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The number of unaccompanied alien children who crossed the United States’ border with Mexico increased by nearly 30,000 to more than 67,000 in fiscal 2014, according to U.S. Customs and Border Protection statistics. When apprehended by U.S. immigration authorities, these children are transferred to the custody of the U.S. Department of Health and Human Services’ Office of Refugee Resettlement, which largely places them with sponsors in states where “immigrants have traditionally settled.”

More than 6,100 have been placed in New York State, including more than 3,000 on Long Island, more than 2,500 in New York City, and more than 600 in Westchester, Rockland, and Orange counties.

As a practical matter, school districts should be prepared to make enrollment decisions without regard to the immigration status of children and their parents or guardians, and such decisions should not be unduly delayed by the inability to obtain documentation for enrollment. The need to address the needs of unaccompanied alien children must occur within the existing legal framework.

Legal framework of student enrollment in New York
The New York State Education Law provides, “In each school district of the state, each minor from six to sixteen years of age shall attend upon full time instruction” and that, “[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.” The commissioner of education has repeatedly held that the purpose of the Education Law’s residency requirement, “is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district.”

Prior to making a determination of entitlement to attend its schools, a school district must allow the child or his/her parent or guardian “the opportunity to submit information
concerning the child’s right to attend school in the district.” If a school district subsequently determines that the child is not a district resident, the district must, within two business days, provide written notice to the child or his/her parent or guardian with certain information, including information with regard to the appeals procedure.

School districts are not legally required to immediately enroll any student when the district has reason to believe such student is not a resident of the district, unless the student is homeless (or raises the specter of homelessness) pursuant to the McKinney-Vento Homeless Education Assistance Improvement Act (see sidebar, below).

The issue recently was addressed in a guidance document from the U.S. Department of Justice, Civil Rights Division, and the U.S. Department of Education Office for Civil Rights on May 8, 2014. The guidance states: “… school districts might require that prospective students furnish proof of residency in a district and/or age prior to enrollment, except for any children and youth who are considered homeless under the federal McKinney-Vento Homeless Assistance Act.” A footnote indicates that the term “enrollment” also means “registration, matriculation, or attendance in school” (see http://goo.gl/5yIi0a).

In decades of decisions on appeals concerning issues of residency in New York State, the commissioner never has held that a school district must immediately enroll a student who is not homeless and whom the district believes may not be a district resident, absent a stay order by the commissioner. (The commissioner may only issue a stay order where “necessary to protect the interests of the parties, or any of them, pending an ultimate determination of the appeal.”)

Districts should be vigilant to avoid undue delay in the enrollment of any student who is unable to present adequate documentary proof of residency, which may occur in the case of unaccompanied minors as well as other prospective students. In any such case, districts should be flexible in their approach to verifying residency.

Specifically, if a child is not able to provide the requested documents to show residency, school districts should be prepared to accept alternative proofs of residency prior to enrollment. For example, in cases where a child is unable to provide adequate documentary evidence of residency prior to enrollment, the district might consider arranging a home visit to make a determination as to whether the child is a school district resident. Typically, such verification occurs before enrollment.

However, in contrast to such an approach, state officials have advised districts to immediately enroll any student who applies where there is a question as to the adequacy of the proof of residency presented, and to continue the verification process post-enrollment (see sidebar, above).

Constitutional considerations
In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court found a 1975 Texas law that permitted local school districts to deny enrollment based upon a child’s immigration status to be unconstitutional because it deprived the child of equal protection under the law. The Plyler decision stands for the principle that the immigration status (e.g., undocumented, non-citizen, etc.) of a child is irrelevant to that child’s entitlement to an elementary and secondary public education.

Accordingly, a school district may not erect artificial hurdles for unaccompanied alien children to enroll in its schools and should not inquire as to a child’s immigration status as it is not relevant in the application process.

Plyler does not require a school district to immediately enroll any child where the child has not established a right to attend the schools of such district. Plyler merely requires that school districts handle the registration applications of all children in a similar fashion, without regard to the immigration status of the child (or his parent/ guardian). Further, the Plyler decision was cited by the federal authorities as the basis for its guidance that school districts should not mandate the production of a birth certificate or social security number in the enrollment application process because such documents may not be available to undocumented aliens.

In addition, school districts must make residency determinations within the timelines set forth in the regulations of the commissioner of education to allow for the prompt enrollment of resident children. The same pertains to district requirements regarding proof of age and grade level.

A flexible approach to making residency determinations in an expedient manner is consistent with applicable law, regulations, and the decisions of the commissioner of education.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Barbara Emigholz and John Sheahan of Guercio & Guercio LLP.