendent and board attorney to review existing district policies and current legal obligations and ensure that all school staff members understand that questions regarding citizenship status cannot be asked or used as a condition for enrollment, and to understand federal and state law regarding confidentiality requirements for student records.
- Review the Memorandum of Agreement between Education and Law Enforcement in order to ensure that protocols continue to be followed regarding information sharing with law enforcement, Handle with Care notices when students experience traumatic events (including the detention of a family member) and when/how students may be questioned or detained by law enforcement.
- Develop proactive communication strategies to ensure all families and students that school districts will never inquire about citizenship status or deny needed supports or services to students based on citizenship status.
- Identify available resources in your community and through NJ4S to provide support for students during crisis situations, such as family separation and homelessness.
- Review existing staff protocols related to crisis response and Identify mental health supports available to support students and families in the midst of crisis situations.
- Ensure that existing requirements for reporting bias-related acts to local law enforcement and the county prosecutor’s office are followed where students are targeted due to immigration status or for other reasons related to a protected class (e.g., national origin, race, ethnicity, religion, etc.).
- Reiterate to appropriate staff other related legal requirements, including the need to ensure meaningful communication with parents whose primary language is not English, and the need to ensure access to gifted education, rigorous courses, special education and extracurricular activities as appropriate, without creating artificial barriers as a result of a student’s current lack of English language proficiency.
Additional State-Level Guidance Anticipated
It is anticipated that additional guidance will be forthcoming from the State of New Jersey to address the many questions that have arisen related to the issues outlined in this article. Topics where such state-level guidance would be helpful include protocols for addressing Immigration and Customs Enforcement (ICE) requests for information and/or efforts to detain students or others while on school grounds.
While school officials await this much-needed guidance it is critical to take the steps that we can to signal to all students that our public schools remain committed to providing a safe, affirming environment for students, without regard to citizenship status, and to continue to proactively respond to issues that may arise in the coming months that may negatively impact the safety, security and emotional well-being of students and families in our school communities.