Last Friday, the U.S. Department of Justice and U.S. Department of Education issued an important guidance reminding educators that schoolhouse doors must be opened to all children residing in their districts. The guidance instructs school districts to avoid all enrollment practices that may chill, discourage, or exclude students from school based on their immigration status or the immigration status of their families.
In a sense, this should be old news: nearly thirty years ago, the Supreme Court in Plyler v. Doe held that all children have a constitutional right to a basic education regardless of their immigration status. But unfortunately, the reminder is badly needed today. Immigrant children's access to education is widely compromised by discriminatory enrollment practices that unnecessarily and unlawfully inquire into the immigration status of students and their families. For example, in 2010, the ACLU of Arizona identified several school districts requiring birth certificates and/or social security numbers. In 2010, the New York Civil Liberties Union found that at least 139 school districts in New York — or one in five districts — appeared to require families to provide proof of their child's immigration status. In 2008, the ACLU of New Jersey found that at least 139 school districts in New Jersey — again, one in five districts — required social security numbers or other information regarding immigration status.
Such policies drive immigrant children out of the classroom and into the shadows by fostering the fear that enrollment will bring them or their families to the attention of immigration authorities. This fear is especially acute in places like Arizona, where local law enforcement has engaged in the widespread and unlawful enforcement of the immigration laws. In addition, these enrollment policies are entirely unnecessary. Because states typically guarantee public education to all students who can prove age and residence, there is no need to ask about immigration status, as many other forms of documentation — such as medical records, utility bills, or leases — can meet registration requirements. Finally, these enrollment policies frequently require that school officials attempt to determine their students' immigration status — a determination that they are neither qualified nor authorized to make under federal law.
The federal guidance reaffirms that school districts may not ask about a child's citizenship or immigration status to establish residency within the district. Nor can districts prevent a child from enrolling in school because he or she has a foreign birth certificate or does not provide his or her social security number or race or ethnicity. Finally, the guidance instructs districts to assess their current policies and eliminate any possible chilling effects on enrollment.
In interviews published in 2008, several teachers who work near the U.S.-Mexico border explained why children should never be required to report their immigration status in order to register for school.
"I didn't come into this profession to worry about which kids are legal — are they from Mars or are they from Mexico or from Spain or wherever they are from," explained one teacher. "I came because I have a sincere interest in knowledge and I believe education is the gateway to helping you have a better life." Another teacher put it bluntly: "I am a teacher, not a Border Patrol Agent."
As school districts begin registration for this fall, the federal guidance is a welcome reminder that America is not a country that closes the schoolhouse door to children because their parents chose to bring them to United States. In America, all our children have a right to access a basic education. School is for everyone.