Anyone thinking of excluding immigrant students from K-12 public schools can drop that idea. The U.S. Supreme Court has held such a policy unconstitutional. That ruling goes back over 30 years.
In 1975, the Texas Legislature gave authority to local school districts to refuse enrolment in public schools to foreign-born children who lacked documentation of being “legally admitted” into the United States. Subsequently, the Tyler Texas Independent School District established a policy of charging such students tuition.
When the policy was challenged in court in Plyler v. Doe, such practices were found unconstitutional by the federal district court, the appeals court and finally the U.S. Supreme Court. The ruling was based on the 14th Amendment that states that “No State shall...deny to any person within its jurisdiction the equal protection of the laws.”
This “equal protection” law found that since states provide a free K-12 public education to U.S. citizens and lawfully-present foreign-born children, they cannot deny education to undocumented children unless the state has a “substantial state interest.” And they found that the value of educating all of the children within the state’s jurisdiction far outweighs the costs to society of excluding those children. While this was not a unanimous decision, the minority dissenting judges made clear they did not support the discriminatory intent of the Texas statute, though they quarreled with the logic applied to reach the majority’s ruling.
That has not prevented subsequent state actions that have tried to circumvent the Plyler ruling.
In 1994, California passed a Proposition 187 to prohibit public K-12 schools from admitting any undocumented student and to report such students to the immigration officials. That was rapidly struck down in federal court for violating Plyler.
In 2006 in Illinois, a district denied enrolment to a student who overstayed the tourist visa. The student was quickly admitted when the Illinois State Board, based on the Plyler decision, indicated the Board would withhold funding to the district.
In 2011, the Alabama legislature required its public schools to determine the immigration status of all new students, and report all data back to the State Board of Education. That provision was permanently blocked by the federal appellate court when Alabama settled the lawsuit in October 2013.
While the Plyler decision did not specifically address all of the additional actions possible, it is clear from the U.S. Supreme Court rationale that any actions that would discourage immigrant student attendance are unlikely to survive scrutiny under the Plyler decision. For instance, in the Alabama case, over 13 percent of Latino students statewide (both undocumented and citizens) withdrew from school in fear of attending. That is a bad consequence that the Court was concerned with in their Plyler decision.
As teachers, our responsibility and training is to educate students, not serve as agents for Immigration and Customs Enforcement. Not only are school personnel not trained in ICE, to assume such duties immediately erodes the trust all students have in their teachers and promotes student bullying of classmates suspected of being foreign-born.
In addition, the Family Educational Rights and Privacy Act (FERPA) restricts access to student records to those professionals who have a need-to-know based on their educational role (advisors, counselors, etc.) and aside from directory information, student information cannot be disclosed to external parties without parental consent.
This issue is fairly simple: all youngsters who reside in our schools’ districts get an education...period.