May 9, 2011
Last Friday the Office for Civil Rights and the Justice Department jointly issued a "Dear Colleague" letter to school administrators clarifying that student enrollment practices that chill or discourage the participation, or lead to the exclusion of students based on their or their parents' citizenship or immigration status violate federal law. Under federal law State and local education agencies are required to provide equal access to public education in elementary and secondary schools. Specifically, Title IV of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin by public elementary and secondary schools. Additionally, Title VI prohibits discrimination by recipients of federal financial assistance on the basis of race, color, or national origin. Moreover, the regulations enforcing Title VI prohibit school districts from using criteria that have the effect of subjecting individuals to discrimination because of their race, color, or national origin.
The Dear Colleague letter points out that the Supreme Court ruled in Plyler v. Doe that a state may not deny access to a basic public education to any child residing in the state, whether the child is in the United States legally or otherwise. The Court noted that denying "innocent children" access to public education "imposes a lifetime of hardship on a discrete class of children not accountable for their disabling status...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."
The letter provides examples of permissible and impermissible enrollment practices. A district may require that students or their parents provide proof of residency within the school district. For example, a district may require copies of phone and water bills or lease arrangements. But asking about a student's citizenship or immigration status, or their parent's immigration status is not relevant. A district may require a birth certificate to ensure the student falls within the district's minimum and maximum age requirements. The district, however, may not bar a student from enrolling based on a foreign birth certificate. Moreover, while a district can request a student's social security number for use as a student identification number, districts may not deny enrollment to a student if the student does not provide the social security number.
The Dear Colleague letter closes by suggesting that school administrators take two steps immediately. First, they should review the documents their districts require for enrollment to ensure the documents do not have a chilling effect on the student's enrollment in school. Second, they should look at their enrollment data. Precipitous drops in the enrollment of any group of students may mean there are barriers to that groups attendance that should be further investigated. Finally, for further clarification, the Office for Civil Rights provides information in a Question and Answer format and a Fact Sheet.
