In Response to NYCLU Analysis, NYS Education Department Tells School Districts to Drop Illegal Barriers for Immigrant Children

August 31, 2010 —  In response to an analysis conducted by the New York Civil Liberties Union which found that at least 20 percent of public school districts across New York State may be unlawfully barring or discouraging the enrollment of immigrant students, the New York State Education Department this week issued guidance to all school districts making clear that they may not ask for information that would reveal a parent or child’s immigration status as a prerequisite for school enrollment.

On July 23, the NYCLU wrote to 139 school districts with problematic enrollment practices to educate them about the law, as well as the New York State Education Department (SED). The NYCLU had previously reached out to SED multiple times over a 10 month period about the enrollment barriers to no avail, but SED appears to have finally taken responsibility for the situation.

“We applaud the State Education Department for providing guidance on the law and the United States Constitution to help ensure that all of New York’s children are able to attend school and get an education,” said NYCLU Executive Director Donna Lieberman. “The Supreme Court ruled 28 years ago that all children have an equal right to a public school education, regardless of their immigration status. It’s critical that every school district in the state is aware of that and doesn’t unknowingly exclude immigrant children.”

The NYCLU surveyed New York State’s 694 school districts this past school year and discovered that at least 139 are asking, either directly or indirectly, for proof of a parent or child’s immigration status before a student may be enrolled in school.

Many school districts updated their policies once they heard from the NYCLU. Spencerport Central School District near Rochester had in place a glaringly discriminatory practice that it has since abandoned. Its student registration checklist no longer states: “If your child is not a U.S. citizen by birth, please bring your child’s I-94 form [or] Resident Alien Card. If the card is expired it will not be accepted.”

Likewise, the Fairport Central School district, outside of Rochester, removed its requirement that students who are not U.S. citizens present I-94 forms or alien registration cards to enroll for school.

And many school districts across the state deleted the requirement that children provide their Social Security numbers when registering. While this may not appear to discriminate, undocumented children are ineligible for Social Security numbers and are therefore unable to register.

“The NYCLU has heard from dozens of school districts across the state that were eager to follow the law, but just weren’t sure how to do it. It’s clear that this guidance from the state will help school districts meet their constitutional obligations,” said NYCLU Advocacy Director Udi Ofer. “The NYCLU will continue monitoring compliance by school districts to ensure that all schools are open to all of New York’s children. The state must do the same, and aggressively monitor the enrollment practices of school districts. SED’s work must not end now that it has issued student registration guidance.”

The Supreme Court ruled in 1982 that states violate the 14th Amendment when they deny undocumented children the same education opportunity that is provided to United States citizens. New York State Education Law further guarantees a free public education to youth older than five and younger than 21 who have not earned a high school diploma. Though schools may inquire about a student’s age and address, they break the law if they inquire about a student or parent’s immigration status.

“Undocumented children, like U.S. citizen children, have the right to attend school full time as long as they meet the age and residency requirements established by state law,” New York’s new registration guidance states.