Undocumented students have legal right to public education

Secretary of Education Betsy DeVos was recently criticized for an inaccurate statement regarding schools’ and local communities’ ability to choose whether to report undocumented students or students’ families to Immigration and Customs Enforcement. Her statement misrepresented existing law, and the Secretary has subsequently walked back her comments.

The controversy began on May 22, when Secretary DeVos responded to a question about whether a teacher or principal has the responsibility to notify ICE about an undocumented student or a student’s undocumented family, stating it was “a school decision” and “a local community decision.” Secretary DeVos provided an updated statement in the days that followed, saying that “schools are not, and should never become, immigration enforcement zones,” and then further stated before the Senate Appropriations subcommittee that “in a school setting, a student has the right to be there and the right to learn. And so everything surrounding that should protect that and enhance that student’s opportunity and that student’s environment.” She clarified that she didn’t think school officials could legally call ICE to report an undocumented student.

  • Supreme Court decision in Plyler v. Doe protects the right of undocumented immigrant children to a free public education
  • California Education Code requires school districts to adopt a policy limiting assistance to immigration enforcement; cannot gather information on students’ citizenship status

The potential confusion caused by Secretary DeVos’s earlier statement is unfortunate, and it is important for school districts, educators, students and their families to understand that schools should not and cannot report undocumented students or their families to ICE.

In 1982, the Supreme Court ruled in Plyler v. Doe that states must provide all students with a free public education, regardless of their immigration status. The U.S. Department of Justice and U.S. Department of Education explained the impact of Plyler v. Doe in their jointly published fact sheet in 2014: “As Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public education. To comply with these Federal civil rights laws, as well as the mandates of the Supreme Court, you must ensure that you do not discriminate on the basis of race, color, or national origin, and that students are not barred from enrolling in public schools at the elementary and secondary level on the basis of their own citizenship or immigration status or that of their parents or guardians. Moreover, districts may not request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin.” A school cannot deny access to public schools on the basis of a student’s or their family’s immigration status, which logically includes a prohibition on excluding students from school by reporting them to immigration officials.

Further, the Family Educational Rights and Privacy Act prevents schools from sharing student information, including their citizenship status, without parental consent. All student records are generally exempt from disclosure or subject to redaction to prevent disclosure of personally identifiable information.

These protections are codified under California law as well. Pursuant to Education Code 234.7, school districts are mandated to adopt a policy consistent with a model policy developed by the California Attorney General, which limits assistance with immigration enforcement at public schools, and district staff cannot solicit or collect information or documents regarding the citizenship or immigration status of students or their family members, or provide assistance with immigration enforcement at district schools, except as may be required by state and federal law.

Schools and families should also be aware that ICE and Border Patrol continue to have policies in place to “generally avoid” enforcement actions at “sensitive locations,” including schools, school bus stops, health care facilities, places of worship, weddings, funerals and during public demonstrations such as a parade.

Beyond the legal protections in place, it is important for the success of our schools and of all students that students and their families understand that California schools are safe learning environments for all students, regardless of immigration status.

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