Public Education and Student Immigration Law
In the wake of September 11, 2001, school districts across the nation are struggling with the fallout from the highly charged national debate on the issue of immigration reform. Prior to the terrorist attacks of 9/11, many foreign nationals would enter the United States on a B-2 visa, which allows individuals to enter the U.S. for an extended period of time for the purposes of visiting with friends, family or touring the country, only to later apply to change his or her visa status to that of a student. The old policy allowed the applicant to remain in the U.S. and take classes while his or her student visa application was ...view middle of the document...
e., Students whose Documented Status is Unknown)
In 1982, in Plyler v. Doe, the Supreme Court of the United States ruled that states and school districts could not deny education to illegal alien children residing within their borders. More specifically, the decision allowed illegal alien children, who reside in a school district, to attend grades K-12 at a public school on the same terms as resident children who are American citizens.2 As of now, Plyler stands as good law, and state education departments and local school districts are advised to broadly interpret the Plyler decision and the Family Educational Rights and Privacy Act (“FERPA”) to assure that illegal alien students receive a public education and receive maximum protection of their identities.
Marcia N. Needleham & Laura L. Vea, Basic Immigration Law: F, J, and M Nonimmigrants, 158 PLI/NY 203, 209 (2006). Plyler v. Doe, 457 U.S. 202, 223 (1982).
An Overview of the Plyler Decision
In Plyler, the Supreme Court struck down a Texas statute which required children of illegal immigrants to pay tuition in order to receive a public school education, deeming the statute to be a violation of the Equal Protection Clause. The Plyler Court asserted that regardless of a person’s status under immigration law, he or she is still a person under the Constitution and is thus guaranteed equal constitutional protection under the fourteenth amendment. The Court further concluded that persons who have entered the country illegally are still “within the jurisdiction of a state,” because Congress intended the jurisdictional phrase to be broad in scope.3 The Plyler Court weighed these public policy implications heavily. It applied an intermediate level of scrutiny4 and concluded that although education is not a fundamental right and illegal aliens are not a suspect class, education is a crucial component to achieving success in life. The Court further reasoned that children of illegal immigrants should not be punished for a status they did not choose on their own volition. It stated that 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.”5
School Compliance with the Plyler Standard and FERPA
As a result of the Plyler decision, illegal alien students have been afforded heightened protection, and local school districts have been encouraged to change their record-keeping policies to protect their undocumented status. State education departments around the country have issued memoranda interpreting the Plyler decision. In general, the prevailing wisdom is that complying with Plyler means not only that local school districts must provide education for the student, but also means that the districts “may not require students or parents to disclose or document their immigration status, or make inquires...