The recent frenzy of anti-immigrant xenophobia has produced a host of local ordinances aimed at ridding communities of "undocumented aliens" and their children who attend public schools. Can they do that?

 

The jury is still out on the legality of local ordinances that punish businesses that hire undocumented workers and landlords who rent to them. A federal judge in Pennsylvania last summer struck down such a law. Generally, only the federal government has the power to regulate immigration.

 

But what about the children of undocumented workers: Can they be banned from public schools? On this issue, the law is crystal clear: In the 1982 landmark decision Plyler v. Doe, the U.S. Supreme Court decreed that state and local school districts cannot deny admission to undocumented immigrant children. To do so, the Court declared, would violate the constitutional right to Equal Protection and deny these children the "basic tools" necessary to make their way in life.

 

Because the Plyler decision is based on the federal Constitution, it is now the "law of the land." This means that neither Congress nor any state legislature nor any school board has the power to overrule the case and deny a free, public education to undocumented immigrant children. In 1994, for example, voters in California passed Proposition 187, a ballot initiative that would have prohibited "illegal aliens" from attending the state's public schools. A federal court immediately declared the law unconstitutional under Plyler.

 

But can teachers be conscripted into the ranks of the Immigration and Customs Enforcement (ICE) police and forced to verify the documented status of students who seek to enroll in school? The answer is no. That was one of the rulings of the California case involving Proposition 187.

More recently, a Hispanic advocacy group successfully challenged a suburban Chicago school district's refusal to register an undocumented student and then ran a series of public service announcements in Chicago reminding parents that school officials cannot ask students about their immigration status.

 

Undocumented students also have rights under federal laws, including NCLB, that prohibit schools from discriminating on the basis of national origin and that require schools to take affirmative steps to help English Language Learners (ELLs) overcome language barriers.

In response to a new business item adopted at the 2007 Representative Assembly, the NEA Office of General Counsel prepared a comprehensive memorandum titled "Immigration Status and the Right to a Free Public Education." The memorandum offers practical advice for NEA members who may confront some of the special problems of undocumented students and is available at

http://www.nea.org/neatoday/0801/images/ImmigrationStatusandRights.pdf

— Michael D. Simpson
NEA Office of General Counsel