March 01, 2017

Protecting Immigrant Children’s Right to Education

Priya Konings

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In 1982 the U.S. Supreme Court issued a landmark decision affecting immigrant children and their right to public education in Plyer v. Doe. The decision held that immigrant children have just as much right to a free public education as U.S. citizen children.1 It struck down a law created by the Texas legislature denying funding to local school districts to educate undocumented immigrant children from grades kindergarten to 12th grade.2

The Supreme Court based its decision on the equal protection clause of the Constitution, noting “we are unable to find in the congressional immigration scheme any statement of policy that might weigh significantly in arriving at an equal protection balance concerning the State’s authority to deprive these children of an education.”3 In other words, the undocumented status of these children does not “provide a rational basis for depriving them an education.”4 Rather, “[b]y denying these children a basic education,” the Court said, “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. Such discrimination can hardly be considered rational.”5

This historically significant decision ensures all children in the United States have the right to a free, appropriate public education. Even the dissent noted it “is senseless for an enlightened society to deprive any children—including [unauthorized immigrants]—of an elementary education,” in part because “the long-range costs of excluding any children from the public schools may well outweigh the costs of educating them.”6

Despite this landmark decision, one million undocumented immigrant children in the United States face serious challenges accessing their right to education.7 We often think the primary challenge these immigrant children face is the imminent risk of deportation. This is a pressing issue, but many other problems affect their day-to-day life. Among these challenges are issues related to accessing education, ranging from laws aimed at attempting to curtail the education rights of immigrant children to local administrators seeking to institute ad hoc mechanisms to bar immigrant children from receiving an education. 

This article examines the challenges undocumented immigrant children face in receiving an appropriate education, how these challenges can affect their ability to obtain legal relief in the United States, and some possible solutions. 

Education Challenges for Undocumented Children

Enrollment 

One primary barrier children in certain jurisdictions face to enrolling in school is proof of residency. In the District of Columbia, for example, any parent attempting to enroll their child in school must prove residency in the District. Immigrant parents are often barred from obtaining a driver’s license, and due to a lack of credit history, are often subletting or renting a room from a landlord without a formal lease agreement. As such they lack the proof needed for enrollment, and their children are not able to enroll in school. 

Similarly, some jurisdictions have illegally required that the parent or child provide a social security number before enrollment can be completed.8 Anyone who is undocumented will not have a social security number. Despite being illegal, and regardless of the fact that the Department of Education and Department of Justice have repeatedly reminded school districts that such a requirement is illegal, school districts have been caught over and over again implementing such restrictions.9

An even greater problem has emerged in certain counties in Virginia, where schools require the adult enrolling the child to provide proof of custody of the child. This barrier to enrollment is illegal in most states, including Virginia.10 Many immigrant parents and kinship caregivers lack custody papers and cannot access the court system to obtain such papers. School districts in Virginia have used this as a way to prohibit school enrollment. Legally, as long as a student can show he/she is a bona fide resident and not living there for the purpose of attending school, the student should be immediately enrolled.11 Custody papers are not required, but because many adults are unaware of this they often attempt to seek a custody order from a family court, which can jeopardize access to immigration relief for many children, specifically Special Immigrant Juvenile Status (SIJS).

SIJS is one of the ways immigrant children can pursue legal status in the United States. The designation SIJS may be applied to children found by a state court to be unmarried, under age 21, placed in the custody of an individual or government entity, and with whom reunification is not viable due to abuse, abandonment or neglect by one or both parents. The state court must also find it is contrary to their best interest to return to their country of origin. These findings are often made by a state court judge at a custody hearing. 

Parents and caregivers may be forced into family court prematurely, without consulting an immigration attorney, simply because the school insists the caregiver must obtain a court order for custody to enroll the child in school. These caregivers miss an opportunity for the family court to determine if it can make SIJS findings, which could lead to legal status for the child. Once a family court has granted custody of a child to a caregiver, that caregiver can no longer use a sole custody petition as vehicle to enter the court and ask for SIJS findings. Unless the caregiver knew to inquire about such findings from the court, which is unlikely unless the caregiver consulted an immigration or family law attorney, the caregiver would be precluded from accessing relief designed to protect abused and neglected immigrant children. 

The restrictions and barriers immigrant children face when enrolling in school are cumbersome and arbitrary, and result in either the child not being enrolled in school or being precluded from obtaining legal relief for their immigration status. 

Language Barriers

Once children do get enrolled, language barriers are common. A large number of immigrant children arriving in the United Stated speak Spanish.12 They are often teenagers who do not speak any English. Rather than receiving assistance, many of these children are pushed through the system with one hour of English language skills a day, forced to spend most of the day in a classroom where they cannot understand the teacher. According to sociologist Min Zhao, English mastery is the single most important prerequisite for academic success and socioeconomic assimilation of immigrant children in the U.S.13 Without appropriate English language training, these children are largely destined for academic failure.14

The law upholds this belief that English language instruction is essential to success in the U.S. public school system. Nearly a decade before Plyer v. Doe was decided in 1982, the Supreme Court made an equally pivotal decision in a case pertaining to public education. This case was Lau v. Nichols, where the Court determined that school systems must provide English language instruction, and the failure to do so prohibits children from effectively participating in public education, which violates the Civil Rights Act of 1964.15

Despite this, the majority of immigrant children are not receiving the level of English instruction they need to succeed. Many of them fall further and further behind, especially because their caregivers’ lack of familiarity with U.S. law and of the requirement that school districts are to provide appropriate language learning skills prohibits them from effectively advocating on behalf of the child. 

Interrupted Educations

The United States receives large numbers of unaccompanied minors from El Salvador, Guatemala, and Honduras.16 In these countries, gangs are as powerful—if not more powerful—as the government, and in many respects are operating in lieu of a government.17 Gangs’ operations have resulted in widespread corruption and violence. Pre-teens and teens are common targets for gangs, which constantly search for new members to grow their alliance. As a result, many children drop out of school to avoid harassment and recruitment from gang members on their way to and from school, and during school hours. Parents and teachers are powerless against the gang members, and reporting to the police has no effect as the gangs are more powerful.18 As such, many children in these countries are unable to attend school for months, or even years at time.

Once in the U.S., immigrant students, especially teenagers, often are pushed toward “separate but unequal alternative programs.”19 Some schools will argue that because these kids will never graduate on time, they should attend an alternate program.20 For example, the Associated Press has found that in “at least 35 districts in 14 states, hundreds of unaccompanied minors from El Salvador, Guatemala, and Honduras have been pressured into attending alternate programs that are essentially an academic dead end.”21

Many of these programs only teach English, thereby providing the child no additional education or supports in their native language, and some offer classes but no English language learning classes, thereby rendering any instruction offered useless. While the alternate programs can result in a GED, many do not ensure the child graduates with a certificate. These teenagers have a right to attend public education until age 21 (most states provide a free public education up to age 21), but sadly, because they are unaware of their rights, they are forced into alternative education programs and often do not successfully complete high school.22

Inability to Access Special Education and Social Services

Many children arriving in the United States from Central America have witnessed or experienced extreme violence and trauma. El Salvador has the highest murder rate in the world, at almost 116 per 100,000, more than 17 times the global average.23 A quarter of all Salvadorans have been victims of crime.24 Schools in the U.S. are ill-equipped to accommodate children dealing with the impact of regular exposure to serious, ongoing violence in their home countries. 

In the U.S., immigrant children are further hampered by cultural barriers, poverty, undocumented parents who are afraid of accessing public benefits, and mistrust of the system that “puts them at risk for developmental delays and poor academic performance.”25 Rather than requesting that students be evaluated to see if they have a qualifying disability that requires an individual education program to implement special accommodations and services, or seek other academic and social-emotional supports such as counseling, therapy, tutoring, or a behavioral plan, educators often blame the child for not keeping up in school. Some teachers insist that once the children learn English they will catch up to their nonimmigrant peers, rather than providing them with the services they are legally required to provide. But without appropriate English language classes, as well as recognition and analysis of the effect of interrupted education, and an assessment of the trauma and its effects on children, these kids rarely get up to speed with their classmates. 

Financial Aid

Notwithstanding the many challenges, some immigrant children prevail and seek higher education. These children face further roadblocks. The seminal case on educational rights of immigrant children, Plyer v. Doe, did not address financial aid for higher education. There is no federal financial aid for undocumented students, and many states do not offer state financial aid to undocumented immigrants.26 Some private colleges do offer financial aid, but such aid is often underadvertised, and there is little outreach to immigrant families to make them aware of these opportunities.

Many undocumented immigrant children come from impoverished families, largely because their families are unable to work legally in the U.S. Their dreams for higher education are often unrealized due to financial constraints. The reality of this situation seems to fly in the face of public policy considerations: societal progress is made by children receiving higher education, whether that child is a U.S. citizen or an undocumented immigrant. 

 

Recommendations

Remove school enrollment barriers.

School districts and individual schools need to eliminate barriers to enrolling immigrant children. All children have a right to a free, appropriate education, and they should be unfettered in seeking an education. Arbitrary requirements for enrollment such as custody papers, lease agreements, and social security numbers need to be eradicated immediately. Alternative methods for showing residence should be clearly outlined for all front-line school staff. The McKinney-Vento Education of Homeless Children and Youth Assistance Act of 1987 outlines procedures for enrolling homeless youth in school, and similar procedures could be followed for immigrant children who face similar challenges. 

Provide English learning programs.

Advocacy must be done to ensure school districts provide comprehensive English learning programs that are effective. Their programs need to be regularly evaluated to ensure they are providing immigrant children with meaningful instruction. The quality of instruction and programmatic features in a whole-school approach to instructing English learners is what matters most for promoting academic achievement. 

There needs to be language and literacy instruction, integration of language, literacy, and content instruction in secondary schools, cooperative learning; professional development, parent and family support teams, tutoring; and monitoring implementation and outcomes. Further, because more and more English learners are enrolling in public schools, schools must improve the teaching skills of all K–12 educators through comprehensive professional development.27

In fact, the Every Student Succeeds Act (ESSA),28 signed by President Obama in December 2015, has specific provisions for addressing the needs of English language learners. The law requires that English proficiency standards address the different English proficiency levels of English learners, so that state programs can be held accountable for providing English language programs that are appropriate and designed to improve English language proficiency amongst non-English speakers.29 States need to implement programs to ensure compliance with this federal law. 

Offer therapeutic services for immigrant children who have experienced trauma.

Children who experience trauma may have a harder time reaching their full educational potential without specialized assistance. As noted above, many of the children arriving from Central America have experienced some kind of trauma, either in their home countries or on their journeys to the United States. 

In some jurisdictions, like Montgomery County, Maryland immigrant students receive counseling regarding trauma they experienced. Schools in this area refer kids to local nonprofits that have Spanish-speaking counselors for specific types of trauma they may have experienced, such as sexual abuse. 

The Montgomery County school district has also budgeted money to provide designated counselors for speakers of other languages to “identify educational, social and cultural needs of students and their families that can be met using school, community, and other resources. They support school staff in meeting the special needs of diverse socioeconomic students.”30 Such counselors are trained in conflict resolution related to cross-cultural misunderstandings, as well as assessing the emotional needs of immigrant children.31

Montgomery County also has a multilingual Parent Outreach Team that provides services in the community to parents of English as second language (ESOL) students to help them engage fully in the school system instructional program.32 By implementing such programs, schools help immigrant children work through cultural barriers and reach their educational potential. 

Provide legal representation for immigrant children.

One top concern for undocumented children, and one reason they are unable to access the services and tools to excel in their studies, is their undocumented status. While schools need to improve the quality of education provided to undocumented students, many immigrant children are also eligible for legal relief. Finding them legal representation so they can access the law designed to protect them and provide a path to citizenship can be life-changing for many immigrant children, and their families who live in fear of deportation. Ensuring children in immigration proceedings are provided an attorney, much like children in the criminal justice system, is critical. Until that happens, schools need to work with local nonprofits and immigration law organizations to help undocumented children access the laws that were created to protect them. 

 

Conclusion

A strong childhood education provides the basis for a future that is stable and secure. Communities and society at large benefit when all children receive an appropriate education. Immigrant children are forming larger and larger segments of our communities. Implementing laws and programs that encourage and facilitate the ability of these children to succeed in school helps everyone. By developing ways to include everyone in our public education system, our communities can reach their true potential. Advocates can reach out to local schools, nonprofits, and state and local governments to promote education success for immigrant children. 

Priya Konings, JD, is a senior pro bono coordinating attorney at Kids In Need of Defense, Inc. (KIND), where she works to secure legal representation for unaccompanied immigrant minors who came to the U.S. to escape abuse, neglect, and persecution in their home countries. Before joining KIND she provided direct representation to abused and neglected children in the Maryland and D.C. foster care systems at the Law Offices of Darlene A. Wakefield, P.A. She graduated from the University of Maryland School of Law and the University of California, Los Angeles. 

Endnotes

1. Plyer v. Doe, 457 U.S. 202 (1982). 

2. Id. 

3. Id. at 224.

4. Id. at 225.

5. Id. at 223, 224.

6. Id. at 242.

7. Tamer, Mary. “The Education of Immigrant Children,” Usable Knowledge (Harvard Graduate School of Education newsletter), Dec. 11, 2014.

8. Waslin, Michelle. Undocumented Children Face These Challenges in Accessing Public Education, April 14, 2016.

9. Southern Poverty Law Center. “Alabama Schools Violating Federal Law by Discouraging Enrollment of Immigrants,” May 21, 2014.

10. Williams-Mbengue, Nina and Kyle Ramirez-Fry. “Educational and Medical Consent Laws.” National Conference of State Legislators, March 17, 2014. <>

11. Id. 

12. Gomez, Alan. “Children from Central America Flood U.S. Border—Again.” USA Today, Sept. 23, 2016. 

13. Zhao, Min. “Growing Up American: The Challenge Confronting Immigrant Children and Children of Immigrants.” Annual Review of Sociology 23, 1997, 63–95.

14. Id. 

15. Lau v. Nichols, 414 U.S. 563 (1974). 

16. “Continuing Arrivals of Large Numbers of Unaccompanied Children to U.S. No Surprise as Root Causes and Protection Remain Unaddressed.” Kids In Need of Defense, October 19, 2016; ProCon.org. “Unaccompanied Immigrant Children – Demographic Data,” January 27, 2016. 

17. Farah, Douglas. “Central American Gangs All Grown Up.” Foreign Policy, January 19, 2016. 

18. Immigration and Refugee Board of Canada. “5.1 Police,” Issue Brief: El Salvador Information Gathering Mission Report Part 1, Gangs in El Salvador and the Situation of Witnesses of Crime and Corruption, September 2016. 

19. Burke, Garance and Adrian Sainz. “AP Exclusive: Migrant Children Kept From Enrolling In School.AP: The Big Story, May 2, 2016. 

20. Id. 

21. Id. 

22. National Center for Education Statistics. “Compulsory School Attendance Laws, Minimum and Maximum Age Limits for Required Free Education,” 2015.

23. Muggah, Robert. “It’s Official: San Salvador is the Murder Capital of the World,” L.A. Times, March 2, 2016. 

24. U.S. Department of State. El Salvador 2016 Crime & Safety Report, 2016. 

25. Tienda, Marta and Ron Haskins. “Immigrant Children: Introducing the Issue.” The Future of Children, spring 2011, 7.

26. College Board. Advising Undocumented Students, 2016. 

27. Tienda & Haskins, spring 2011, 10. 

28. Pub. L. No. 114-95 (2015-2016).

29. Counsel of Chief State School Officials. “Major Provisions of Every Student Succeeds Act Related to the Education of English Learners,” February 2016. 

30. “ESOL Parent/Community Coordinator Class Description.” Montgomery County Public Schools, Operating Budget, Revised July 1992. 

31. Montgomery County Public Schools, ESOL/Bilingual Programs