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July 12, 2017 Articles

Closed Doors and Dead Ends: Ensuring Access to School for All Children

By Justin Deabler, Diane Lucas, and Ajay Saini

An increasingly hostile climate toward immigrants and refugees has demanded a forceful response from advocates and public authorities in order to ensure a basic American right—that the schoolhouse doors remain open to all students regardless of citizenship or immigration status. Across the country, from New York to Texas to Colorado, immigrants have faced barriers to school enrollment. Many students have been blatantly turned away by school registrars, while other denials occur through subtler means like onerous and chilling enrollment procedures.

The Civil Rights Bureau of the New York State Office of the Attorney General (OAG) has long worked to ensure that immigrant and refugee communities have equal educational access, as guaranteed by state and federal law. The right to such access, irrespective of citizenship or immigration status, harkens back to the landmark 1982 ruling by the U.S. Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982). There the Court held that state and local officials cannot deny enrollment to a student based on his or her immigration status. From 2014 through 2017, the OAG engaged in a multiphase enforcement initiative to make good on the promise of Plyler and to ensure equal educational access for immigrant and refugee students. The strategy involved developing joint guidance with the chief educational regulator for our jurisdiction; advising on a significant revision of regulations governing school enrollment; over 20 enforcement actions against individual districts for noncompliance; and, for the first time in the OAG’s history, filing and settling a federal civil rights lawsuit against a district over its discriminatory enrollment and academic placement practices.

The initiative was effective in confirming the OAG’s jurisdiction to bring federal civil rights actions against public school districts, and in bringing systemic change to the more than 700 districts educating students across New York. Moreover, as the OAG continues to tackle emerging challenges facing immigrant communities—e.g., the fear of federal immigration enforcement being conducted in schools—the initiative has served as a model for effective enforcement action, partnership with other public regulators, and guidance to school districts and local authorities.

This article offers the OAG’s experience as a case study in public civil rights enforcement, with an eye toward replicating its strategies—in both the public and nonprofit/advocacy sectors—to address evolving problems facing immigrant communities. We discuss pertinent sources of law and enforcement strategies, and then focus in more detail on questions of federal jurisdiction and standing that arose in litigation settled last year that may be pertinent to other attorneys general considering litigation as a vehicle of federal civil rights enforcement. Our hope is that the initiative will serve as a model for enforcement strategies that state and local officials across the United States can utilize to protect immigrants’ rights, in a particularly troubling national atmosphere.

OAG’s School Enrollment Initiative
The OAG’s school enrollment initiative began in fall 2014, as a response to the surge of unaccompanied minors resettling in the United States. During the spring of 2014, tens of thousands of children from Central and South America crossed the U.S.-Mexico border seeking refuge from gang violence or other social breakdown in their home countries. These children, unaccompanied by parents or family members, were resettled in communities across the United States while they awaited their immigration proceedings. The majority of unaccompanied minors went to states where immigrants have traditionally settled, like Texas, New York, California, and Florida. A large number have also been sent to Maryland, Virginia, Georgia, and Louisiana. In total, 5,500 unaccompanied minors resettled with extended family and friends in New York, with 53 percent in Nassau and Suffolk counties and 35 percent in New York City.

As reported in local and national media, with this surge came a response from some school districts, which used existing requirements—or passed new requirements—to create barriers to the enrollment of unaccompanied minors and of immigrant students more generally. These requirements typically sought, as a condition of enrollment, items that these youth would not have with them or that immigrant families would have difficulty obtaining: (1) a Social Security card; (2) visa documentation or other documents concerning immigration status; (3) an original “raised seal” birth certificate from the youth’s country of origin; (4) translated academic records from the country of origin; (5) a guardianship or equivalent order from a U.S. court terminating the rights of the youth’s parent(s) in his or her country of origin; (6) a statement from a landlord under penalty of perjury, swearing to the residency of the youth and all other cotenants in a housing unit; or (7) onerous, multiple, and highly specific documents to prove residency.

These barriers to enrollment directed at immigrant students violated the Equal Protection Clause of the U.S. Constitution. In finding that all students have equal access to a public education in Plyler, the Supreme Court emphasized the importance of educational opportunity in “prepar[ing] individuals to be self-reliant and self-sufficient participants in society.” 457 U.S. at 222. The Court went on to state that “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” Id. at 223. Given this paramount importance, the Court found that the right to an education “must be made available to all on equal terms.” Id.

Recognizing that enrollment barriers created by various school districts across the state posed an immediate constitutional problem, the OAG began crafting a strategy to address the issue. The OAG was mindful of the widespread nature of the problem and the fact that investigations of individual school districts, without a more comprehensive approach, could amount to mere drops in a bucket. Our office’s first step was to build upon an existing relationship with the primary education regulator in our state, the New York State Education Department (NYSED), and together our agencies announced a joint compliance initiative in October 2014. The initiative rolled out in the following phases.

First, the OAG provided feedback to NYSED in the crafting of proposed regulatory amendments for consideration by the New York State Board of Regents, in order to clarify how school districts should conduct enrollment in compliance with state education law and the U.S. Constitution. Those amendments were adopted on an emergency basis in December 2014, February 2015, and April 2015. The amended regulation took effect as a permanent rule on July 1, 2015. Among other things, the revised regulation clarified that districts must immediately enroll any student who presents himself or herself at school, and then have three business days to obtain necessary documentation to finalize that enrollment. The regulation explained that districts should not, as a condition of enrollment, require the types of documentation listed above that would tend to reveal the citizenship/immigration status of a youth or guardian, that functioned as a form of veiled code enforcement, or that placed burdens of translation on a youth or guardian. The regulation also provided an expanded, nonexhaustive list of acceptable forms of proof of age and residency and required that all school districts disclose this list to the public. See N.Y. Comp. Codes R. & Regs. tit. 8, § 100.2(y).

Second, with the assistance of NYSED and civil rights advocates, our office identified 20 school districts across New York whose enrollment requirements presented facial violations of the Fourteenth Amendment’s Equal Protection Clause, as interpreted by the U.S. Supreme Court in Plyler. These districts required as a condition of enrollment, among other things, a Social Security card or number, a valid visa, or other documentation concerning the immigration status of a youth (or guardian of such youth) seeking to enroll, or made written inquiries about the national origin of students seeking to enroll. After making contact with these districts, the OAG entered into settlement agreements with all 20 school districts that specified relief including the development of new enrollment materials, policies, and procedures; training of all staff who touched the enrollment process; and regular reporting of enrollment denials to the OAG, for a three-year period.

Third, the OAG initiated investigations of three districts about which our office had received complaints. The first involved a school district that had created a “wait list” of approximately 50 students, many of them unaccompanied minors, who had been turned away after attempting to enroll, and additional students (also immigrant and unaccompanied minors) who signed in for attendance and then were transported to an off-site location where they were warehoused for the duration of the school day. The second involved a new element beyond enrollment barriers: the academic diversion of immigrant and English language learner (ELL) students. In that case, the school district had adopted a policy of diverting limited English proficient students over the age of 16 to an adult learning center to study ESL, with no chance of obtaining a high school diploma. In the third investigation, the school district used residency interviews and highly restrictive interpretations of residency regulations to deny enrollment to unaccompanied minors, including one who had fled conditions of gang violence in El Salvador. These investigations were initiated under equal protection guarantees within the federal and New York constitutions, federal antidiscrimination statutes, the New York State Education Law, and state education regulations concerning both student enrollment and districts’ obligations to provide bilingual education to their students. See, e.g., 42 U.S.C. §§ 2000c-6, 2000-d; 28 C.F.R. § 42.104(b)(2); 34 C.F.R. § 100.3(b)(2) (Titles IV and VI of the Civil Rights Act of 1964 and associated federal regulations); 20 U.S.C. § 1703(a), (e), (f) (Equal Educational Opportunities Act of 1974); N.Y. Educ. Law §§ 3202(1), 3205; N.Y. Comp. Codes R. & Regs. tit. 8, §§ 117, 154, 200 et seq.

The investigations resulted in settlements with each district mandating relief that included—in addition to the elements set forth in prior settlements—the hiring of an internal enrollment/academic placement ombudsman to oversee those functions within the districts, the hiring of an independent monitor to report to the OAG, and compensatory services to all students who were delayed or denied enrollment or were diverted into non-degree-bearing academic programs.

Federal Litigation and the Parens Patriae Doctrine
In April 2015, the OAG opened an investigation into another school district, the Utica City School District, based on complaints that the district had a long-standing policy of automatically diverting older ELLs—or students the district perceived to be such—into non-degree-bearing ESL-only programs. For decades, the city of Utica has been a major refugee resettlement center thanks to the efforts of a local refugee nonprofit organization based there. The allegation that the district maintained a multiyear policy of exclusion for older immigrant students potentially affected a substantial number of youths in Utica. Despite efforts at settlement in July 2015, the OAG and the district could not reach agreement. In November 2015, the OAG sued the school district, its board of education, and its superintendent in the U.S. District Court for the Northern District of New York. The complaint alleged claims under the federal and New York constitutions, the New York Education Law and associated regulations, Title VI, and the Equal Educational Opportunities Act. This was the first time the OAG had sued a school district in federal court.

In February 2016, the defendants filed a motion to dismiss, arguing chiefly that the OAG lacked standing to bring suit. In opposing the motion, our office argued that it had standing pursuant to the parens patriae doctrine. The doctrine reflects the common-law principle that a sovereign, as “parent of the country,” may step in on behalf of its citizens to prevent injury to those who cannot protect themselves. The doctrine was articulated most recently by the U.S. Supreme Court in 1982 and, while it varies somewhat by federal appellate district, generally requires a state attorney general to assert (1) a “quasi-sovereign interest” that (2) affects a substantial segment of its population and, in some jurisdictions, (3) an injury for which affected individuals could not obtain complete relief through a private suit. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982); New York ex rel. Abrams v. 11 Cornwell Co., 695 F.2d 34 (2d Cir. 1982), modified on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc) (upholding OAG’s standing in suit protecting individuals with mental disabilities, pursuant to Civil Rights Act of 1871). The OAG cited to the substantial body of case law that identifies the protection of its residents from discrimination as a paradigmatic quasi-sovereign interest.

In April 2016, the district court denied the defendants’ motion to dismiss in its entirety. See New York ex rel. Schneiderman v. Utica City Sch. Dist., 177 F. Supp. 3d 739 (N.D.N.Y. 2016). In doing so, the court recognized the OAG has a “unique status as the representative of the greater public good and [a] concomitant mandate to secure wide-ranging relief that will inure to the direct and indirect benefit of the broader community.” Id. at 753–54. Following resolution of the motion, the OAG and the defendants initiated settlement talks with the magistrate judge. In July 2016, the parties filed and the district court so ordered a consent decree mandating relief similar to what the OAG had obtained in its prior investigations of school districts.

Next Steps in Protecting the Rights of Immigrant Students and Communities
The OAG’s school enrollment initiative may serve as a model for effective government enforcement action on educational access, as well as on other issues relating to immigrants’ rights. From the moment the OAG identified the discriminatory conduct in October 2014, and identified a potential constitutional violation, the office pursued several simultaneous strategies to encourage systemic change. Between issuing joint guidance letters with NYSED, advising on the revision of relevant regulations, and initiating enforcement actions and litigation, the OAG was able successfully to reform district enrollment practices in a manner that protected the rights of immigrant students. Moreover, the OAG also succeeded in confirming its jurisdiction to bring federal civil rights actions against school districts. The initiative described above could be adopted by state and local authorities across the United States as, sadly, New York is not the only state whose school districts erect barriers to enrollment for immigrant students.

The OAG’s school enrollment initiative also offers insights to state and local officials across the country as they develop strategies to address new concerns affecting immigrant communities. Many such communities have expressed concerns about widespread deportation raids and rising rates of hate crimes against immigrants or those perceived to be such. The OAG has addressed these concerns, in part, by working collaboratively with other state agencies and issuing guidance to urge local government authorities to comply with their constitutional obligations. For example, in November 2016, the OAG issued guidance to local district attorneys, explaining how and when to effectively prosecute hate crimes. Similarly, in January 2017, the OAG issued guidance to municipalities explaining how to comply with their constitutional duties when processing detainer requests from federal immigration authorities. And in February 2017, the OAG partnered again with our state education regulator to issue a joint letter to school districts explaining their constitutional obligations to immigrant students, and providing guidance to districts faced with the prospect of federal immigration authorities targeting students on school grounds. In taking these steps, the OAG has relied on its experience during the school enrollment initiative to inform strategy and determine which tools would be effective, including coordinated guidance from pertinent public agencies and regulators.

Our office has found that, in order meaningfully to protect the rights of all students, we must use a multifaceted approach that emphasizes cooperation among public entities, nonprofit organizations, and other advocates. It is our hope that other state and local officials, as well as advocates, will utilize the model and strategies described here to enforce the rights—increasingly threatened—of immigrant communities within their own jurisdictions.

Justin Deabler, Diane Lucas, and Ajay Saini are assistant attorneys general in the Civil Rights Bureau of the New York State Office of Attorney General. They are recipients of the Louis J. Lefkowitz Memorial Award for outstanding performance on behalf of the People of the State of New York, in recognition of the initiative described in this article.

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