Residency and “Illegal Alien Status” Are Not Mutually Exclusive for School Accommodations: A Friendly Reminder From Washington D.C. and “Do’s and Don’ts”

It is worth remembering that when determining if someone is a resident of your school district, the fact that someone may not actually be a legal resident of this nation is irrelevant.  In order to underscore this fact, the United States Department of Justice and the United States Department of Education’s Office of Civil Rights recently joined forces to issue a “Dear Colleague Letter” [“DCL”] to provide guidance to school districts as to what is and is not permissible in terms of assessing the residency of students.  The DCL reminds school districts that barring students from enrolling in the public schools based upon their (or their parents’) citizenship or immigration status could also violate the numerous laws that prohibit discrimination on the basis of race, color, or national origin, since citizenship/immigration-based criteria may have the effect of discriminating against persons based upon racial or ethnic status.

The DCL follows well-established United States Supreme Court precedent.  In Plyler v. Doe, 457 U.S. 202 (1982), the Supreme Court held that a state may not deny access to public education to any child residing in the state, regardless of whether the child is present in this country legally; this holding is cited in the DCL, which further notes:  "[A]s Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public education.”  A year after Plyler, the Supreme Court held in Martinez v. Bynum, 461 U.S. 321 (1983), that residency within a school district for school accommodations purposes is usually based upon both physical presence and an intention to remain, and it is evident that one can reside within a town for school accommodations purposes without being a citizen or legal resident of the United States.

Consistent with Martinez, the DCL provides that “in order to ensure that its educational services are enjoyed only by residents of the district, a district may require students or their parents to provide proof of residency within the district.”  For example, a district may require copies of phone and water bills or lease agreement to establish district residency.  Consistent with Plyler, however, the DCL warns that inquiring into students’ citizenship or immigration status (or that of their parents or guardians) is not permissible, as it is not relevant to establishing actual residency within the district.  For example, a school district may not bar a student from enrolling in its schools because the student lacks a birth certificate or has records that indicate a foreign place of birth, such as a foreign birth certificate.

While the U. S. Department of Education requires districts to collect and report date regarding the race and ethnicity of their student population, districts cannot use the acquired data to discriminate against students, nor should a parent’s or guardian’s refusal to respond to a request for this data lead to a denial of his or her child’s enrollment.  Based upon federal privacy laws, the DCL affirms that a school district may not deny enrollment if a student (or parent or guardian) chooses not to provide a social security number.  If a district chooses to request a social security number, it must inform the individual that the disclosure is voluntary, provide the statutory or other basis upon which it is seeking the number, and explain what uses will be made of it.

Moreover, the guidance prohibits not only policies that actually bar enrollment based on immigration status, but also those that “discourage a student who is undocumented or whose parents are undocumented from enrolling in or attending school.”  When collecting and reviewing information, any request must be uniformly applied to all students and not applied in a selective manner to specific groups of students, nor should a district request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin.  The DCL further suggests that even a documentation requirement undertaken without immigration status in mind may be prohibited if it has the effect of barring students on the basis of their immigration status.  Somewhat ominously, the DCL warns school districts with respect to demographic shifts in a district’s student enrollment: “Precipitous drops in the enrollment of any group of students in a district or school may signal that there are barriers to their attendance that you should further investigate.”  Thus, in the eyes of the federal government, disparate outcomes in enrollment may be viewed to be indicative of inappropriate – and perhaps illegal -- barriers, regardless of intent.

SO WHAT SHOULD SCHOOL DISTRICTS DO NOW? School districts should review their policies (and the list of documents used to establish district residency) and ensure that any required documents would not unlawfully bar or discourage a student who is undocumented or whose parents are undocumented from enrolling in or attending school, or would not otherwise have a “chilling effect” on a student’s enrollment in school.  For example, if a parent can furnish commonly accepted documents like utility bills or a lease to establish her residence address, a district should avoid demanding an alternate document that may be suggestive of her immigration status, such as a driver’s license (unless it has some legitimate, non-immigration related concern about the authenticity or accuracy of the other documents). A district should never refuse enrollment because the documents it receives suggest foreign birth or lack of valid immigration status. In addition to a child’s foreign birth certificate, this same principle would generally apply to a parent’s foreign passport offered as proof of his or her identity, or a decree of a foreign court offered as proof of custody. If foreign-issued documents are otherwise sufficient to demonstrate the fact under question, they generally should be accepted.  Finally, even school districts fairly certain of the otherwise nondiscriminatory effects of their policies may wish to consider explicit disclaimers in their enrollment documents making clear that enrollment does not depend on immigration status.

Attorney Sommaruga is a member of the law firm of Pullman & Comley, LLC, which represents numerous school districts in Connecticut.  Attorney Mocciolo is an associate with that same firm; he has significant experience in immigration law matters and wrote about the above subject for the firm’s blog, “Education Law Notes."  Reposted with permission from the September 2014 Connecticut Association of Boards of Education Journal.