School is open for immigrants 

Children of undocumented immigrants have a right to a free, public education, but schools and the children themselves still face challenges. 

 

School is open, or opening, for all schoolchildren in America. But for children of undocumented immigrants, that yearly ritual is not always so simple. Perhaps one of the greatest yearnings in the human heart is the need to secure an unshakeable sense of belonging.  

Americans flaunt group membership by wearing red, white, and blue lapel pins, flying Old Glory on the front porch, cheering the USA World Cup soccer team, and singing the “Star Spangled Banner.” Still, such unrelenting patriotism masks an ironic bias that goes something like this: Undocumented immigrants go home.  

Barring the door to learning is not only reprehensible but illegal.  

However, consider the fate of public school students who fit that category. Barring the door to learning is not only reprehensible but illegal. Federal courts have declared emphatically that the U.S. Constitution protects undocumented youth, guaranteeing them the same public education as everyone else. In short, they also belong.  

Since 2000, the number of immigrants has exploded, with travelers from Mexico and Latin American countries leading the way. The growth has been particularly acute in so-called new gateway states in the South and Midwest. This has created challenges for school systems. Among them are the need to ramp up new English language learner classes, reconcile cultural disconnects, or accommodate mobile populations.   

The first step is the school office during registration. School officials cannot ask the parent or child their immigration status. The singular obligation is to accept the registration and place the student into the pipeline like anyone else in the community. That said, there is nothing barring schools from demanding proof of residency.  

Equal rights  

The 1982 U.S. Supreme Court case Plyler v. Doe established the right for undocumented students to be admitted to public schools. The Texas legislature passed a law in 1975 to withhold state funds from children not “legally admitted” to the United States. That statute also allowed local school districts to reject students on the same grounds. A group of Mexican children challenged the practice in the Tyler Independent School District. 

Applying the 14th Amendment’s equal protection clause, then-Justice William Brennan, wrote, “This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a nation that prides itself on adherence to principles of equality under law.”   

Justice Brennan added, “Obviously, no child is responsible for his birth and penalizing the . . . child is an ineffectual — as well as unjust — way of deterring the parent.” 

The high court made clear that school officials have no role in enforcing immigration law.  

Plyler forbids K-12 officials from making inquiries that expose immigration status, requiring social security numbers, or engaging in other behaviors designed to reveal illegality. School districts can therefore accept foreign birth certificates or other international forms of identification. The high court made clear that school officials have no role in enforcing immigration law.  

That message was reinforced last spring when the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice released a joint guidance letter (along with a fact sheet and a separate question and answers document) reminding school districts of their responsibility to prevent discrimination against undocumented immigrant children.  

Upon release, U.S. Attorney General Eric Holder said exclusionary practices “not only harm innocent children, they also markedly weaken our nation . . . by leaving young people unprepared and ill-equipped to succeed and contribute to what is, in many cases, the only home they have ever known.” 

Sorting out tough issues 

Undoubtedly, these issues are not easy to digest. Undocumented immigrants are in essence taking advantage of our democracy without a written invitation. That adult act is compounded by bringing an innocent child into the equation.  

The 14th Amendment to the U.S. Constitution, however, provides that children born in the United States are U.S. citizens, regardless of the status of his or her parents. 

Still, this issue is not a slam-dunk that unabashedly favors immigrant children who arrive here without authorization. Generally speaking, there are three basic schools of thought. First, a development that starts with a criminal act can never be redeemed by the passage of time. Second, if an immigrant has been a contributing member of U.S. society, we should not forever hold a single, long-ago transgression against him or her. Third, children should never be punished because of mistakes made by their parents.  

The role of the law is to bring stability, civility, predictability, and a known set of rules outlining how immigrant students are to be treated in the public schools throughout the country.  

Alabama learned that lesson when the 11th U.S. Circuit Court of Appeals struck down the part of a 2010 Alabama immigration law that required public schools to check the citizenship status of new students.  

The impact of immigration  

The nation is experiencing a dual and possibly dueling occurrence. On one hand, racial and ethnic diversity is blossoming by virtue of the native-born and documented immigrant population. On the other, a growing deluge of undocumented immigrants — thousands each year — cross the border undetected in an effort to make a better life in the U.S. 

The impact of immigration — particularly for young people — has been the focus of debate in Congress and in state governments. Two years ago, President Obama issued an executive order calling for Deferred Action for Childhood Arrivals (DACA). The memo applies to children of undocumented parents. It does not grant citizenship, but for those who apply and are approved, it places a temporary halt to any deportation action. In addition, it allows a young person to work in the U.S. without fear.  

Similarly, state governments have been debating their own versions of the DREAM Act (Development, Relief, and Education for Alien Minors) legislation, which permits undocumented, aspiring college students to qualify for in-state tuition and financial aid. More than a dozen states have passed DREAM bills, and the Virginia attorney general in April 2014 issued an opinion declaring “dreamers” in Virginia eligible for in-state tuition.  

About 1.5 million undocumented children and youth live in the United States, according to the Department of Homeland Security. That statistic brings both burdens and opportunities. Many immigrants had little education in their country of origin and might not be equipped to assist their children. Children face mobility issues of transferring in and out of school related to their parents’ employment, language barriers, and cultural and social adjustments to the American way of schooling. Sometimes parents get deported, leaving unaccompanied minors in the United States.  

But the chance for strengthening diversity, understanding different nations and appreciating the toils of starting over in a new country can be an education in itself for students who might otherwise not acquire those experiences. For the schools the issue is straightforward: Thou shalt treat the child like any other student for all purposes. The rationale is that all youngsters need to be educated to become, as the Plyler decision suggests, “self-reliant and self-sufficient” contributors to the economic and intellectual vitality of the country. 

School systems must follow the law and set the tone, particularly at registration where trouble often begins. Immigrant students should feel accepted from the start and able to embrace the unshakeable sense of belonging each time the class stands to recite the Pledge of Allegiance. 

Citation: Darden, E.C. (2014). Ed law: School is open for immigrants. Phi Delta Kappan, 96 (1), 76-77.