Immigration documents and admissions

On Board Online • September 6, 2010

Editor’s Note: The New York Civil Liberties Union recently wrote to 139 school districts in New York State to ask them to drop requirements for immigration documents in their admissions process, and on Aug. 30 the State Education Department issued a memo clarifying what documents school districts may require in the admissions process. The article below summarizes the relevant laws – and gray areas – for school districts.

NYSSBA has no position on what types of inquiries school district should make in the admissions process.  

By the New York State Association of School Attorneys

The rules that determine immigrant children’s access to public education in the United States send a mixed message. Although the U.S. Supreme Court’s sweeping decision in Plyler vs. Doe permits foreign nationals without documentation to attend public school, the USA PATRIOT Act prohibits certain in-status visa holders (tourists and business visitors) from enrolling in school. The same federal law prevents certain academic visa holders (F-1 and M-1) from enrolling in school unless the school participates in a program called the Student and Exchange Visitor Information System (SEVIS).

Local school officials may find it difficult to understand which categories of foreign nationals are eligible to enroll in a public school and which are not, as well as what types of inquiry can be made at registration.

The general rule is that children are eligible to enroll in a public school district if they meet the residency requirements of that district. That includes all out-of-status foreign nationals as well as U.S. citizens, U.S. permanent residents, asylees, refugees and many foreign nationals holding lawful temporary status.

New guidance from SED

On August 30, the State Education Department (SED) published on its website a document entitled “Student Registration Guidance.” Addressing acceptable proof of age, residency, immunization, homeless students, and data collection, the guidance states that districts should not ask about student immigration status at registration.

But the guidance notes that several state and federal laws require SED or school districts to collect certain student demographic data. For instance, in order to receive funding under certain federal Title III programs, states and school districts must collect and report data on “immigrant children and youth” served. The guidance suggests that such information be gathered after a student has been enrolled.

The memo does not address the federal mandate against registration of holders of tourists and business visas, and only alludes to the existence of F and M student visa issues. It says related questions should be handled by a listed federal agency.

Nor does the guidance address how a district should proceed if staff learn, after the fact, that the student’s enrollment appears to be a violation of federal immigration law. 

Plyer and the USA PATRIOT Act

The right of undocumented foreign nationals to enroll in their local school district was affirmed in 1982, when the U.S. Supreme Court invalidated a Texas statute that denied educational funding to districts that admitted illegal entrants. Emphasizing the innocence of such children relative to their lack of legal status and the special importance of education in American society, the High Court affirmed in Plyler vs. Doe that a state’s withholding of education funds as a tool to prevent the enrollment of illegal entrants violated the Fourteenth Amendment’s Equal Protection Clause. Plyler refers to “illegal entrants,” but it is likely that the holding applies to all students without status, whether they entered illegally, or entered legally and then overstayed their period of admission.

While Plyler guarantees access to public education for out-of-status visa holders, children of holders of certain in-status temporary visas may not attend school. This is the result of the USA PATRIOT Act, which Congress passed in response to the pattern of activity of the 9/11 conspirators.

According to guidance from the Department of Homeland Security, issued both through the U.S. Citizenship and Immigration Services and U.S. Immigration and Customs Enforcement, these classes of student are ineligible to enroll:

•   B-1/B-2 visa holders. B-1 and B-2 visa holders (tourists and business visitors) violate the terms of their B visa status if they enroll in public school.
  
  
•   F-1 student visa holders. The F-1 student visa is commonly used to attend a U.S. college. F-1 status cannot be granted to attend public elementary schools or publicly funded adult education programs. F-1 status can be granted to attend a public U.S. high school for one academic year, but only if the student has paid the full, unsubsidized per capita cost of the education and the school has enrolled in the SEVIS visa-tracking program. However, the minor child of an F-1 student is eligible for derivative F-2 status and may attend elementary or secondary school without changing to another status, provided they establish district residence. Similarly, M-1 vocational students may only attend SEVIS-registered schools that offer a course of study compatible with their status.

But if holders of these temporary visas fall out of status, as occurs when a person stays past the end date of their visa, their children would be eligible to attend public schools in accordance with Plyler. In other words, this particular group of foreign nationals are not eligible to attend school if they are properly documented, but become eligible to attend school if they become undocumented (when their visas expire). As illogical as that may sound, that is the state of the law. And Congress, unfortunately, has shown little interest in addressing this policy clash.

Based upon post-9/11 security concerns, the U.S. government created SEVIS (the Student and Exchange Visitor Information System) to track academic visa holders. This online system contains information on the physical presence and academic status of every F-1 (academic student), M-1 (vocational student), and J-1 (exchange student) in the country.

School participation in SEVIS is voluntary. Joining SEVIS involves a rigorous application process with site inspection and training of a DSO (designated school official). The DSO is charged with responsibility for monitoring, tracking, reporting, and recordkeeping of nonimmigrant foreign students. Participating schools are responsible for ensuring international students are maintaining lawful nonimmigrant status and reporting through SEVIS when they are not.

U.S. Immigration and Customs Enforcement has published a chart indicating which temporary visa holders may and may not attend public school: www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study.pdf 

Asking about immigration status

Plyler does not forbid asking about immigration status. The gist of the decision – that no barrier to education be erected against the undocumented – suggests that a status inquiry should be conducted in a way that does not chill a prospective student’s access.

To assuage concerns among parents that public school enrollment could lead to deportation, districts could adopt a no-reporting policy.

With the exception of SEVIS participation, the author is not aware of any statute or regulation that requires a district to report information on the lack of immigration status of a student or family member to a government agency. This includes state reporting requirements stemming from the federal No Child Left Behind Act, as none of the mandatory “immigration” reporting would disclose type of immigration status or the absence of status. The mandatory disclosures include the date the student entered the U.S., the number of consecutive years that student has attended a U.S. school, country of origin, whether the student is a “migrant,” and place of birth. None of these involve whether the student (or his or her family) has documented or undocumented status.

But a school board may be concerned that merely asking questions in this subject area could have a chilling effect on the enrollment of undocumented children. If the board adopts a “no reporting” policy, the policy should explicitly indicate that a child’s status or absence of status would not be reported to the government by the district. The district would meet its responsibility under NCLB, but the data requested under NCLB does not reveal anything about a student’s status in the U.S.

If a district asks about immigration status, the questions should be phrased to obtain legitimate information, such as that required under NCLB. Other legitimate reasons for inquiry are: (1) to determine whether the individual is in a nonimmigrant category that requires the school to be a SEVIS participant in order to accept the student (e.g., F-1 or M-1), (2) to avoid enrollment of a student whose B visa status disqualifies them from enrollment, and (3) to help make a residency determination. 

Immigration status and district residency

Although their decisions predate the 2002 PATRIOT Act restrictions on enrollment of visitor visa holders, the New York State Commissioner of Education and courts in New York State have held that B visa holders might be able to establish residence within a school district.

The commissioner has supported the proposition that the district may inquire into a student’s immigration status to the extent it is relevant to the residency determination.

The child’s status should be determined in accordance with the traditional test for residency, as long as his or her immigration status does not foreclose their ability to enroll.

It may be impossible for students to establish residence if they are living in the district for the sole purpose of school attendance. However, in Appeal of Ramirez, the commissioner ruled, “Where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence.” 

Conclusion

Twenty years after Plyler opened public schools to the undocumented, the PATRIOT Act restricted access. Congress expected school districts to check the visa status of foreign nationals as part of the enrollment application process. While a new SED guidance states districts should not ask about immigration status in the admissions process, the law does not preclude a district from doing so as long as this does not create a chilling effect on enrollment of eligible out-of-status foreign nationals. It appears that the New York Civil Liberties Union has taken the position that merely asking for such information creates an illegal chilling effect on enrollment. Contact NYSSBA or your school attorney regarding your district’s options.

Members of the New York State Association of School Attorneys represent school boards and school districts. Russell W. Roberts, of counsel at Harris Beach, PLLC wrote this article.