As Congress tries to reach resolution on legislation to continue the Deferred Action for Childhood Arrivals (DACA) program, some board of education members have asked about the potential impact on, and responsibilities of, school districts in educating immigrant students.
DACA was a federal immigration policy established in 2012 that allowed persons who entered the country as minors without documentation to obtain deferred action from deportation and to be eligible for work permits. In September 2017, Attorney General Jeff Sessions issued a statement finding that the program was unconstitutional and urging the Department of Homeland Security to rescind it. On Sept. 5, the White House announced that initial DACA applications would no longer be accepted and renewal applications would no longer be accepted after Oct. 5. The administration set a deadline of March 2018 for Congress to pass legislation to restoring some form of the DACA program.
As a service to boards of education that wish to address the issue, NJSBA has developed a sample resolution that urges Congress to take immediate action on such legislation. In addition, sample resolutions from school districts regarding the responsibility to educate all students, regardless of immigration status, are also available. (See the resources at the end of this article.)
School Board Responsibility Whether the DACA program is eliminated or restored, however, school districts have a primary legal responsibility to educate all children who reside within their boundaries—regardless of immigration status, according to state statutes.
An analysis by NJSBA’s legal and policy staff cited the following statute, code and court decisions:
“Housing and immigration status” (N.J.A.C. 6A:22-3.3)
…immigration/visa status shall not affect eligibility to attend school. Any student who is domiciled in the school district or otherwise eligible to attend school there pursuant to [the residency code] shall be enrolled without regard to, or inquiry concerning, immigration status.
“Proof of eligibility” (N.J.A.C. 6A:22-3.4)
A district board of education shall not condition enrollment on the receipt of information or documents protected from disclosure by law, or pertaining to criteria that are not a legitimate basis for determining eligibility to attend school….
U.S. Supreme Court Decision
The NJSBA analysis also notes information on the New Jersey Department of Education website that references a 1982 U.S. Supreme Court decision in Plyer v. Doe.
In that case, the court held that “undocumented children living in the United States could not be excluded from public elementary and secondary schools based upon their immigration status.”
“Accordingly, school districts are prohibited from requiring students to disclose or document their immigration status, making inquiries of students or parents that may expose their undocumented status or engaging in any practices that ‘chill’ or hinder the right of access to public schools.”
School Ethics Act
A provision of the New Jersey School Ethics Act’s “Code of Ethics for School Board Members” states:
“I will uphold and enforce all laws, rules and regulations of the State Board of education, and court orders pertaining to schools. Desired changes shall be brought about only through legal and ethical procedures.”
School boards concerned about changes in federal practice concerning enforcement of immigration policy may adopt resolutions reaffirming the legal responsibility to educate all students residing within the community, and citing current law and regulations governing access to student records. While a school board may advocate for changes in federal policy, statements that indicate refusal to comply with federal or state law or regulation could be construed as violating the statutory Code of Ethics for School Board Members.
Sample Resolution Urging Restoration of DACA (December 2017)
Boundary Lines: New Jersey law helps districts sort through student residency issues (NJSBA School Leader, November/December 2017)
National School Boards Association statement on rescission of DACA (September 2017)
Sample Resolution Affirming Commitment to Educate All Children (Piscataway Public Schools, January 2017; Teaneck Public Schools, October 2017)