Legal Ease/School Law Notes: Federal immigration policy creates challenges for districts
By John W. Borkowski
04/09 -- With well over a million children of undocumented immigrants in public schools throughout the nation and immigrant populations growing in communities large and small, Washington’s failure to produce a clear and coherent immigration policy has created numerous challenges for school boards and administrators.
Immigrant children are entitled to attend public elementary and secondary schools regardless of whether they or their parents are documented. But because some parents might be at risk of deportation or other legal action, districts must balance a number of potentially competing considerations.
Moreover, because the issues are so controversial and have such high stakes for students and families, school leaders should reflect on these issues before a crisis arises.
In 1982, the U.S. Supreme Court held in Plyler v. Doe that Texas violated the 14th Amendment’s Equal Protection Clause by denying undocumented school-age children a free public education. Reasoning that such children are in this country through no fault of their own, the court concluded that they were entitled to the same education provided children who are citizens or legal residents.
The Supreme Court recognized that public education is not merely a “benefit” provided by state governments, but rather that it has “a fundamental role in maintaining the fabric of our society.”
As a result, school boards need to educate undocumented children with the same zeal as other students while paying attention to several other issues, including:
• What information is gathered from immigrant students?
• Who should have access to student information?
• Who should be allowed on school grounds?
• In the worst cases, what should a district do if students’ parents are arrested in an immigration raid?
In many ways, the first issue is the most straightforward, but nevertheless it has caused problems for a number of districts. The ruling in Plyler means school districts must not take actions that have the effect of deterring undocumented children from attending public schools. Neither children nor their parents, for example, may be required to show documentation of their immigration status. A district may demand proof of residency, but it cannot ask for a form of proof that would reveal a child’s immigration status.
Another key issue for school boards is the need to balance their responsibility to protect the privacy of student records with their duties to share information with state or federal authorities.
If federal immigration authorities or a state agency request student information, the district should make sure that the proper procedures have been followed before anything is released. An on-site request from an Immigration and Naturalization Service agent, for example, in most cases, should be denied or referred to the central office, while a valid federal subpoena must be obeyed.
Similarly, a district with a significant immigrant population should have clear policies concerning who will be allowed on school grounds and in what circumstances.
Cooperating with law enforcement does not mean you capitulate to demands that might disrupt the educational process or unnecessarily traumatize children. At a minimum, requests for access to school grounds should be funneled through proper channels, and the district’s legal counsel should be consulted.
Finally, a growing number of communities have faced immigration raids that have separated students from their parents. School boards should consider in advance what legal duties and risks a raid might present and how to best serve their educational and moral obligations to students.
Eventually, we hope, the federal government will address its inconsistent immigration policies and enforcement procedures. In the meantime, school boards might want to review relevant policies, provide training on immigration-related issues to appropriate personnel, and direct administrators to develop an action plan.
John W. Borkowski is a partner in the Hogan & Hartson law firm in Washington, D.C., and is a member of the board of NSBA’s Council of School Attorneys.
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