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“I” Is For “Immigrant and Undocumented Students”
By Andrew W. Li on March 23, 2018

In this installment of the Public Schools and Education blog, Andrew Li discusses immigration enforcement and what it means to school districts in New Jersey. 

Although immigration-related issues seem to have temporarily taken a back seat to the current focus on school violence, the question of how our country will address those undocumented individuals has not gone away.

While answers to that important question on a nationwide-basis may not be forthcoming soon, that doesn’t change the fact that locally, school districts across New Jersey are looking at their anticipated enrollment numbers for the next school year - numbers which may include undocumented school-age children.

In an environment of continued fiscal constraints, school districts may be tempted to ask why their enrollment includes undocumented students. However, at least that question has a definite answer: a 1982 decision rendered by the United States Supreme Court in Plyler v. Doe, which held that all children have the right to a public education (K-12), regardless of their immigration status.

In coming to its decision, the Supreme Court noted that “[t]he stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”

As recently as May 8, 2014, the United States Department of Justice and Department of Education issued a “Dear Colleague” letter which reiterated the obligation of school districts to ensure that students are not barred from enrolling in elementary and secondary public schools based upon the students’ citizenship or immigration status or that of their parents or guardians.

Our Department of Education has similarly issued a memorandum regarding the enrollment of immigrant and/or undocumented students in New Jersey, which echoes the May 8th federal “Dear Colleague” letter. In addition, the Department of Education reminded school districts that New Jersey administrative code, at N.J.A.C. 6A:22-3.3, provides that, generally, students domiciled within or otherwise eligible to attend a public school within that district “shall be enrolled without regard to, or inquiry concerning immigration status.”

Indeed, N.J.A.C. 6A:22-3.4(d) specifically prohibits school districts from conditioning or denying enrollment based upon “[d]ocumentation or information relating to citizenship or immigration/visa status,” except for in certain limited circumstances.

School districts may also want to review their policies and practices, including their Memorandum of Agreement with local law enforcement, in the event of an immigration enforcement action in their area.

The U.S. Immigration and Customs Enforcement agency has stated that, under its current policy, immigration enforcement actions generally will not to occur or be focused upon sensitive locations (which includes schools, churches and other places of worship). However, ICE has not shut the door upon those actions in such location when there are “exigent circumstances,” the agency has been lead to the sensitive location by “other law enforcement actions," or “prior approval is obtained from a designated supervisory official.”

However, the limits of this policy may be subject to debate, and in light of the enforcement actions taken against two allegedly undocumented individuals who were arrested by ICE after dropping their children off at a bus stop and at school in New Jersey, school districts may wish to consider whether there is a mandatory and/or voluntary obligation to assist or cooperate with such enforcement actions.

Obviously, these are highly sensitive issues, which school districts would wise to consider and address in the coming months. For more information and guidance on this topic, please contact the attorneys in Parker McCay’s Public Schools and Education Department.

The content of this post is for informational purposes only and should not be construed as legal advice or legal opinion. You should consult a lawyer concerning your specific situation and any specific legal question you may have.

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