“Dear Colleague” Letter Reminds That School Districts Cannot Deny Students Based on Citizenship or Immigration Status

By June 2, 2014 News No Comments

On May 8, 2014, the U.S. Department of Justice and the U.S. Department of Education issued a joint “Dear Colleague” letter reminding local education agencies that they are required to provide all children residing in their district equal access to public education at the elementary and secondary level, regardless of the actual or perceived citizenship or immigration status of children or their parents or guardians. The letter is an update to the May 6, 2011, Dear Colleague letter on this subject and reiterates current federal law.

The letter explains that in order to comply with federal civil rights laws and mandates from the Supreme Court, school districts must ensure that they do not discriminate on the basis of race, color, or national origin, and that students are not barred from enrolling in public elementary and secondary schools on the basis of their (or their parents’ or guardians’) citizenship or immigration status. To assist school districts in meeting these obligations, the Departments of Justice and Education provided examples of permissible enrollment practices as well as examples of information that cannot be used as a basis for denying enrollment.

For instance, school districts may require students or their parents to provide proof of residency by requiring copies of documents such as phone bills or a lease agreement. However, inquiring into the citizenship or immigration status of a student or their parent or guardian is irrelevant to establishing residency within the district. Furthermore, a district should ensure that any of its required documents to establish residency do not unlawfully discourage a student who is undocumented from enrolling in or attending school.

Additionally, if a district requests social security numbers, it must state that disclosure is voluntary, provide the basis upon which it is seeking social security numbers, and explain how the numbers will be used. Districts may not deny enrollment to a student if the student or his or her parents or guardians do not provide a social security number. Similarly, a parent’s or guardian’s refusal to respond to a request for certain data, such as the race or ethnicity of a student, cannot be used to deny the enrollment of the student.

Likewise, school districts cannot prevent students from enrolling because they lack a birth certificate or have a foreign birth certificate. Rather, districts should make parents aware of alternative documents to show that a student meets the school’s age requirements. The collection and review of information must be applied uniformly to all students.

Finally, the Departments of Justice and Education attached a “Frequently Asked Questions” document to the letter, which encourages school districts to take proactive steps to educate parents about their children’s rights and reassure them that their children are welcome in the district’s schools. For example, choosing to wait to collect demographic documentation until after enrollment may create a welcoming and inclusive atmosphere for all prospective students.

The letter and revised Frequently Asked Questions document can be accessed here: http://www2.ed.gov/about/offices/list/ocr/whatsnew.html.

Please contact Stephanie Jones or Bennett Rodick with your student residency and student immigration law inquiries.

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