Immigration Policies
in Public Schools
Janet Riesgo
Barry University
Immigrant Student as defined by FLDOE
• The term immigrant children and youth means individuals who:
(A) are ages 3 through 21;and
(B) were not born in any State, the District of Columbia or Puerto Rico; and
(C) have not been attending one or more schools in any one or more States for more
than 3 full academic years.
Immigration in the United States
• Since the late 19th century, the United States has restricted immigration into this
country.
• Unsanctioned entry into the United States is a crime, 8 U.S.C. § 1325, and those
who have entered unlawfully are subject to deportation,
8 U.S.C. §§1251-1252.
• According to the Department of Homeland Security, there are 1.1 million
undocumented children under 18 living in the U.S., while a 2011 Pew Research
Center report found there were 4.5 million U.S.-born children of undocumented
immigrants.
Immigration in Florida
The Fourteenth Amendment
Section 1.
• All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
Plyler v. Doe , 1982
• Location: Tyler Independent School District in Texas
• Facts of the Case: A revision to the Texas education laws in 1975 allowed the state
to withhold from local school districts state funds for educating children of illegal
aliens. This case was decided together with Texas v. Certain Named and Unnamed
Alien Child.
• Question: Did this Texas law violate the Equal Protection Clause of the Fourteenth
Amendment by denying undocumented school-age children the free public
education it provides to children who are citizens of the United States or legally
admitted aliens?
An Overview of the Plyler Decision
• In Plyler v. DOE, the Supreme Court struck down the Texas statute which required
children of illegal immigrants to pay tuition in order to receive a public school
education, deeming the statute to be a violation of the Equal Protection Clause.
• The Plyler Court asserted that regardless of a person’s status under immigration law,
he or she is still a person under the Constitution and is thus guaranteed equal
constitutional protection under the fourteenth amendment. The Court further
concluded that persons who have entered the country illegally are still “within the
jurisdiction of a state,” because Congress intended the jurisdictional phrase to be
broad in scope.
School Compliance with the Plyler Standard
As a result of the Plyler ruling, public schools may not:
• Deny admission to a student during initial enrollment or at any other time on the basis
of undocumented status.
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Treat a student differently to determine residency.
Engage in any practices to "chill" the right of access to school.
Require students or parents to disclose or document their immigration status.
Make inquiries of students or parents that may expose their undocumented status.
Require social security numbers from all students, as this may expose undocumented
status.
Plyler Conclusion
In general, the prevailing wisdom is that complying with Plyler means not only
that local school districts must provide education for the student, but also
means that the districts “may not require students or parents to disclose or
document their immigration status, or make inquires that may expose their
undocumented status.”
Lower Courts Applying Plyler
• In League of Latin American Citizens v. Wilson, a federal district court invalidated section seven
of California Proposition 187, which required school districts to, among other things, not
admit undocumented students, verify the legal status of all students, and report
undocumented students to Immigration and Customs Enforcement. The court invalidated
section seven in its entirety, citing Plyler v. Doe’s holding that states are prohibited from
excluding undocumented children from public schools.
• In Horton v. Marshall Public Schools, the Eighth Circuit held that excluding a minor child from
school unless the child has a parent or guardian living in the district violates the child’s equal
protection and due process rights. Relying on Plyler, the court concluded the school district
offered no substantial goal to justify “singling out” minor children who do not have a parent
or guardian living in the district and “totally depriv[ing them] of an education.”
Meyer v. Nebraska , 1922
• Location: School of Evangelical Lutheran Zion’s Church
• Facts of the Case: Nebraska, along with other states, prohibited the teaching of
modern foreign languages to grade school children. Meyer, who taught German in a
Lutheran school, was convicted under this law.
• Question: Does the Nebraska statute violate the Fourteenth Amendment's Due
Process clause?
Meyer Conclusion
The Nebraska law was found to be unconstitutional. Nebraska violated the
liberty protected by due process of the Fourteenth Amendment. State
regulation of liberty must be reasonably related to a proper state objective.
The legislature's view of reasonableness was subject to supervision by the
courts. The legislative purpose of the law was to promote assimilation and
civic development. But these purposes were not adequate to justify
interfering with Meyer's liberty to teach.
Lau v. Nichols, 1974
• Location: School of Evangelical Lutheran Zion’s Church
• Facts of the Case: The San Francisco school system fails to provide English
language instruction and other adequate instructional procedures to approximately
1,800 students of Chinese ancestry who do not speak English.
• Question: Does the school system deny these students of meaningful opportunity
to participate in the public educational program, and thus violate § 601 of the Civil
Rights Act of 1964, which bans discrimination based "on the ground of race, color,
or national origin," in "any program or activity receiving Federal financial
assistance“?
Lau Conclusion
With Lau v. Nichols the U.S. Supreme Court guaranteed children an opportunity to a
"meaningful education" regardless of their language background. Henceforth the schools
would have to assume responsibility for overcoming language barriers. The Lau decision did
not prescribe a pedagogical means to this end; "affirmative steps" might involve bilingual
instruction, ELL classes, or perhaps some other approach. But the mandate was clear:
language-minority students must be ensured access to the same curriculum provided to their
English-speaking peers.
Equal Education Opportunities Act
• The struggle for equality and nondiscrimination in education at all levels has
a long history in the United States. Following Brown v. Board of Education
(1954) and the ensuing civil rights struggles of the 1950s and 1960s,
Congress passed Title VI of the Civil Rights Act of 1964, which prohibits
discrimination based on race, color, age, creed, or national origin in any
federally funded activity or program.
Bilingual Education Act of 1968
• First piece of U.S. federal legislation that recognized the needs of English Language
Learners .
• Passed in the heels of the civil rights movement, its purpose was to provide school
districts with federal funds, in the form of competitive grants, to establish
innovative educational programs for students with limited English speaking abilities.
• The BEA demonstrated “a shift from the notion that students should be afforded
equal educational opportunity to the idea that educational policy should work to
equalize academic outcomes, even if such equity demanded providing different
learning environments.”
Immigration Law in Florida Public Schools
• The State of Florida has limited authority under US Immigration law whereas the
United States Congress has total authority.
• No Child Left Behind has the potential to improve the education of children of
immigrants and limited English speaking children in several important ways.
• Most key provisions affecting immigrant students are set out in Title I and Title III
of the Act. Many children of immigrants are limited English proficient. They also
often fall into one or more of the NCLB Act’s other protected classes, including
“major racial and ethnic groups low-income students, and students in special
education programs(U.S. Department of Education 2002).
Florida’s Consent Decree
The Consent Decree is the state of Florida's framework for compliance with the following federal and state
laws and jurisprudence regarding the education of English language learner students:
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Title VI and VII Civil Rights Act of 1964
Office of Civil Rights Memorandum (Standards for Title VI Compliance) of May 25, 1970
Requirements based on the Supreme Court decision in Lau v. Nichols, 1974
Equal Education Opportunities Act of 1974
Requirements of the Vocational Education Guidelines, 1979
Requirements based on the Fifth Circuit court decision in Castañeda v. Pickard, 1981
Requirements based on the Supreme Court decision in Plyler v. Doe, 1982
Americans with Disabilities Act (PL 94-142)
Florida Education Equity Act, 1984
Section 504 of the Rehabilitation Act of 1973
Scenario Overview
• On August 20, 2013, Maria, the maternal aunt of Jose, went to John Doe K-8
Center, a public school located in Miami, to enroll her nephew.
• Jose, the eight year old boy, was born in Cuba and sent to live with his aunt with only
several documents.
• According to the school’s registrar, Maria does not have the proper documentation
required to enroll Jose. Parents’ legal guardians are required to provide proper
documentation of residency and legal guardianship.
• The administrator is later involved and reiterates what the school’s “Registration
Checklist” entails, and informs Maria that he will not be able to register Jose.
Evaluative Discussion
• Are public elementary and secondary schools required to educate
undocumented children? Use evidence from landmark cases to support your
response.
• Can school officials mandate that parents or students provide
identification/documentation for proof of residency?
• Does the school district have to educate the undocumented student who is not
living with a parent or legal guardian?
• Describe the association between the Equal Protection Clause of the 14th
amendment and the decision made by the Supreme Court in Plyler v. Doe.
McKinney-Vento Act
• In certain circumstances, the McKinney-Vento Act, which provides for the
education of homeless children, might apply to undocumented children
living away from their parents/legal guardians. McKinney-Vento requires
that school districts allow homeless children to enroll in public schools, even
if they are unable to prove residency or guardianship. Homeless children,
according to McKinney-Vento, include “children and youths who are sharing
the housing of other persons due to loss of housing, economic hardship, or
a similar reason.”
Something to think about…
• “Public schools should provide equitable access and ensure that all students have the
knowledge and skills to succeed as contributing members of a rapidly changing, global
society, regardless of factors such as race, gender, sexual orientation, ethnic background,
English proficiency, immigration status, socioeconomic status, or disability.”
Article IV, Section 1. 2; Beliefs & Policies of the National School Boards Association
• [The National Education Association] opposes any immigration policy that denies
human and/or civil rights or educational opportunities to immigrants and their
children regardless of their immigration status.
National Education Association Resolution I-21. Immigration
References
• U.S. Department of Education. 2002. “Executive Summary: The No Child Left Behind Act of 2001.” Washington, DC:
U.S. Department of Education.
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Plyler v. Doe - 457 U.S. 202 (U.S. Supreme Court.1982)
Meyer v. Nebraska - 262 U.S. 390 (U.S. Supreme Court.1923)
Lau v. Nichols- 414 U.S. 563 (U.S. Supreme Court.1974)
"The Constitution of the United States," Amendment 14.
Hogan & Hartson, LLC. (2009). Legal Issues for School Districts Related to the Education of Undocumented Children [PDF file].
1-36. Retrieved from http://www.ncpie.org/WhatsHappening/UndocumentedChildrenNov2009.pdf
• Passel, J. and Cohn, D. (2010) Unauthorized Immigrant Population: National and State Trends, (Washington, DC: Pew
Hispanic Center, February 1, 2011), p. 24-25.
• The School Board of Miami Dade County, Florida. Registration Requirements. Retrieved from
http://attendanceservices.dadeschools.net/reg_require.asp
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Florida Department of Education (2012-2013) Enhanced Instructional Opportunities for Recently-Arrived Immigrant Children
and Youth. Retrieved from http://www.fldoe.org/aala/pdf/TitleIII1213RFA-ImmigrantYouth.pdf
• Florida Department of Education (2012-2013) Consent Decree. Retrieved from http://www.fldoe.org/aala/cdpage2.asp