09 undocumented children

8/7/2019 09 Undocumented Children

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LegaL Issues for schooL DIstrIcts

reLateD to the eDucatIon of

unDocumenteD chILDren


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Pbi shs shd prvide eqitabe aess and ensre that a stdentshave the knwedge and skis t seed as ntribting members a rapidy

hanging, gba siety, regardess atrs sh as rae, gender, sexarientatin, ethni bakgrnd, Engish prieny, immigration status,

sienmi stats, r disabiity.

Artie IV, Setin 1. 2Beies & Piies the Natina Sh Bards Assiatin

[The Natina Edatin Assiatin] opposes any immigrationpolicy that denies human and/or civil rights or educational

opportunities to immigrants and their children regardless oftheir immigration status.

Natina Edatin Assiatin Restin I-21. Immigratin


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Idi | 05

LegaL Issues for schooL

DIstrIcts reLateD to theeDucatIon of unDocumenteD

chILDren

A joINT PuBlIcATIoN oThe Natina Sh Bards Assiatin (NSBA) and

The Natina Edatin Assiatin (NEA)

jhn W. BrkwskiPartner

Hgan & Hartsn, llcAuthor

lisa E. Srnen

Senir Sta AttrneyNatina Sh Bards Assiatin

Editor

This pbiatin des nt er ega advie. When aed with a qestinregarding the ega rights ndmented r reign stdents in sh,

sh distrits shd seek the advie their sh attrney.

ISBN 978-088364-311- 2

cpyright 2009 Natina Sh Bards Assiatin. A rights reserved.


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Participating Organizations

Amerian Assiatin Sh Administratrs

Amerian ederatin Teahers

Assiatin Teaher Edatrs

cni chie State Sh oers

cni Great city Shs

Edatin law Assiatin

Natina Assemby n Sh-Based Heath care

Natina Assiatin Eementary Sh Prinipas

Natina Assiatin Sh Nrses

Natina Assiatin Sh Psyhgists

Natina Assiatin Sendary Sh Prinipas

Natina Assiatin State Bards Edatin

Natina Assiatin State Diretrs Speia Edatin

Natina Assiatin r BiingaEdatin

Natina Parent Teaher Assiatin

Sh Sia Wrk Assiatin Ameria


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foreworD

The idea t pbish a gide n the ega isses srrnding ndmented stdents in

pbi shs had its genesis with a reqest r resres rm ne the Natina Sh

Bard Assiatins (NSBA) state sh bards assiatins. The idea gained mmentm as

sh attrneys inreasingy began t inqire abt the tpi, eading the NSBA cni

Sh Attrneys Bard Diretrs t enthsiastiay spprt reating this gide. The prettimatey ame t ritin when the Natina Edatin Assiatin (NEA) genersy agreed t

prvide nding r every pbi sh distrit in the ntry t reeive a hard py this int

wrk. We are peased that a nmber natina edatin assiatins have as signed n t the

pbiatin.

Irniay, the ak stattes, ase aw, and ther ega athrity disssing the ega rights

ndmented stdents in pbi shs emphasizes the need r writing this pbiatin,

and the dity in ding s. The 1982 u.S. Spreme crt ase Plyer v. Doe, whih hed that

ndmented stdents have a nstittina right t attend pbi eementary and sendarysh r ree, is the se edera ase ntempating the rights ndmented stdents in

sh, save a 1995 edera distrit rt ase rm cairnia, League o Latin American Citizens

v. Wilson. likewise, a ega pbiatin n the rights ndmented stdents d nt be

mpete witht disssing the ega rights B-2 visa bearers t attend sh. The rights

these tw grps stdents are intertwined, thgh B-2 visa bearers are atay prhibited rm

attending sh in the united States as a nditin their visas.

The reader may we nde that this gide avrs prviding ndmented stdents

an edatin in a very brad sense despite sant ega preedent. The nsin wd nt benwarranted. Hwever, the perspetive this dment is based n are nsideratin the

u.S. Spreme crts se ega pinin in this area. irst, Plyeritse, in bth reasning and rest,

spprts the respnses t qestins psed in this gide, even where Plyerdes nt direty answer

the qestin. Regardess whether Plylerwd be deided the same tday, it is sti gd aw, and

may we be the ny reevant preedent a rt d appy t deide an nresved ega isse

reated t ndmented stdents. Send, in tdays wrd bgs, eetrni sia netwrking,

and Internet media, it is a sae bet that mst ega isses regarding ndmented stdents wi be

tried in the rt pbi pinin ng bere they reah a rt aw. An expansive reading

Plyerd avid nt ny prtrated and sty itigatin, bt as pbi reatins raases thatdistrat rm the edatina missin the sh distrit. inay, shaping the perspetive this

dmentbeynd the etter and spirit Plyleris the endring beie bth NSBA and NEA

that a hidren in the united States shd be edated regardess immigratin stats.

This pbiatin d nt have been pssibe witht the ntribtins three key

individas: cni bard member jhn W. Brkwski wh did the researh and writing r this

pbiatin; NSBA Senir Sta Attrney lisa E. Srnen wh marshaed resres (bth pratia

and etherea) and did expert editing; and NEA Assistant Genera cnse Mihae Simpsn wh

brght t bear the nania resres NEA. We we eah a debt gratitde.

on beha NSBA, NEA, and r 16 partiipating natina edatina rganizatins, we

hpe y wi nd this gide se as y navigate the nhartered waters this timey tpi.

ranis M. Negrn, jr.,

NSBA Genera cnse and Assiate Exetive Diretr

Agst 2009


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Legal Issues or School Districts

Related to the Education o

Undocumented Children

IntroDuctIon

A gane at a ew newspaper headines reveas that the isse ndmented persns iving

in the united States is ntrversia. Shs distrits are aeted direty by this isse bease

ndmented hidren attend pbi eementary and sendary shs. In at, the u.S. Spreme

crt hed in Plyler v. Doe that ndmented hidren have a nstittina right t reeive a ree

pbi K-12 edatin.

This bket dissses 13 ega qestins mmny asked by sh bard members and

sh administratrs reated t ndmented stdents. unrtnatey, ew the qestins have

denitive answers. Plylerdirety addressed ny the narrw qestin whether ndmented

hidren are entited t reeive a ree pbi sh edatin. Plyleris the se u.S. Spremecrt ase deaing with the rights ndmented hidren in pbi shs. Mrever, wer

rt ases and state aws rarey address the qestins raised in this bket.

De t the imited ega preedent in this area, it is dit t predit with ertainty hw

rts wd deide a ase raising any the qestins disssed in this bket. Hwever, this

bket prvides tentative answers that are designed t hep sh distrits minimize

their ega risks in ight rrent aw. It assmes that bth rts and ptentia itigants

wd aept Plyleras the prinipe preedent in this area and wd read it t inde

its gia impiatin that sh distrits shd nt deter ndmented hidren rm

exerising their right t a pbi edatin. It assmes this r tw main reasns: irst, the

Plylerdeisin itse is brady prtetive the rights ndmented hidren t reeive

a K-12 edatin. Send, in mst instanes, making deisins based n an expansive rather than a

restritive interpretatin Plylerwd ess ikey rest in ega haenges.

Plyler v. Doe is generay the starting pae r addressing any ega qestin that direty r

indirety nerns the rights ndmented stdents in pbi shs. The rst qestin

dissses the u.S. Spreme crts ratinae inPlyler

and sggests an apprah that wer rtsikey wd se t appy Plylert dierent ata sitatins invving the rights ndmented

stdents in pbi shs. However, given that little statutory or case law addresses these issues and

existing state laws and court cases vary, when dealing with legal questions related to undocumented or

oreign students in schools, school districts are well advised to seek legal advice rom their school attorney.

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04 |

rIghts of unDocumenteD

stuDents to receIve an eDucatIon

1. Are public elementary and secondary schools required to educate

undocumented children?

Yes. The U.S. Supreme Court held that undocumented

children have a constitutional right to receive a free

public K-12 education.

In 1982, the Spreme crt hed in Plyler v. Doe1

that Texas viated the Eqa Prtetin case the

rteenth Amendment t the u.S. cnstittin by

denying ndmented sh-age hidren a ree pbi

edatin. Reasning that sh hidren are in this ntry

thrgh n at their wn, the crt nded that

they are entited t the same K-12 edatin that the state

prvides t hidren wh are itizens r ega residents.

The crt in Plylernted that edatin is a hids ny

path t beming a se-reiant and se-sient partiipant

in siety. A pbi sh edatin, the crt reasned,

inat[es] ndamenta vaes neessary t the maintenane a demrati pitia system

and prvides the basi ts by whih individas might ead enmiay prdtive ives.

Arding t the crt, denying hidren aess t a pbi sh edatin d dm them t

ive within a permanent aste ndmented resident aiens.

The crt in Plylernded that r the state t deny ndmented hidren aess t a

ree pbi edatin, the state mst demnstrate that ding s serves a sbstantia ga. The

crt reeted the wing gas the state ered: (1) prteting the state rm an infx

iega immigrants; (2) reieving the state the added, niqe sts edating ndmented

hidren, ths retaining resres r ega resident hidren; and (3) the aim that ndmented

hidren are ess ikey than ther hidren . . . t pt their edatin t prdtive sia r

pitia se within the State.

In smmary, ndmented hidrens right aess t pbi edatin is grnded inPlyler. When appying Plylert nanswered qestins abt the rights ndmented stdents

in sh, wer rts wi ikey address tw atrs: (1) hw entra the ativity in qestin is

t the hids edatin; and (2) whether the state an demnstrate that any sbstantia ga is


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| 05

served by denying the hid the experiene r aess. Severa rganizatins as interpret Plylert

reqire that the states atins d nt hi r hinder ndmented hidrens right aess t

an edatin.2

2. Does an undocumented childs right to an education include

secondary benefts o public education like participating in

extracurricular activities?

Probably. While the Supreme Court in Plylerdid not discuss whether undocumented

children have a right to participate in extracurricular activities, and no reported

lower court cases address this issue, courts would likely extend the Plylerrule to cover

extracurricular activities.

As disssed in the rst qestin, a rt aed with this qestin mst determine whether

the denia aess t a partiar ativity: (1) impedes the edatin ndmented stdents;

and (2) ampishes a sbstantia state ga.

The desriptin pbi edatin disssed in Plyleris qite brad, sggesting that mst,

i nt a, extrarriar ativities wd be vered nder Plyler. Whie aademi bs, sh

as siene and math bs, whih eary deiver edatina ntent, wd amst ertainy a

nder Plyler, nn-aademi bs ikey wd be inded in Plyler, as we. The team bidingand sia skis hned in atheti and sia rganizatins, r exampe, are exaty the srt

ndamenta vaes that Plyleridenties as imprtant.

The nsin that Plylerappies t why extrarriar experienes, sh as a sh

prm, may be ess ertain. Bt even here, Plylers appea t Brown v. Board o Educations

reqirement that edatin be avaiabe t a n eqa terms, makes

it nikey that a rt wd aw a sh distrit t deny

ndmented stdents aess t extrarriar ativities ike

prm.

As a rest, i extrarriar ativities are deemed t

be sienty edatina nder Plyler, ndmented

stdents d be prhibited rm partiipating in them

ny i the sh distrit d demnstrate a sbstantia

state interest is served by denying the ndmented

stdents aess. It is dit t imagine what sbstantia

state interest might be served by nt awing

ndmented stdents t partiipate in math b r

even prm.


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Sh distrits ths shd be wary denying ndmented hidren aess t any

extrarriar sh ativities. uness the ativity is nd nt t ntribte at a t the

edatina gas Plylerand denying partiipatin wd rther a sbstantia state ga, the

extrarriar ativity prbaby wd be prteted nder Plylers garantee aess t

edatin.

3. Are undocumented students permitted or required to receive

services that other students receive rom school districts and other

local government agencies?

Probably required. If faced with the question, a court would likely conclude that

services like free and reduced meals and educational assistance to manage a learning

disability are protected by Plylerbecause they are central to a students educationalexperience. Likewise, many of these services are available to undocumented students

by statute, regulations, or guidance.

Stdents may reeive a nmber sendary servies at sh sh as transprtatin t

and rm sh, heath are treatment rm the sh nrse r a sh-based heath enter, and

ree r reded-st meas. likewise, sme stdents reeive speiaized edatina prgrams t

manage earning disabiities, nseing, r ther psyhgia servies. As with extrarriar

ativities, determining whether a sh distrit r ther a gvernment ageny is reqired t

prvide sh servies t ndmented stdents reqires evaating hw entra the servies are

t the hids edatina experiene and whether a sbstantia state interest is served by denying

the benet. It wd be dit r a sh distrit t arge that any the abve servies are

nt entra t a stdents edatina experiene.

This appiatin Plylers reasning perhaps is mpiated by a edera statte, 8 u.S.c.

1611(a), whih states that an ndmented aien is nt eigibe r any edera pbi benet.3

The statte, hwever, then denes edera pbi benet as any retirement, weare, heath,

disabiity, pbi r assisted hsing, pstsendary edatin, d assistane, [r] nempymentbenet.4 Athgh 8 u.S.c. 1611 has been interpreted in ther ntexts as mpetey denying

benets t ndmented immigrants,5 it has nt yet been appied t pbi K-12 edatin, and

its expiit reerene t pstsendary edatin sggests that it ikey wd nt be. Therere,

even i any the abve sppementa servies are ederay nded, 8 u.S.c. 1611 is nt ikey a

bar t ndmented stdents reeiving them.

rthermre, a nmber ederay nded servies are made avaiabe t ndmented

stdents in sh by statte, regatins, r gidane. The u.S. Department Agritre, r

exampe, has stated that eigibe ndmented hidren have aess t ree and reded priemeas nder the Natina Sh lnh Prgram and the Sh Breakast Prgram.6 Simiary,

ndmented hidren with disabiities have a stattry right t servies nder the Individas

with Disabiities Edatin At7 (IDEA) r Setin 504 the Rehabiitatin At 19738 (Setin

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504). r a state t be eigibe r edera assistane nder IDEA Part B, it mst prvide assrane

that a ree apprpriate pbi edatin is avaiabe t a hidren with disabiities residing in the

state.9 likewise, nder Setin 504 eigibiity r stdents depends n age.10 inay, sme state

bards edatin have prvided gidane n this matter, estabishing expiit piies reqiring

distrits t prvide sppementa servies t ndmented stdents.11

In nsin, ndmented stdents are ikey entited aess t any servies entra t

reeiving an edatin. rther, ndmented stdents vered by IDEA, Setin 504, r simiar

egisatin shd reeive the benets garanteed them nder thse stattes.

aDmIttIng unDocumenteD anD

non-ImmIgrant stuDents to schooL

4. Can school districts ask questions about immigration status to

determine i a student is a resident o the district?

Probably not. Asking students questions about their immigration status when

determining residency may discourage undocumented students from enrolling inschool, arguably in violation ofPlyler.

States typiay reqire that t attend a partiar pbi sh distrit titin-ree a stdent

mst be a resident that distrit. Athgh the denitin a resident varies amng states, in

Martinez v. Bynum,12 the u.S. Spreme crt phed a Texas resideny reqirement t attend

pbi sh. Sh distrits say reqire sme pr that a stdent is in at a resident

the distrit bere enring the stdent. Smetimes sh distrits have asked qestins dring

the enrment press that impiate immigratin stats, sh as whether stdents an prvide a

sia serity ard r whether stdents are ndmented.13

Plyleritse des nt direty address the qestin sh distrit inqiries regarding

stdent immigratin stats. Assming that Plylerdes indeed prevent

distrit atins that hi r dissade ndmented stdents rm

reeiving an edatin, it seems airy ear that distrits qestining

stdents abt immigratin stats wd nt be permitted nder

Plyler. Ater a, sh qestining ikey wd dissade ndmented

hidren rm enring in sh. T date, n edera rt has direty

red n the isse whether sh distrits an ask stdents abt

their immigratin stats.

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In League o Latin American Citizens v. Wilson,14 a edera distrit rt invaidated setin seven

cairnia Prpsitin 187, whih reqired sh distrits t, amng ther things, nt admit

ndmented stdents, veriy the ega stats a stdents, and reprt ndmented stdents

t the Immigratin and Natraizatin Servie, nw Immigratin and cstms Enrement. The

rt invaidated setin seven in its entirety, iting Plyler v. Does hding that states are prhibitedrm exding ndmented hidren rm pbi shs. Whether this ring stands r the

prpsitin that a sh distrit d nt qestin its stdents abt their immigratin stats

r whether it ny stands r the prpsitin that qestining wed by denia aess viates

Plyleris nt entirey ear. Ths, athgh this ring sggests that merey investigating a stdents

immigratin stats d be a viatin Plyler, it des nt sette the qestin. What is ear

rm bth Plyerand Wilson, thgh, is that any inrmatin abt a stdents ndmented stats

annt be sed t deny enrment t that stdent.

As a pratia matter, it makes itte sense t gather inrmatin abt immigratin stats

whih ais t indiate resideny in the distrit. Sme states diret

sh distrits t aept in-distrit tiity bis and/r eases as

evidene that the stdent resides in the distrit, rather than

dments ike sia serity ards that indiate immigratin stats

bt shed n ight n resideny.15

State aws and gidane rm state edatin agenies

have generay endrsed the view that shs shd nt askqestins reated t immigratin stats. r instane, the

Iwa Department Edatin states, Shs may nt

qestin immigrant stdents as t their ega stats and

may nt demand their dmentatin.16 likewise, a 2009

Maryand State Bard Edatin pinin prhibits a a

sh systems rerd ard rm inding a reqest r

inrmatin that wd tend t spprt the prpsitin that

the stdent is awy present within the united States.

17

In states where sh distrits are permitted r

reqired t ask stdents r inrmatin whih may

indiate immigratin stats dring the enrment press

r therwise, sh distrits shd make ear t

parents the reasn why the distrit is reqesting the

inrmatin, that the distrit is nt interested in knwing

a stdents immigratin stats, and that the distrit wi

nt disriminate against stdents in any way based nimmigratin stats.18

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In sm, sh distrits shd avid asking qestins abt stdents immigratin stats

when enring stdents r in any ther irmstanes.

5. Does a school district have to educate an undocumented student

who is not living with a parent or legal guardian?

Probably. School districts should be cautious about denying enrollment to

undocumented children living in the district who are unable to establish that their

parents/guardians are residents of the school district if they otherwise meet residency

requirements. Denying enrollment may violate Plylerand may be prohibited by the

McKinney-Vento Act if the undocumented students are homeless.

In sme states, stdents mst ive with their parents/gardians in rder t qaiy as residents

the distrit. one prpse this reqirement is t ensre that stdents d nt mve t a

partiar distrit sey t btain an edatin. Hwever, sme ndmented hidren d nt

ive with their parents and may nt be abe t estabish an aternative ega gardian.

Many states that reqire stdents t ive with parents/gardians r resideny prpses

inde an aternative r stdents nt iving with parents/gardians. r exampe, in Pennsyvania,

when a resident any sh distrit keeps in his hme a hid sh age, nt his wn,

spprting the hid gratis as i it were his wn, sh hid sha be entited t a ree sh

privieges[,] s ng as the hid has nt mved t the distrit sey t attend sh.19

Simiary,in New jersey, a stdent an ive with a nn-gardian i his r her gardian es a swrn statement

that he r she is nt apabe spprting r prviding are r the stdent de t amiy r

enmi hardship and that the stdent is nt residing with the ther persn sey r the

prpse reeiving a ree pbi edatin.20

In Horton v. Marshall Public Schools,21 the Eighth cirit hed that exding a minr hid rm

sh ness the hid has a parent r gardian iving in the distrit viates the hids eqa

prtetin and de press rights. Reying n Plyler, the rt nded the sh distrit ered

n sbstantia ga t stiy singing t minr hidren wh

d nt have a parent r gardian iving in the distrit and ttay

depriv[ing them] an edatin. State stattes and state and

a piies that deny ndmented stdents aess t pbi

edatin ness they are iving with a parent/gardian that d nt

estabish aternatives r estabishing resideny d, i haenged

ike the piy in Horton, be nd nnstittina. Sme rts

nsidering haenges t a iving with a parent/gardian resideny

re have wed22

Horton and thers have nt.23

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10 |

inay, in ertain irmstanes, the MKinney-Vent At, whih prvides r the edatin

hmeess hidren, might appy t ndmented hidren iving away rm their parents/ega

gardians.24 MKinney-Vent reqires that sh distrits aw hmeess hidren t enr in

pbi shs, even i they are nabe t prve resideny r gardianship. Hmeess hidren,

arding t MKinney-Vent, inde hidren and yths wh are sharing the hsing therpersns de t ss hsing, enmi hardship, r a simiar reasn.25 Ths, i stdents an

estabish that they are being ared r by a amiy member r riendr are iving n their wn

bease their parents are nabe t take are them, they are vered by MKinney-Vent. Sh

stdents are assred nt ny enrment in the a sh distrit, regardess their parents/

gardians resideny r their ndmented stats, bt as the ther prtetins arded by the

At.

In nsin, in the Eighth cirit, states that d nt have a iving with a parent/gardian

resideny re,26 r states with exeptins t a iving with a parent/gardian resideny re

appiabe t ndmented stdents, ndmented stdents wh therwise meet resideny

reqirements shd be admitted t sh regardess whether they ive with a parent/gardian.

In states with a iving with a parent/gardian resideny re witht exeptins appiabe t

ndmented stdents, sh distrits shd be atis abt denying ndmented

stdents enrmentpartiary i the resideny re has nt been haenged and phed by a

rtbease sh a step d viate Plyler. likewise, regardess states iving with a parent/

gardian resideny re, ndmented hidren wh are nt iving with parents/gardians may be

hmeess nder the MKinney-Vent At and entited t enrment in the distrit in whih they

are rrenty iving.

6. Must, may, or should a school district report an undocumented

student to Immigration and Customs Enorcement?

No federal law requires school districts to report undocumented students to

immigration authorities and arguably school districts are prohibited from reporting

them by Plyler.

As disssed abve in qestin r, in League o Latin American Citizens v. Wilson27the distrit

rt invaidated setin seven cairnia Prpsitin 187, whih reqired sh distrits

t, amng ther things, reprt ndmented stdents t the Immigratin and Natraizatin

Servie (INS), nw Immigratin and cstms Enrement (IcE). The rt nd that bease

Plylerprhibits states rm exding ndmented hidren rm pbi sh, setin seven

in its entirety nfited with and was preempted by edera aw. Athgh the rt nd this

mandatry reprting reqirementnfited with Plyler, it did nt disss the permissibiity

vntary reprting ndmented stdents n a ase-by-ase basis.

Hwever, any vntary reprting ndmented stdents d be nsidered an arnt

t Plylersmandate that ndmented hidren have aess t edatin. I sh athrities


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| 11

reprt an ndmented stdent t IcE and IcE sbseqenty

deprts r remves the stdent rm sh, the sh

distrits atins d be viewed as having denied that

stdent aess t sh. In essene, reprting a stdent t

IcE is ne the strngest steps a sh distrit an taketward denying edatin t a stdent.

Even i reprting the stdent des nt atay ead

t a denia aess t sh, reprting ndmented

stdents wd ndbtedy have a hiing eet n the

right t aess edatin. Pratiay speaking, it may drive

parents ndmented stdents t p their hidren t

sh indenitey.28 Whie this is a ess setted interpretatin Plyler, it

sggests that sh distrits shd be wary vntariy reprting ndmented stdents t

immigratin athrities.

As disssed in mre detai in qestin 10, reprting ndmented stdents t IcE d

viate the amiy Edatina Rights and Privay At29 i the distrit disses inrmatin in the

stdents edatin rerdswitht nsent.

In nsin, sh distrits are nt reqired t reprt ndmented stdents t IcE.

Mrever, sh distrits shd nt vntariy reprt ndmented stdents t IcE r therimmigratin athrities bease sh atins may nstitte a denia aess t edatin nder

Plyler.

7. Can school districts ask to see visa documents i districts do not

then deny enrollment to undocumented students?

Even when asking to see visa documents is permissible under state law, school

districts should be cautious because doing so could chill undocumented student

enrollment, arguably in violation ofPlyler.

Bease visa-bearing stdents are ega visitrs t the u.S., Plylerdes nt direty appy

t them. Nevertheess, the prinipes Plylersti impat sh distrit interatins with visa-

bearing stdents bease many advay grps see reqests r visa inrmatin as aing nder

the range atins that might hi ndmented hidrens aess t edatin nder Plyler.

Stdents an stdy in the u.S. nder a nmber visa ategries inding: -1,30 j-1,31 M-1,32

and M-3.33 B-2 visas, issed t individas visiting r peasre,34 d nt aw their bearers t

enr in sh r a rse stdy.35 Nevertheess, hidren with B-2 visas have been knwn t

enr in sh.


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cntrversies have arisen when sh distrits have asked t see stdent visas t identiy

B-2 visa bearers. In 2006, the Iinis State Bard Edatin vted t revke $3.5 miin in

state aid t the Emwd Park sh distrit ater the distrit resed t admit tw stdents with

B visas.36 The distrit timatey agreed nt t ask stdents abt whether they have visas r deny

them enrment based n visa stats.37

State aw, rt ases, and state edatin ageny piies, hwever, vary widey n whether

sh distrits an ask stdents t see their visas. Ths, bere a sh distrit an determine

the mst apprpriate piy, it shd rst identiy any state aws, regatins, r state edatin

ageny piies that are appiabe. r predminant views are set rth by state aws, regatins,

and administrative ageny piies addressing this isse.

irst, sme states prevent sh ias rm inqiring abt

stdents visa stats entirey.38 In these states, sh distrits shd

simpy mpy with state reqirements, as ding s wi meet the

reqirements state aw and is nikey t rn a Plyler.

Send, sme states prevent sh ias rm inqiring abt

stdents visa stats, bt have speia reqirements r -1 visas. r

exampe, a Pennsyvania statte eary rbids shs rm inqiring

abt stdent immigratin stats bt as ntes that this des nt

reieve a stdent wh has btained an -1 visa rm the stdentsbigatin t pay titin nder edera aw.39 The statte prvides

n gidane n whether r hw a sh distrit ght t attempt t

determine i a stdent is meeting this bigatin r nt. Hwever, -1 visas are ny issed t

reign stdents whm sh distrits have ertied meet the visas reqirements, inding paying

the distrit titin.40 S it seems that a distrit wd nt need t see a stdents -1 visa t knw

whether titin is wed r has been paid.41

A third set states have n ear statte, regatins, r piy, in whih ase sh distrits

shd be espeiay atis abt asking t see visas. Iinis had n ear state reqirement nvisa inqiries when the Emwd Park sh distrit asked t see visas and resed enrment

based n visa stats, r instane.

inay, sme states aw and even reqire sh distrits t qestin stdents abt visa

stats. r exampe, the Iwa Department Edatin states, Nn-immigrant stdents nt ny

may be asked r their visas, bt mst be asked by sh ias r their visas.42 Hwever, ask-

ing abt visa stats d be prbemati nder a brad interpretatin Plyler, as any qestin

regarding visa stats d argaby dissade ndmented stdents rm enring in sh.

Sh distrits an beme rstrated when they sspet nn-immigrant B-2 visa bearers

are attempting t attend sh in the u.S. despite the at that their visas prhibit attendane

in pbi sh. It des nt appear that any sh distrit has been hed iabe r aiing t

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identiy a stdent in viatin his r her visa and admitting the stdent t sh. In ntrast,

severa sh distrits have been sbeted t r threatened with ega atin ater they sght

t identiy r at pn the visa stats their stdents. rther, an argment an be made that

visa-reated qestins d hi ndmented stdent enrment, making them sspet nder

Plyler. Therere, even when permitted by state aw, sh distrits shd be very atis abtasking t see visa dments.

8. Can school districts reuse to educate a child who volunteers that

he or she has a B-2 visa?

Even when denying enrollment to B-2 visa bearers is permissible under state law,

school districts should be cautious because doing so could chill undocumented

student enrollment, arguably in violation ofPlyler.

Stdents wh atay have B-2 visas are, in prinipe, nn-immigrants. Therere, Plyleris even

ess appiabe in instanes in whih stdents vnteer that they have B-2 visas than in instanes

in whih the distrit is asking stdents whether they have visas. In ther wrds, an argment

an be made that a sh distrit whih trned away a stdent with a B-2 visaassming that

the stdent vnteered his r her visa statsdid nt viate edera aw. Nevertheess, an

argment as an be made that denying enrment t stdents with imprper visas wi hi

ndmented stdents rm attempting t enr. In additin, a B-2 visa-bearing stdent wh

has been denied enrment may aim Plylerhas been viated bease despite the imitatins the visa, he r she intends t stay beynd the ength the visa as ndmented and he r she

therwise meets the distrits resideny reqirements.

As with making inqiries abt visa stats, state aw, rt ases, and state edatin ageny

piies vary widey n whether sh distrits an deny enrment t B-2 visa-bearing stdents.

Ths, bere a sh distrit an determine the mst apprpriate piy r itse, it shd rst

identiy any state aws, regatins, r state ageny piies that are appiabe. There is itte

nirmity in hw states apprah this isse. In genera, states dea with the isse enring B-2

visa-bearing stdents direty, indirety, r nt at a.

The Texas Edatin Ageny reqires Texas sh distrits t enr B-visa bearing stdents

regardess the at that enring in sh viates the stdents visa.43 A cairnia ase, n the

ther hand, aws sh distrits t deny admissin t B-2 visa bearers.44 Gidane rm ther

states ike Virginia45 and New Yrk46 aws B-2 visa bearers t attend sh i they are residents

the distrit. Stattes in states ike Pennsyvania d nt reer speiay t B-2 visa bearers bt

reqire that sh distrits neither ask abt nr deny admissin based n immigratin stats.47

inay, sme states, ike Iinis bere the Emwd Park inident, have n ear piy n grantingr denying enrment t stdents wh vnteer that they have a B-2 visa.

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When reqired by state aw, shs shd admit stdents with B-2 visas wh vnteer

their visa stats, as ding s wi mpy with state aw and ikey is mpatibe with Plyler. Even

i state aw aws r des nt prhibit denia enrment t B-2 visa bearers, sh distrits

shd be atis abt ding s in ight Plylernerns that ndmented stdents wi be

disraged rm enrment r that B visa-bearing stdents wi aim that they intend t verstaytheir visa and immigrate.

In nsin, edera aw pts the ns n stdents t mpy with the reqirements

their visas. Sh distrits seeking t enre visa res by denying admissin t sh may pen

themseves p t itigatin.

9. Must, may, or should a school district report to Immigration and

Customs Enorcement a student who attempts to attend school inviolation o his or her visa?

School districts are not required to report to ICE B-2 visa bearers who attempt to

attend public school. To avoid a chilling claim under Plyler, school districts should

refrain from reporting them.

As disssed in qestins seven and eight, in thery Plylerdes nt appy t nn-immigrant

visa bearers. Hwever, i a sh distrit as IcE t reprt a stdent wh tries t attend sh

in viatin his r her visa, parents ndmented stdents may beme wary ntiningt send their hidren t sh, ths hiing ndmented hidrens aess t an edatin.

Appiabe state aws, regatins, r state ageny piies shd be nsidered bere

reprting a stdent wh tries t attend sh in viatin his r her B-2 visa.

In thse states, ike Texas,48 where B-2 visa bearers are expiity awed t attend sh, r

in states ike Pennsyvania,49 where admissin may nt be denied t any hid based n immigratin

stats, it is ikey a viatin state aw t reprt a B-2 visa bearer r viating his r her visa

by attempting t attend sh. Reprting sh a stdent wd be tantamnt t denying thestdent admissin t sh.

In states where it is near whether B-2 visa bearers mst be enred, states ike New Yrk50

where B-2 visa bearers ny have t be enred i they meet resideny reqirements, and states

ike cairnia where B-2 visa bearers may be denied enrment, de t Plylernerns, sh

distrits are we-advised nt t reprt B-2 visa bearers t IcE, even i distrits trn sh stdents

away rm sh.

In nsin, sh distrits have n bigatin t reprt viatins B-2 visas t

immigratin athrities, and in sme states sh distrits are ikey prhibited rm ding s

by state aw. Regardess, sh distrits shd be aware that reprting B-2 visa viatins may

viate Plyler.

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unDocumenteD stuDents anD

ImmIgratIon anD customs

enforcement InvestIgatIons

10. Does a school district have to provide Immigration and Customs

Enorcement inormation contained in student records about

undocumented students?

The Family Educational Rights and Privacy Act (FERPA)51 generally prohibits school

districts from providing third parties such as ICE information about studentscontained in student records.

Mre speiay, ERPA prhibits sh distrits rm dissing persnay identiabe

inrmatin in a stdents edatin rerds t tside agenies witht parenta nsent r a

sbpena. A stdents edatin rerds indes rerds, es, dments and ther materias

whih . . . ntain inrmatin direty reated t a stdent and are maintained by an edatina

ageny r instittin.52 I a sh has rerded and maintained inrmatin abt a stdent

being ndmentedwhih is nt aways the asethis inrmatin is part a stdents

edatin rerds.

ERPA aws r the reease inrmatin rm a stdents rerd t mpy with a rt

rder r sbpena,53 typiay with parenta ntiatin, bt nt nsent.54 Hwever, sme

sbpenas may prhibit the distrit rm dissing the existene r ntents the sbpena t

parents r stdents.55 T navigate these nanes, sme state edatin agenies expiity diret

sh distrits t nst with their attrneys t review any sbpenas.56

Sh distrits may as disse diretry inrmatin witht nsent. Diretry

inrmatin is inrmatin that wd nt generay be nsidered harm r an invasin

privay, and indes the stdents pae birth.57 Distrits mst te a parents whih ategries

inrmatin the distrit has designated as diretry inrmatin

and aw them a reasnabe amnt time t reqest that the

distrit nt disse any r a diretry inrmatin abt their

hid.58 Sh distrits may nt disse diretry inrmatin

reating t stdents wh have pted t sh dissre.

Reeasing inrmatin rm stdent rerds in viatin ERPA an be enmiay and pitiay sty. The city

Manassas and Manassas city Pbi Shs reenty setted a awsit

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r $775,000, in whih it was aeged that a sh empyee reeased inrmatin rm stdent

rerds witht nsent abt stdents parents empyment and hmewnership t ity ias

wh were aegedy targeting Hispani amiies r hsing viatins.59

Sh distrits an take severa measres t prepare r ptentia reqests r inrmatinrm immigratin agents. irst, sh distrits shd expiity dene what inrmatin is

designated as diretry inrmatin nder ERPA. Partiary in states where diretry data

mst be reeased nder state pbi rerds aws, sh distrits shd nsider exding pae

birth rm diretry data t avid having t revea this inrmatin t IcE. Distrits shd

as veriy that parents have nt pted t reeasing diretry inrmatin bere ing any

sh reqests. In additin, sh distrits shd nsider prhibiting empyees rm inding

immigratin stats in stdents edatin rerds. inay, i IcE makes a reqest r data rm

stdent rerds, sh distrits shd insist n a sbpena bere reeasing any inrmatin60 and

shd nst with their sh attrney when aed with a sbpena reqiring them t prde

inrmatin in a stdents rerds.

11. Does a school district have to allow Immigration and Customs

Enorcement agents to interview students at school?

In some circumstances, a school district may have to allow ICE agents to interview

students at school, but ICEs policy is to generally avoid enforcement actions on

school grounds.

The Immigratin and Natraizatin At (INA) expiity aws immigratin agents t

qestin a persn beieved t be an aien abt his r her right t remain in the united States.61

Whie the INA appears t be enreabe n sh grnds, in 1993 the Immigratin and

Natraizatin Servie (INS)62 stated its piy is t attempt t avid apprehensin persns and

t tighty ntr investigative peratins n the premises shs . . . .63 The piy aws ny

spei INS empyees t apprve, in writing, peratins at shs.64

It is very ikey that the abve piy is the rest Murillo v. Musegades,65deided in 1992.

In this ase Brder Patr agents repeatedy stpped, qestined, detained, risked, searhed,

and arrested witht ega ase E Pas sh distrit stdents and empyees based n their

Hispani appearane. Arding t the rt, [q]estining with

reasnabe sspiin aienage is permissibe s ng as the INS agent

des nt restrain the individa, and the individa reasnaby beieves

he r she is ree t wak away. In this ase the rt nted the INS

agents did nt have reasnabe sspiin either aienage r iega

aienage t stiy stpping r qestining any the stdents rempyees. The rt issed a preiminary inntin preventing INS

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rm qestining individas ness INS atay has reasnabe sspiin an individa is in the u.S.

iegay r is gity mmitting a rime ver whih INS has risditin.

A 2004 settement with smewhat simiar ats istrates pssibe imitatins t IcEs

athrity t interview stdents n amps. In Gonzalezex rel. Doe v. Albuquerque Public Schools,66

tw piemen assigned t wrk at the Abqerqe pbi shs aegedy stpped and detained

tw bys n amps.67 Ater ne the bys aied t prvide identiatin, the pie aed

Brder Patr, wh then seized ne the bys brther rm ass.68 Paintis, reying n Plyler,

aimed that pie interrgatin stdents abt their immigratin stats intereres with the

stdents aess t edatin; a stdent annt be edated in a a sh whie he is being

qestined r ater he has been deprted.69 The ase setted; s, the rt never deided

whether the qestining in this ase viated Plyler. Nevertheess, the paintis argment highights

ne way stdents may be abe t se Plylert stp sh distrits rm awing immigratin

athrity interviews.

Additinay, ne aspet the settement agreement in Gonzalez sggests that sh distrits

may sessy deny immigratin ias reqest t interview stdents. Abqerqes new

piy70 states that sh persnne are t deny any reqest rm immigratin ias t enter

a sh t searh r inrmatin r seize stdents. Instead, sh administratrs and awyers

mst determine whether t grant aess t immigratin ias. It is ntabe that the Gonzalez

settement prbaby restrits IcE mre than the reie in Murillo restrited the INS. The new

piy that emerged rm Gonzalez may aw sh distrits t prevent immigratin-reated in-terviews, whie Murillo merey reqired that the INS have reasnabe sspiin bere qestining

individas abt their aienage.

Sh distrit ias mst wak a ne ine in baaning the rights aw enrement

ers t arry t their dties with stdents rights t have aess t an edatin witht

sbstantia intererene. When aed with a reqest by an IcE agent t interview a stdent, sh

empyees shd seek gidane rm their sperirs in the sh distrit and rm the sh

distrits attrney.

When deiding whether t grant IcE aess t interview stdents, sh distrit piies

and state aw reqirements regarding aw enrement interviewing stdents n amps shd

be reviewed. likewise, at minimm, apprpriate sh distrit ias shd ask t see the

IcE agents redentias, ask the agent why he r she wants t interview a stdent t make sre

that reasn is within the spe IcEs athrity, and ask the agent what evidene reasnabe

sspiin he r she has t stiy the interview. The IcE agent shd as be asked t expain

why he r she is nt wing IcEs genera piy nt interviewing stdents in sh and

whether the interview has been apprved in writing by the apprpriate persn at IcE. I a shdistrit is timatey nabe t stp a aw investigatin, sh persnne may remind the stdent

being interviewed that he r she is ree t rese t answer the IcE agents qestins. inay, the

parents stdents shd as be ntied, ness the IcE agent has speiay instrted the

distrit nt t d s.


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12. What behaviors does Immigration and Customs Enorcement

consider harboring in relation to school employees assisting

undocumented students and parents?

During an ICE enforcement action, school employees should not assist parents in

remaining in the U.S. illegally, but may offer care-giving assistance to undocumented

students whose parents have been detained by ICE.

edera aw prhibits any persn rm intentinay neaing, harbring, r shieding an

iega aien rm detetin, where the aiens iega immigratin stats is knwn.71 It is as against

edera aw t nspire, aid, r abet sh ats.72 Mrever, it is a rime t harbr an aien wh

entered the u.S. egay, bt whse ntined presene in the u.S. is nw naw.73 Harbring

indes any ndt tending sbstantiay t aiitate an aiens remaining in the u.S. iegay.74

The statte extends the prhibitin against harbring t any pae, whih is intended t

be brady insive.75 Ths, shs d nstitte

atins where persns may be nd t be harbring

iega aiens. An argment d be made that shs

may be tehniay harbring iega aiens by taking

stdy ndmented hidren dring the sh

day. Hwever, IcE has never brght an atin against

a sh distrit r harbring iega aiens and is

nikey t d s. Instead,simpy taking stdy

ndmented stdents and edating them as

within Plylersnstittina prtetins.

Sh empyees shd be atis abt

assisting parents in remaining in the u.S. iegay,

partiary dring an IcE enrement atin. r

exampe, i a sh empyee as parents t warnthem abt an impending enrement atin at

their wrkpae, sh atins ikey a tside

Plylersprtetins bease they g beynd simpy

prviding an edatin r a stdents. Nevertheess, ering t ndmented stdents whse

parents have been detained in an IcE enrement atin are-giving assistane, sh as a ride

t a reatives hme r pae t stay nti a parent is abe t pik p the hid, is nt nsidered

harbring.

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13. What are a school districts responsibilities to assist students whose

parents have been detained during an Immigration and Customs

Enorcement action?76

To avoid claims of negligent supervision, school districts should take adequate steps to

ensure the safety of children whose parents are detained.

Severa highy pbiized IcE wrksite enrement atins prvide essns r hw shs

an mre eetivey are r stdents whse parents are detained in a raid.77 Bt these inidents

ai t ariy the ega respnsibiities aing shs when sh raids r.78

Sh distrits may be iabe r negigent spervisin i they d nt take adeqate steps

t ensre the saety hidren whse parents are detained.79 In New Yrk, r exampe, rts

have nted hw the dty are impsed n a sh distrit generay ends when it reinqishes

stdy, bt that dty are ntines when the stdent is reeased int a ptentiay

hazards sitatin.80

When a wrksite enrement atin rs, sh distrits either wi be ntated

by IcE r wi nd t abt it thrgh ther hannes. Reeiving knwedge a raid gives a

distrit reasn t beieve that sme its stdents rdinary aregivers may be nder detentin

and nabe t take stdy a stdent.81 Knwedge that a aregiver is navaiabe may reate

rther respnsibiity r the distrit t are r stdents in rder t avid reeasing stdents inta ptentiay hazards sitatin.

T apprpriatey are r stdents and t prevent aims negigent spervisin, shs

shd take measres t ensre the saety every hid aeted by an IcE enrement atin.

In Grand Isand, Nebraska, r exampe, the sh distrit ntated a hidren whse parents

wrked at the raid site.82 Eementary shs reeived spei diretives t ensre that every

stdent be reeased ny t reatives r a persn that the hid d identiy. Eah sh

prinipa prepared his r her teahers, sia wrkers, and gidane nsers t wrk thrgh

the night t ensre stdents saety. And athgh they were nt needed, ertain shs weredesignated as emergeny sheters r hidren.83

Shs in chaparra, New Mexi, tk reative measres t ensre their stdents saety

ater a wrkpae raid n the rst day sh. Bease the sh did nt yet have emergeny

ntat inrmatin, sh sta wed bses and wathed hidren disembark t ensre that

they were nt et ane.84

Wrkpae raids and ther IcE enrement atins d nt appear t reate any new ega

respnsibiities r sh distrits. Instead, sh distrits ikey we an rdinary dty are tensre the saety their stdents. Hwever, t avid negigent spervisin aims, distrits shd

try t make sre stdents have adeqate spervisin and are bere reeasing them rm sh

stdy. S ng as the distrit takes sh steps, the distrit and its empyees shd be abe t

avid iabiity even in the event an nreseen aident.

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enDnotes

1 457 u.S. 202 (1982).

2 The Mexian Amerian lega Deense and Edatin nd (MAlDE), amng ther grps, has

nded that Plylerreqires that sh distrits nt engage in any praties that hi r hinder

the right aess t sh. . . . See letter rm MAlDE t Dr. Sandra Eis, Sperintendent,

Nrth chiag cmmnity unit Shs (Ag. 9, 2007), available at http://awpressrs.typepad.m/

immigratin/es/nrth_hiag_sh_distrit.pd. Sme state edatin agenies have as adpted

this stane. The New jersey Department Edatin, r exampe, prhibits its sh distrits rm

engaging in any praties that hi r hinder the right aess t pbi shs. New jersey

Department Edatin, changes t INS Regatins create N New obigatins r Shs, http://www.state.n.s/edatin/news/2002/1021imm_a.htm (ast visited May 13, 2009). likewise, the Iinis

State Bard Edatin prhibits any atin that might have a hiing eet n the right aess

t shs . . . . Iinis State Bard Edatin, Stdents Rights t Eqa Edatin, http://www.isbe.

net/biinga/htms/imaqs.htm (ast visited May 13, 2009). Athgh the wrd hi des nt appear in

Plyler, the crts invatin Brown v. Board o Educations reqirement edatin avaiabe t a n

eqa terms, d be read t impy sh a nsideratin. Plyler, 457 u.S. at 223 (iting Brown v. Board o

Education,347 u.S. 483, 493 (1954)).

3 8 u.S.c. 1611(a) (2006).

4 8 u.S.c. 1611()(1)(B) (2006).

5 See, e.g., Lewis v. Thompson, 252 .3d 567 (2d cir. 2001) (hding that ndmented immigrant

mthers d nt reeive ederay-spnsred prenata are, despite ndings that sh are wd

sbstantiay benet the inants heath, prvide a nsiderabe savings ver nding pstnata emergeny

are, and rede the inant mrtaity rate in Amerias inner ities).

6 U.S. Departmentof agricUltUre, eligibility manUalfor School mealS18 (jan. 2008), available at http://

www.ns.sda.gv/nd/gvernane/nties/iegs/EigibiityMana.pd.

7 20 u.S.c. 1400 et seq. (2003).

8 29 u.S.c. 794 (2008).

9 20 u.S.c. 1412(a)(1)(A) (emphasis added).

10 34 c..R. 104.3()(2).

11 See, e.g., Iinis State Bard Edatin, Stdents Rights t Eqa Edatin, http://www.isbe.net/biinga/htms/imaqs.htm (ast visited May 13, 2009) (Shs are reqired t prvide ndmented

immigrant stdents the same benets and servies made avaiabe t ther stdents. Therere, when

determining eigibiity r ree r reded nh and/r breakast prgrams nder the Sh lnh At,

d nt reet appiatins whih d nt have the parents Sia Serity nmber.).

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12 461 u.S. 321 (1983) (permitting a sh distrit t deny a stdent titin-ree pbi sh

edatin i the stdent ives apart rm a parent, gardian, r ther persn having aw ntr him

nder an rder a rt and is present in the distrit r the primary prpse attending the pbi

ree shs).

13 See letter rm Edatin law center t Dr. linda Rhen, Diretr, Pennsyvania Department

Edatin (Ag. 8, 2008) (iting qestinabe enrment piies in Pennsyvania sh distrits

inding reqiring stdents t prvide sia serity nmbers).

14 908 . Spp. 755, 774 (c.D. ca. 1995).

15 See, e.g., n.J. aDmin. coDe 6A:22-3.4(a) (2008); cal. eDUc. coDe 48204.6 (2009).

16 See, e.g., Iwa Department Edatin, Education o Immigrant Children, School leaDer UpDate (jne

2008), available at http://www.iwa.gv/edate/index.php?ptin=m_ntent&task=view&id=854&Itemid=1496; 22 pa. coDe 11.11(d) (2009) (A sh may nt inqire regarding the immigratin

stats a stdent as part the admissin press.). Simiary, in New jersey, sh distrits are

. . . prhibited rm reqiring stdents t disse r dment their immigratin stats, [r] making

inqiries stdents r parents that may expse their ndmented stats . . . . New jersey

Department Edatin, changes t INS Regatins create N New obigatins r Shs, http://

www.state.n.s/edatin/news/2002/1021imm_a.htm (ast visited May 13, 2009).

17 Board o Frederick County Commissioners v. Frederick County Board o Education , Maryand State Bard

Edatin opinin N. 09-11 (Mar. 24, 2009), available at http://www.mnsmd.rg/es/state-bard-

pinins/rederik%20cnty%2009-11.pd.

18 Nrth carina stattes aw prinipas t ask r a py a birth ertiate r any hid enred

in sh r the rst time t make sre the hid is d engh t attend kindergarten. n.c. gen Stat.

115c-364(). likewise, a Kansas statte reqires sh bards t reqire pr a hids identity

the rst time a hid is enred in sh t ate missing and/r abdted hidren. Identity may be

prved by a ertied py a birth ertiate r any dmentary evidene whih a sh bard

deems t be satisatry pr identity. Kan. Stat. ann. 72-53, 106.

19 24 pa. conS. Stat. 13-1302(a) (2008).

20 N.J. aDmin. coDe 6A:22-3.2(a)(1)(i) (2008).

21 769 .2d 1323 (8th cir. 1985) (invaidating an Arkansas statte that denied enrment t minr

hidren wh did nt have a parent r gardian iving in the distrit). The rt distingished Horton

rm Martinez v. Bynum bease Martinez denied aess ny t stdents iving away rm their parents/

gardians sey t attend ree pbi sh.

22 edera distrit rts in Pennsyvania and Texas have awed admissin t stdents n grnds

simiar t thse ited in Horton. See, e.g., Nancy M. v. Scanlon, 666 . Spp. 723 (E.D Pa. 1987) (striking

n eqa prtetin grnds a aw awing sh distrits t deny speia edatin servies t nn-

resident, dependent hidren iving in ster hmes in the distrit); Steven M. v. Gilhool, 700 . Spp. 261

(E.D. Pa. 1988) (invaidating n eqa prtetins grnds a statte awing shs t harge titin

t nn-resident stdents wh ive in hidrens hmes in the distrit); Major v. Nederland Indep. Sch. Dist.,

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72 . Spp. 994 (E.D. Tex. 1991) (viding distrits piy denying admissin t a stdent wh reated

de t amiy prbems despite the distrits nerns with iega immigratin and white fight); Byrd v.

Livingston Indep. Sch. Dist., 674 . Spp. 225 (E.D. Tex. 1987) (awing admissin stdents iving with their

nn-gardian grandparents t sh in the distrit).

23 The Send cirit did nt w Horton and instead phed a distrits resa t edate a nn-

resident hid iving in a grp hme. See Catlin v. Sobol, 93 .3d 1112 (2d cir. 1996). A edera distrit

rt in Gergia simiary reeted the Horton anaysis, denying the painti s mtin r a preiminary

inntin against a sh distrit that wd nt admit her three niees wh were iving with her

bease she did nt have ega stdy ver them. Poston v. DeKalb County Sch. Dist., N. 100-2358, sip

p. (N.D. Ga. 2000). Pre-Horton, a Nrth carina edera distrit rt phed a dmiie reqirement

simiar t Gergias in Poston reasning that sh distrits have egitimate interests in ensring that

stdents a distrit reside with their ega gardians. See Harris v. Hall, 572 . Spp. 1054 (E.D.N.c.

1983).

24 42 u.S.c. 11434a (2006).

25 42 u.S.c. 11434a(2)(B)(i) (2006). MKinney-Vent as expiity ntes that a migratry hida

hid wh is r whse parent r spse is, a migratry agritra wrkerwh ts any the

stattes ther reqirements wd be vered. 20 u.S.c. 6399(2) (2003).

26 State ex rel. School District v. Thayer, 41 N.W. 1014 (Wis. 1889) (stdent sent t ive with his

grandmther bease his asthma was aggravated by the hrses kept n his parents arm was eigibe r

titin-ree edatin in his grandmthers sh distrit).

27 908 . Spp. 755, 774 (c.D. ca. 1995).

28 See, e.g., Nihas Riardi, Students Deportation Roils New Mexico Town, l.a. timeS, eb. 18, 2008

(nting hw there was a sdden drp in attendane ater a sh serity er reprted an

18 year-d stdent t immigratin athrities in Rswe, New Mexi); Mihee Garia, School

Forms Immigration-Related Questions Stir Concern,WaSh. poSt, Sept. 10, 2007, at A07 (desribing hw

sh registratin by Sth Asian hidren inreased ater the sh bard stated that immigratin

inrmatin wd nt be sed t hek stdents statses); Denise Smith Amse, Immigration Raid

a Crisis School Hadnt Planned For, cincinnati enqUirer, Sept. 15, 2007 (nting hw apprximatey 20

hidren were absent the day ater a nearby atry raid, athgh the prinipa said it was near hw

many absenes were de t the raid).

29 20 u.S.c. 1232g (2003).

30 INA 101(a)(15)()(i) and 8 cR 214.2(). reign natinas wh enter the u.S. t prse a

mpete rse stdy reqenty d s nder -1 visas. I sh a stdent intends t stdy at a pbi

sendary sh, the stdent mst demnstrate that he r she has reimbrsed the a sh distrit

r the per apita st prviding that edatin bere he r she an btain the visa. See id. 214.2()(1)(i)(D).

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31 Id. 214.2(). reign natinas, their spses, and their minr hidren may enter the u.S. nder j-1

visas nder an exhange visitr prgram apprved by the Department State. j-1 visa hders may

appy t extend their stay beynd the initia admissin perid, and the ampanying spse and hidren

may nt be granted extensins stay r nger than the prinipa visa hder.

32 Id. 214.2(m). Stdents may enter the u.S. nder an M-1 visa t stdy in an estabished vatina

r ther nn-aademi prgram. M-1 stdents may nt enter the u.S. t enr in angage asses.

33 Id. 214.2. Stdents enred in a rse stdy in an apprved sh ated within 75

mies the u.S. brder may stdy nder an M-3 visa. Knwn as brder mmter stdents, these

individas mst maintain their ata residene in their ntry natinaity.

34 8 c..R. 214.1(a)(1)(i) (2009).

35 8 c..R. 214.2(b)(7) (2008). (An aien wh is admitted as, r hanges stats t, a B-1 r B-2nnimmigrant . . . viates the nditins his r her B-1 r B-2 stats i the aien enrs in a rse

stdy. Sh an aien wh desires t enr in a rse stdy mst either btain an -1 r M-1

nnimmigrant visa rm a nsar er abrad and seek readmissin t the united States r appy r

a hange stats.).

36 ceen Mastny & Diane Rad, State Slaps District That Barred Teen: Elmwood Park Schools Risk Millions

in Immigration Case,chicago tribUne, eb 24, 2006, at 1.

37 Andrew Trtter, District Will Stop Querying Students on Immigration, eDUcation WeeK, Mar. 8, 2006.

38 See, e.g., letter rm j lynn DeMary, Sperintendent Pbi Instrtin, cmmnweath

Virginia, t Divisin Sperintendents (Nv. 2, 2001), available at http://www.de.virginia.gv/VDoE/

sptsmems/2001/in159.htm. (Sh divisins are nt permitted t inqire int a prspetive

stdents itizenship r visa stats in rder t enr that stdent in sh.).

39 22 pa. coDe 11.11(d) (2009). See alson.J. aDmin. coDe 6A:22-3.4(d)(2) (2008) (A distrit bard

edatin sha nt reqire r reqest, as a nditin enrment in sh . . . [d]mentatin

r inrmatin reating t itizenship r immigratin/visa stats, exept as set rth in n.J. aDmin. coDe

6A:22-3.3(b) whih states: Distrits permitting the attendane -1 stdents may adpt piiesand predres reqiring advane payment titin, r entry int binding agreements r payment

titin, bere the distrit wi prvide the reqested I-20 rm.).

40 u.S. Department State, Stdent Visas, http://trave.state.gv/visa/temp/types/types_1268.

htm#pbi (ast visited May, 13, 2009) (Bere an -1 visa r a pbi sh an be issed, the stdent

mst shw that the pbi sh in the u.S. has been reimbrsed r the , nsbsidized per apita

st the edatin as aated by the sh.).

41 Sh distrits have t keep rerds ntaining ertain inrmatin and dments reating t

-1 and ther reign stdents as part the Stdent and Exhange Visitr Inrmatin System (SEVIS).

8 c..R. 214.3(g). Hwever, it des nt appear sh distrits need t see a stdents visa t rerd

any the reqired inrmatin. Pratiay speaking, partiary where state aw aws it, asking t

see an -1 visa is nt ikey t reate ntrversy ionlysh visa bearers are asked t shw their visas.

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Shs shd knw ahead time whih stdents have -1 visas bease sh visa bearers mst be

aepted r admissin by the sh bere they an appy r a visa. As the Embrk Park inident

istrates, sh distrits get int trbe when they askallstdents t shw their visas, i they have

ne, t erret t B-2 visa bearers.

42 Iwa Department Edatin, Education o Immigrant Children, School leaDer UpDate (jne 2008),

available at http://www.iwa.gv/edate/index.php?ptin=m_ntent&task=view&id=854&Item

id=1496. Iwas gidane ges n t say: This is bease shs are reqired by edera aw t harge

titin thse wh hd an -1 visa. Shs are as reqired t t an I-20 rm bere a stdent

with an -1 visa an be enred with the sh. The Iwa gidane seems nerned abt seeing the

visas -1 stdents ny. Hwever, the gidane des nt expiity imit reqiring distrits t ask t

see ny -1 visas. As disssed previsy, a sh distrit des nt need t see an -1 stdents visa

t knw whether titin is wed r has been paid. The Iwa gidane des nt indiate hw a sh

distrit is sppsed t determine whether a hid is ndmented verss a nn-immigrant visa-bearing

stdent. Sh distrits shd knw ahead time whih stdents have -1 visas bt wi have n way

knwing whether ther stdents are ndmented, bear ther visas, r are u.S. itizens.

43 Texas Edatin Ageny, AQs Reating T Visa Inrmatin (Sept. 6, 2007), http://ritter.tea.state.

tx.s/rrim/te/esaq.htm (ast visited May 13, 2009) (A reign stdent annt attend Texas

pbi shs n a -time basis with a trist visa as this wd be in viatin his/her visa stats.

Hwever, the sh distrit annt deny the stdent enrment n the basis his/her visa stats.).

44 Anselmo v. Glendale Unifed School District, 124 ca. App. 3d 520 (1981) (reasning that B visas are

ny avaiabe t residents ther ntries; therere, B visa bearers are nt residents the shdistrit).

45 letter rm the Hnrabe Wiiam c. Mims, Member, Senate Virginia (Apr. 14, 1999), available at

http://www.ag.state.va.s/opinins/1999pns/apr992.pd (itatins mitted). (As with ega r iega

aiens, athgh visa hders may be reqired, as thers are reqired, t estabish that they are bna

de residents a risditin bere qaiying r ree pbi shing in that risditin, their visa

stats des nt presmptivey exde them r their hidren. Ths, s ng as a stdent is a bna de

resident and i his residene was nt ntrived r the primary prpse sering his attendane at

[a] pitia sbdivisins pbi sh system, he is entited t titin-ree edatin there,

regardess his itizenship r his B, c, r D visa stats.). The etter ntines: Ardingy, it is my pinin that a

a sh bard is nt permitted t inqire int a stdent appiants itizenship r his B, c, r D visa

stats, nr may it reqire dmentatin t veriy sh stats, r the prpse asertaining whether

sh appiant is a resident the sh distrit.

46 Appeal o Raquel Plata, New Yrk State Edatin Department Deisin the cmmissiner N.

14,555 (Mar. 29, 2001), available at http://www.nse.nysed.gv/Deisins/vme40/d14555.htm ([A]

sh distrit may nt impse an irrebtabe presmptin that the hder a nnimmigrant visa

annt be a resident the sh distrit. Instead, the hids stats shd be determined in ardanewith the traditina tw-part test r resideny.).

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47 22 pa coDe 11.11(d) (2009) (A hids right t be admitted t sh may nt be nditined n

the hids immigratin stats. A sh may nt inqire regarding the immigratin stats a stdent as

part the admissin press.).

48 Texas Edatin Ageny, AQs Reating T Visa Inrmatin (Sept. 6, 2007), http://ritter.tea.state.

tx.s/rrim/te/esaq.htm (ast visited May 13, 2009).

49 22 pa coDe 11.11(d) (2009).

50 Appeal o Raquel Plata, New Yrk State Edatin Department Deisin the cmmissiner N.

14,555 (Mar. 29, 2001), available at http://www.nse.nysed.gv/Deisins/vme40/d14555.htm.

51 20 u.S.c. 1232g (2003).

52 20 u.S.c. 1232g(a)(4)(A)(i)-(ii) (2003).

53 20 u.S.c. 1232g(b)(1)(j)(i)-(ii)(2003). Ntaby, ERPA aws bt des nt reqire mpiane with

a sbpena that reqests inrmatin rm stdent rerds. cmpiane with sbpenas is reqired by

ther aws.

54 20 u.S.c. 1232g(b)(2)(B)(2003).

55 20 u.S.c. 1232g(b)(1)(j)(i)-(ii)(2003).

56 See, e.g., Iwa Department Edatin, Education o Immigrant Children, School leaDer UpDate (jne

2008), available at http://www.iwa.gv/edate/index.php?ptin=m_ntent&task=view&id=854&Ite

mid=1496.

57 34 c..R. 99.3 (2008). Ntaby, ERPA aws bt des nt reqire the reease diretry

inrmatin. State pbi rerds aws may reqire the reease inrmatin nt prhibited rm

dissre by ERPA inding diretry inrmatin.

58 20 u.S.c. 1232g(a)(5)(A)-(B) (2003).

59 Brigid Shte, Student Privacy Spotlighted in Va.,WaShington poSt, Sept. 27, 2008, at B01, available athttp://www.washingtnpst.m/wp-dyn/ntent/artie/2008/09/26/AR2008092603641. htm?sid=

ST2008092700733&s_ps.

60 Insisting n a sbpena may nt be pssibe i IcE is reqesting diretry data and the states pbi

rerds aw reqires the reease diretry data ness parents have pted t. See Iwa Department

Edatin, Education o Immigrant Children, School leaDer UpDate (jne 2008), available at http://www.

iwa.gv/edate/index.php?ptin=m_ntent&task=view&id=854&Itemid=1496.

61 8 u.S.c. 1357(a)(1) (2005).

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62 In a ikeihd IcE ntines t appy INSs piy t shs. See Mary Ann Zehr, With Immigrants,

Districts Balance Saety, Legalities, eDUcation WeeK, Sept. 12, 2007 (qting the wing IcE piy:

Arresting gitives at shs, hspitas, r paes wrship is strngy disraged, ness the aien

pses an immediate threat t natina serity r the mmnity.).

63 Memrandm rm james A. Pe, Ating Assiate cmmissiner, n Enrement Ativities atShs, Paes Wrship, r at nera r other Reigis ceremnies, t Distrit Diretrs and

chie Patr Agents (May 17, 1993), available at http://www.gbaawenters.m/pds/25357.pd.

64 Id.

65 Murillo v. Musegades, 809 . Spp. 487 (W.D. Tex. 1992).

66 N. civ. 05-580jB/WPl, 2006 Wl 1305032 (D.N.M. jan. 17, 2006).

67 Mary Ann Zehr, With Immigrants, Districts Balance Saety, Legalities, eDUcation WeeK, Sept. 12, 2007.

68 See id.

69 Gonzalezex rel. Doe v. Albuquerque Public Schools, N. civ. 05-580jB/WPl, 2006 Wl 1305032, at *3

(D.N.M. jan. 17, 2006).

70 Mary Ann Zehr, With Immigrants, Districts Balance Saety, Legalities, eDUcation WeeK, Sept. 12, 2007.

71 8 u.S.c. 1324(a)(1)(A)(iii)(2005) (hding any persn riminay iabe r knwing r in rekess

disregard the at that an aien has me t, entered, r remains in the united States in viatin aw, neas, harbrs, r shieds rm detetin, r attempts t nea, harbr, r shied rm

detetin, sh aien in any pae, inding any biding r any means transprtatin).

72 8 u.S.c. 1324(a)(1)(A)(v)(I)-(II) (2005).

73 U.S. v. One 1984 Chevrolet Trans Star, 623 . Spp. 625, 628 (D. cnn. 1985).

74 U.S. v. Lopez, 521 .2d 437, 440-41 (2d cir. 1975) (Athgh r task wd have been ightened i

cngress had expressy dened the wrd harbr, we are persaded by the angage and bakgrnd

the revisin the statte that the term was intended t enmpass ndt tending sbstantiay taiitate an aiens remaining in the united States iegay, prvided, rse, the persn harged has

knwedge the aiens naw stats.).

75 U.S. v. Cantu, 557 .2d 1173, 1180 (5th cir. 1977) (hding that the in any pae reqirement the

statte is meant t be brady insive).

76 IcE has reenty annned it wi s n employers rather than employees dring wrksite

enrements atins. Hwever, IcE wi ntine t arrest and press r remva any iega wrkers

wh are nd in the rse these wrksite enrement atins . . . . at Sheet, Immigratins &

cstms Enrement, Wrksite Enrement overview (Apr. 30, 2009), available at http://www.ie.gv/

pi/news/atsheets/wrksite.htm.

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77 Reent raids inde Grand Isand, Nebraska, Marshatwn, Iwa, and New Bedrd, Massahsetts.

The variety isses that shs might ae inde the wing: (1) wh an r wi take stdy

hidren; (2) wh wi spervise hidren bere aregivers an be reahed; (3) what predres shd

be taken in the event that parents annt be reahed; (4) hw an shs wer trany eves in the

wake a raid; and (5) what shd hidren be td abt the raid.

78 r exampe, in New Bedrd, Massahsetts, sme hidren were stranded at sh ater 327

empyees were detained at a atry. IcE aimed that thse empyees that remained in stdy were

given the ptin etting their hidren stay with a gardian r ptting them in state are. Ray Henry,

Children Stranded Ater Immigration Raid,WaSh. poSt, Mar. 7, 2007, available at http://www.miraaitin.rg/

press/mira-in-the-news/dzens--hidren-in-state-stdy-ater-immigratin-raid.

79 See, e.g., Chavez v. Tolleson Elementary School Dist., 595 P.2d 1017, 1020 (Ariz. ct. App. 1979)

(regnizing that a sh distrit and assrm teaher we a dty rdinary are tward stdents

dring the time a stdent is nder their harge and that dty is breahed when ndt reates an

nreasnabe risk harm t stdent); Ernest v. Red Creek Cent. Sch. Dist., 717 N.E.2d 690 (N.Y. App. Div.

1999) (asserting that a sh distrits dty are tward a stdent ntines when the stdent is

reeased int a ptentiay hazards sitatin); Herzel ex rel. Joplin v. Palmyra Sch. Dist., 733 N.W.2d 578,

584 (Neb. ct. App. 2007) (nting hw Nebraska rts treat atins against sh distrits r ak

spervisin as standard negigene aims); Rodriguez v. Seattle Sch. Dist. No. 1, 401 P.2d 326, 327 (Wash.

1966) (nding that sh distrits an be iabe r inries sstained as a rest negigent spervisin

r aire t spervise).

80 Ernest, 717 N.E.2d at 693.

81 IcE nsiders reeasing parents wh are se aretakers minr hidren wh are detained

in wrksite enrement atins. See Department Hmeand Serity, Gideines r Identiying

Hmanitarian cnerns Amng Administrative Arrestees When cndting Wrksite Enrement

operatins, available at http://www.ni.rg/immsempymnt/wkpe_enrmnt/ie-hm-gideines.pd.

82 Miriam jrdan, At Public Schools, Immigration Raids Require New Drill,Wall St. J., jne 18, 2007, at 1.

83 Id.

84 Denise Smith Ams, Immigration Raid a Crisis School Hadnt Planned For, cincinnati enqUirer, Sept. 15,

2007.

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acknowLeDgements

Thanks t the wing NSBA cni Sh Attrney members r ntribting t thispbiatin: cen casey, MKenna c osbrn, Sarah Danie, Ashey risn, Mary Gannn, jse

Gnzaes, Dan Harper, Meanie Grey Keeney, Eizabeth Eynn-Kkrda, rrest jak lane, Amy

levine, car Marhant, Anne Mcy Mrphy, jak Mrphy, chesea osn, jstin Petrara, Aisn

Brwn Shaer, Kara Shtz, and Rn Wenkart.

Thanks t the wing immigratin attrneys r ntribting t this pbiatin: Amy Erbaher-

Andersn, lisa Dran, and lan Hynh.

Thanks t the wing 2008 Hgan & Hartsn smmer assiates r ntribting t thispbiatin: Nathanie Geiher and Phi Trt.

Thanks t the wing NSBA lega Interns r ntribting t this pbiatin: Margaret

Rthenberg-Marsha and Nie Vitae.


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