The U.S. Public Education System and undocumented students

students in a classroom

Regardless of citizen status, children living in the United States are legally permitted to receive an elementary, middle, and high school education through the U.S. public school system. In the United States, elementary education begins at age five or six and continues until the child finishes fifth grade. Middle school education starts in sixth grade and completes at the end of eighth grade. High school is comprised of ninth through twelfth grade. Once a student graduates from high school, the eligibility for a non-citizen to attend a public college or university depends on each state’s guidelines.

Millions of children across the United States are undocumented or living in mixed-status households. Parents may hesitate to enroll their children in school because they fear their undocumented status may become known. It’s important to know that school officials have no legal obligation to enforce U.S. immigration laws. In the United States, children have the right to learn and not be punished or denied rights due to circumstances outside of their control. 

The right to attend public school

In the 1982 U.S. Supreme Court case Plyer vs. Doe, it was ruled that undocumented children are entitled to the same kindergarten through 12th-grade educational opportunities as provided to students who are citizens or legal residents. In addition to public education, the case also granted students access to free and reduced-price meals, special education services, and school-sponsored events and activities. The ruling was based on the reasoning that undocumented children are illegally in the United States through no fault of their own.

As a result, schools are not permitted to inquire about the parent’s citizenship status or require a social security number to enroll a student. 

The Court reasoned that any societal harms such as possible unemployment, welfare, and crime resulting from restricted access to education far outweighed the potential cost savings from excluding access to educational resources. The Court stated, “By denying these children a basic education, we deny them the ability to live within the structure of our civic institution, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.”

Family Educational Rights and Privacy Act (FERPA)

FERPA, a federal law enacted in 1974, protects the privacy of student education records. This law applies to any public elementary, middle, or high school, including any state or local education agency that receives funding from the U.S. Department of Education. FERPA gives parents and students over the age of 18 control of their educational records and prohibits schools from disclosing “personally identifying information in educational records” without written consent.

School authorities would be violating FERPA if they reported an undocumented student’s enrollment or education records to immigration authorities without the written consent of the eligible student or their parents. However, according to the CDC, schools are permitted to disclose educational records without permission in cases such as:

  • School officials with legitimate educational interest
  • Other schools to which a student is transferring
  • Specified officials for audit or evaluation purposes
  • Appropriate parties in connection with financial aid to a student
  • Organizations conducting certain studies for, or on behalf of, the school
  • Accrediting organizations
  • Appropriate officials in cases of health and safety emergencies
  • State and local authorities, within a juvenile justice system, according to specific State law
  • Compliance with a judicial order or lawfully issued subpoena

Private schools are not subject to FERPA because they are run and funded by private individuals or corporations. However, public schools must adhere to federal laws because they are supported by public and federal funds and are required to provide free education to children of a community or district. 

Since private schools are not supported by federal funding, they can set their own admission requirements, curriculum, and tuition guidelines. If a private school accepts federal funding, it must follow specific federal regulations, including non-discrimination laws. 

Education requirements for limited English-proficient students

When a child with limited English proficiency enters the U.S. public school system, there are requirements to ensure that resources are available to help remove any language barriers. 

In the 1974 Lau v. Nichols U.S. Supreme Court case, the Court found that school districts that did not provide language-assistance programs to non-English proficient students violated Title VI of the Civil Rights Act. The argument stated that the lack of language assistance violated students rights under the Equal Protection Clause from the U.S. Constitution’s Fourteenth Amendment and Section 601 of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in any program or activity receiving federal financial assistance. 

The Court ruled that the lack of “appropriate relief” for the non-English speaking students resulted in the denial of meaningful education and violated the Civil Rights Act. Since public school systems receive federal funding, they must provide equal opportunities and access to all students. As a result, a grant program entitled English Language Acquisition, Language Enhancement, and Academic Achievement Act was created to help public schools obtain the necessary resources for developing programs for their limited English proficient students.

As a requirement of this funding, schools are expected to create or develop language instruction courses to help students meet academic standards. The schools are responsible for reporting on the yearly progress of the students’ language proficiency. The students are measured against annual development objectives for the school to continue to receive the funding. 

The federal funding program is part of the federal Elementary and Secondary Education Act (ESEA) to ensure limited English proficient students’ language proficiency and academic performance. The act also provides guidelines ensuring “meaningful communication” with non-English speaking parents or guardians. Schools are required to offer translated materials or a language interpreter at any parental meetings. The language assistance must be free and provided by appropriate and competent outside resources.  School districts may not rely on students, siblings, friends, or untrained school staff to translate or interpret for limited English proficient sponsors or parents.

College education opportunities for undocumented students

There are no federal laws that bar undocumented students from pursuing their education after high school. However, no federal laws require public or private colleges or universities to accept non-citizens. Each state can develop its own rules regarding the admissibility of undocumented students. Some states have left the decision of admission and tuition costs, including in-state vs. out-of-state charges, to the discretion of colleges and universities within their state borders. Out-of-state tuition rates are generally more expensive than in-state tuition. 

Only two states – Alabama and South Carolina prohibit undocumented students from attending their state universities. Undocumented residents in these states must either pay more to attend a private college or move out of state and pay out-of-state tuition rates at another public school system. Arizona, Georgia, Indiana, and Missouri require undocumented students to pay out-of-state tuition fees to attend their state universities. 

However, more states are helping to remove some of the barriers to attending college. At least 19 states have provisions allowing for in-state tuition rates for undocumented students through “tuition equity” laws. Seven state university systems have also established policies to offer in-state tuition rates to unauthorized immigrant students. 

Undocumented students are also prohibited from receiving federal student aid, such as the Pell Grant or the Free Application for Student Federal Aid (FASFA), to help cover tuition and other college costs. Many students have to rely on paying out of pocket, personal or private loans, scholarships, or state student aid where applicable. 

It is estimated that 450,000 undocumented students are currently enrolled in postsecondary education, making up approximately two percent of all U.S. college students. Attending college as an undocumented student may present challenges, but it is not impossible. Colleges look for intelligent, ambitious, and exceptional students to bring something new and unique to their student body, regardless of their country of birth. 

The path to citizenship

Providing undocumented children access to public education is beneficial to American society in numerous ways. Education opens the door to gainful employment opportunities, the potential to improve and give back the U.S. economy, the possibility of a stable and productive life, and the ability to contribute to a more connected, open-minded, and accepting society. 

The federal government has recognized the importance of education for all children within the United States but still has a long way to go to remove the barrier to higher education for undocumented students. The recent reinstatement of DACA is a step in the right direction. Hopefully, DACA will be the start of permanent legislation for a more streamlined path towards citizenship. 

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