Undocumented Children Have the Right to Attend Public Schools

Under federal law, state and local educational agencies may not deny free public primary and secondary education to undocumented students.

And yet, there have been school enrollment practices that indicated discrimination against immigrant students. Requiring a birth certificate or social security number before enrollment tends to “chill” or discourage parents from sending their children to public elementary or high schools.

These practices have prompted officials of the U.S. Department of Justice and Department of Education to circulate a letter to key agencies to address these school procedures.

Guidelines in the letter dated May 6, 2011, emphasize that students may not be barred from enrolling in a public elementary or secondary school on the basis of perceived or actual citizenship or immigration status whether their own or that of their parents/guardian.

School districts may require proof of residency within district limits and proof of age to determine whether the student may attend a public school. On the other hand, as the U.S. Supreme Court has held back in 1982 in the Plyler v. Doe case, the undocumented or non-U.S. citizen status of the student (or a parent/ guardian) is irrelevant to his/her entitlement to an elementary and secondary public education.

To establish residence, the district may not require proof of U.S. citizenship or immigration status, but it can require telephone or utility bills and mortgages or lease documents.

To prove age, the district may require a copy of the child’s birth certificate, but it may not prevent the child from enrolling because he/she has a foreign birth certificate.

Students are not required by law to have a Social Security Numbers (SSN) to enroll in school. Since an undocumented child is not eligible for an SSN, asking for it may reveal the child’s immigration status which may in turn discourage him/her from attending school. In any case, an SSN is not relevant to residence and age which are both required.

Some school districts request an SSN to be used as a student identification number. However, the letter instructs that when so requesting the school must inform the student and the parent that providing the number is voluntary, and explain for what purpose the number will be used. If the student or parent does not have an SSN or chooses not to provide it for whatever reason, the school district may not deny the child enrollment.

In the letter, the department officials recognized that different states and districts may require different types of documentation, but cautioned them to apply rules uniformly and not based on the student’s race, color, national origin, immigration or citizenship status. In other words, all students must be treated equally and the school district may not select which students it will request certain documents from.

The guidelines recommend that when it comes to information other than residency, age and immunization history, which are generally required prior to enrollment, the school may choose to wait before asking for such information in order to create a more welcoming atmosphere. An example would be student demographic data (e.g., race, home language, country of origin, etc.) which are reported by schools pursuant to state and federal data collection laws.

In New York, according to an August 30, 2010 guidance issued by the Senior Deputy Commissioner for P-12 Education, residence is based on two factors: physical presence as an inhabitant and intent to reside in the district. As long as a student meets this two-part test, he/she is entitled to attend school in the district regardless of immigration status. School districts in New York may not require the student to provide an SSN for any purpose.

The letter underscored the federal government’s obligation to provide equal educational opportunities to children living within each district. It is hoped that with this reminder, school districts will be in compliance with federal civil rights laws and regulations and Supreme Court rulings prohibiting unlawful discrimination.

The Civil Rights Act of 1964 prohibits public schools and recipients of federal financial assistance from discriminating students on the basis of their race, color, or national origin.

The letter also quoted from the landmark case of Brown v. Board of Education (1954), noting that “it is doubtful that any child may be reasonably expected to succeed in life if he/she is denied the opportunity of an education.”