School Districts and the Education of Undocumented Children

West Chester education lawyers advise school districts on the complex laws of immigration.According to Education Week, one out of five children enrolled in public school in the United States speaks a language other than English in the home. This number is expected to double by 2030.

Despite the growing numbers of non-English speaking students across the country, many parents still spend their days in fear, wondering if their undocumented children will return home or be detained by Immigration and Customs Enforcement (ICE) in the classroom.

In July of 2018, the American Civil Liberties Union (ACLU) sued 12 New Jersey School Districts for requiring social security numbers or proof of valid immigration status as a requirement to enrollment. Although many of the districts claimed the allegations were false, the lawsuits bring up an important debate: Does the law imply that public school districts are not authorized to report undocumented students?

Although some argue that schools have a responsibility to report undocumented children, federal law has several stops in place to prohibit this. Administrators and other Pennsylvania school officials that have questions on this sensitive topic may be left in the dark on what actions could expose the district to a lawsuit. School officials with questions about student immigrant status should seek the guidance of an experienced education law attorney.

Should Schools Report Undocumented Children?

Although we have all heard stories of children being detained in and around schools, undocumented children are usually safe in their public school. In fact, ICE maintains a policy that immigration enforcement of any kind will not be conducted in an educational setting, on a school bus, or during an educational activity.

Does ICE’s policy imply that a school is a “safe zone” for undocumented children? The answer is, not necessarily. Schools, in some cases, may have the responsibility to report a student’s status to ICE; but doing so could be a violation of the Family Educational Rights and Privacy Act.

Additionally, the federal government prohibits school districts from:

  • Denying any child access to an education
  • Discriminating on the basis of race, color, or nation of origin
  • Requiring paperwork to establish residency
  • Questioning families about citizenship status
  • Disclosing information found in student records

What Type of Information Can A School Collect?

School districts are not permitted to require any information that may identify a student’s immigration status for enrollment purposes. Pennsylvania Code §11.11(d) prohibits public schools from inquiring about a child’s immigration status through questioning or documentation requirements.

Additionally, educators and other school personnel that may have knowledge of a student’s undocumented status should refrain from disclosing this information to others.

If ICE surveillance or enforcement is discovered within an educational setting, school staff should direct the agents to the superintendent.

The following steps must be taken before allowing the agents to continue:

  • Verify the agent’s identity
  • Request to see a judicial warrant
  • If no warrant is presented, contact an education law attorney
  • Lodge a complaint with ICE
  • Inform the student’s parents or guardians immediately

For more information on the complex laws surrounding the education of undocumented children, or for assistance with any matter related to education law, call MacMain Leinhauser at 484-318-7106 or contact us online.