By Attorney Farhad Sethna © 2014
On May 8, 2014, the US Department of Justice and the US Department of Education issued a joint instruction letter to public schools across the nation. The letter reminds school districts that schools may not bar admitting students who do not appear to be US citizens. Further, the letter reminds districts that they cannot require specific documentation from students which would be impossible for undocumented students to provide, such as proof of US citizenship status, social security numbers, or permanent residency.
The letter is instructional in that it supports the right of every child to have a meaningful public education in the United States.
Quoting from Plyler v.Doe, 457, U.S. 202 (1982), [a United States Supreme Court case], a school cannot deny “innocent children” access to a public education. Such a denial “imposes a lifetime hardship on a discreet class of children not accounting for their disabling status…by denying these children a basic education we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our nation.”
The letter goes on to quote from another Supreme Court case, Brown v. Board of Education, 347 U.S. 483 (1954), “it is doubtful that any child may reasonably be expected to succeed in life if he (or she) is denied the opportunity of an education.”
A school district may require students or their parents to provide proof of residency within the district (Martinez v. Bynum, 461 U.S. 321 (1983)).
However, a homeless child who does not have documents required for school enrollment such as proof of residency or birth certificates must be permitted to attend school even if the child or the child’s parents or guardian is unable to produce the records normally required for enrollment.
Therefore, while a school district can ask for proof of residency of a student to prove that he or she actually resides in the district and is therefore entitled to public school services from that district, the school cannot insist on any other forms of identification especially those which undocumented students cannot provide. This joint communication from the U.S. Department of Education and the U.S. Department of Justice is especially helpful to undocumented children who may be able to enroll in public schools and thereby qualify for DACA (“Deferred Action for Childhood Arrivals”) status. For information about DACA, please see other articles on this website.
Any violation of these rules is a violation of established federal law and regulations. If school districts do not comply, and set up unlawful hurdles to the enrollment of children in the public schools, such exclusionary policies can be the basis for a complaint against that particular public school. For further details, consult a qualified attorney, as well as the U.S. Department of Education website and the U.S. Department of Justice website on this particular topic.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.