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Students' Rights to Equal Education [clarified]
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(Reprinted from the Superintendent's Bulletin Issue 99A-02)
School staff often have questions concerning the enrollment of
immigrant school-age children. The laws of Illinois and the United
States guarantee all students in Illinois access to a quality education.
This requires every district to guarantee all students equal access
to the full range of programs and resources. Equal access is influenced
by admission policies adopted at the district level and implemented
at the school level. By law, immigrant students are entitled to
the same access as nonimmigrant students. In Illinois today the
growing number of immigrant and non-English-speaking students and
changes in immigration law continue to generate questions and concerns
about how to fulfill administrative duties without infringing upon
children’s educational rights.
This information is provided to help districts understand their
role in regard to immigrant students. The State Board, with the
assistance of its Illinois Advisory Council on Bilingual Education,
has prepared the following answers to common questions about the
enrollment of immigrant and non-English speaking students.
 Who
has the right to access?
Existing law guarantees immigrant and non-English speaking students
a free public education from kindergarten through grade twelve up
until the age of twenty-one regardless of immigrant status. Additionally,
the U.S. Supreme Court ruled that undocumented children have the
same right as U.S. citizens and permanent residents to receive a
free public education.
Should Social Security numbers be required for enrollment?
Because the law prohibits any action which might have a "chilling"
effect on the right of access to schools, districts must not require
parents or adult care-takers to provide information concerning their
or their children's immigration status. Policies or procedures which
condition services or benefits by requiring a child's or a parent's
Social Security number must be amended because these practices have
the effect of exposing the immigration status of undocumented students
or their parents. If a number is needed for identification or administrative
purposes, to avoid infringing upon undocumented students rights,
districts should assign a school-generated identification number.
Similarly, when implementing residency policies, care must be taken
to ensure that parents or adult caretakers can establish residency
within the district by means which will not force them to, albeit
indirectly, reveal their immigration status. Thus, districts may
accept as proof of residency, but cannot mandate, that parents or
adult caretakers provide either an Illinois driver’s license
or a state identification card which require Social Security numbers.
What
might be considered for determining residency?
Among immigrant and non-English speaking families, it is not uncommon
to find children who do not live in the same household as their
parents. To safeguard immigrant students' right to a free public
education, LEAs must not conclude that children who live within
the district, but apart from their parents, must be charged tuition
as if they were a non-residents.
Can
districts mandate legal guardianship?
Even when it's undisputed that a child resides in the district,
but questionable whether the child lives apart from the parent simply
to access educational programs, districts must not apply inflexible
rules to determine residency. Districts cannot mandate adult caretakers
or relatives with whom a child lives to establish legal guardianship
as a condition for gaining access to the district's schools. Districts
may require reasonable assurance from the responsible adult caretaker
that they accept responsibility for the child. This may be done
through a notarized affidavit.
Can
F-1 Visa students be charged tuition?
The F-1 Visa Program allows nonimmigrant foreign students from
outside the U.S. to apply for student visas to attend our public
schools. Recent changes to the Immigration and Nationality Act require
districts to charge out-of-district tuition and limit attendance
to twelve months. These changes do not affect J-1 (foreign exchange)
students, F-2 (dependents of F-1) students, or students whose parents
are here as diplomats, researchers, or foreign workers. Students
attending private schools are not affected by the amendment. This
amendment does not affect immigrant students residing in the U.S.
nor does it alter a district’s obligations to undocumented
children since the changes made to the F-1 Visa Program only affect
students specifically seeking F-1 status from outside the U.S.
Are
immigrant students eligible for federal programs?
Schools are required to provide undocumented immigrant students
the same benefits and services made available to other students.
Therefore, when determining eligibility for free or reduced lunch
and/or breakfast programs under the School Lunch Act, do not reject
applications which do not have the parent’s Social Security
number. Parents without Social Security numbers need only indicate
on the application that they do not have a number. Districts must
make it clear that any and all information provided is used solely
to obtain federal funds.
Should LEAs enforce immigration laws?
School personnel, especially building principals and those involved
in student intake activities, have no legal obligation to enforce
U.S. immigration laws. Conversely, the Immigration and Naturalization
Service has no legal authority to determine or infringe on district
residency policies.
Are
funds available to help districts?
Districts heavily affected by the enrollment of immigrant students
(documented and undocumented) may qualify for Federal Emergency
Immigrant Education Program funds through the State Board and should
take full advantage of them. Districts may also be eligible for
funding through the State Transitional Bilingual Education Program
for limited English speakers or the federal Title VII program.
For More Information
If you have any questions, call 312/814-3850.
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