As states and municipalities have taken an increasing interest in immigration issues over the last few years, some legislatures and school districts have sought to restrict access to public education to immigrant children. This document discusses children’s fundamental right to education in the United States, regardless of immigration status.
What are the educational requirements for children in the United States?
Every state requires children to enroll in public or private education or to be home-schooled. While the age-requirement differs by state, all children are required to continue their education into their high school years.
Do all children regardless of immigration status have a right to a free public school education?
Yes. Children in the U.S., regardless of their immigration status, have a right under the Constitution and federal law to an elementary and secondary education in public schools.  School districts across the nation were recently reminded of this right of equal access to public education by the U.S. Department of Justice and the U.S. Department of Education in a Guidance Letter  dated May 8, 2014. “Under federal law, State and local educational agencies (hereinafter ‘districts’) are required to provide all children with equal access to public education at the elementary and secondary level.” Children do not need a green card, visa, passport, alien registration number, social security number, or any other proof of citizenship or immigration status in order to register for school.
Expanding upon the Civil Rights Act of 1964, the Department of Justice and the Department of Education prohibit discrimination based on race, color, or national origin in the provision of education. Additionally, the right to a free public education was established in 1982 with the U.S. Supreme Court’s decision in Plyler v. Doe.  In that case, the Supreme Court struck down a Texas state statute that barred undocumented children from public education. According to the majority opinion, the Texas statute was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment. (The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protection of the law.”)
In the decision, Justice Brennan, writing for the majority, notes the importance of education to preventing an underclass and promoting integration into society. The court stated, “it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” It also pointed out that America has long recognized public schools as “‘a most vital civic institution for the preservation of a democratic system of government’” and “as the primary vehicle for transmitting ‘the values on which our society rests.’” The court held that, “In sum, education has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”
Additionally, the court recognized the unfairness of denying education to undocumented children who lacked responsibility or culpability for their undocumented status. It stated that the Texas law “imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.”
Can school districts charge tuition to students who are not U.S. citizens?
No. As noted above, school districts are required to provide all children with equal access to public education at the elementary and secondary school level. Thus, a school district cannot charge a fee or tuition to immigrant students in their district if it does not charge non-immigrant students a fee or tuition to attend school in its district as such a practice would violate the Constitution and other federal law.
Are there other practices that a school may not engage in?
Yes. As immigrant children have the same right to attend school as other children, there is no reason for a school to inquire into a child’s immigration status. The school cannot ask questions or take actions that would deter parents from enrolling their children in school. Therefore, a school may not:
- Request students or parents to disclose their immigration status;
- Request documentation pertaining to the immigration status of students or parents;
- Request information only from a selective group of students (in other words information collection must be applied uniformly to all students);
- Require a Social Security Number from students or parents;
- Require parents to provide a state-issued identification; or
- Engage in any other enrollment practices that would chill or discourage a student’s access to education based on the actual or perceived citizenship or immigration status of a parent.
Can a school ask for a child’s Social Security Number?
Yes, a school can ask for a Social Security Number, but it is not required to ask for one, nor is a student or parent required to provide one. Under the Privacy Act of 1974, a federal, state, or local government agency cannot deny a person a right, benefit, or privilege provided by law because of the person’s refusal to disclose her Social Security Number. An agency can deny a right, benefit, or privilege only if disclosure is required by federal law or if it required disclosure prior to 1975. Federal law does not require a student to provide a Social Security Number to enroll in school. Therefore, a school cannot deny a student the right to attend school if the student does not present a Social Security Number. A school may request disclosure of a Social Security Number. Under the Privacy Act, however, the school must inform the parent that disclosure is not required but is voluntary, and that choosing not to provide a Social Security Number will not bar a child’s enrollment. Additionally, schools are required to explain to parents for what purpose they will use Social Security Numbers.
Can a school require proof of address?
Yes. Children are eligible for free public education only in the school district where they reside. Therefore, public schools have a right to ask for documents that prove that the student lives in the school district. Private schools also have valid, nondiscriminatory reasons to require a student’s address, for example, to learn if a student is registered in the parish. Therefore, private schools also have a right to require proof of address.
Can a child be denied enrollment if he or she does not have a stable or permanent address?
No. Under the Federal McKinney-Vento Homeless Assistance Act, homeless children, including homeless immigrant children, are exempt from providing proof of address in the school district.
Homeless children are those “who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement” and children of migrant workers. Schools are required to immediately enroll children who meet that definition.
Can a school require a child’s birth certificate?
When a child is enrolling, a school may require proof of the child’s name and age. In most states, parents can present a birth certificate or other reliable evidence, such as a baptismal certificate, a family Bible, or an affidavit from a person who knows the family. Parents must be made aware of these alternate options. A school cannot deny enrollment or attendance if a child cannot present a birth certificate or provides a birth certificate from another country.
Are schools required to submit information about undocumented students to the Student and Exchange Visitor Information System (SEVIS)?
No. The federal government created the Student and Exchange Visitor Information System (SEVIS) to monitor foreign students temporarily visiting the United States on a nonimmigrant student visa or other visitor visa. Such foreign students typically use an F-1 or J-1 visa. Schools that enroll these students must submit information to SEVIS. Undocumented students, on the other hand, do not have a visa that is monitored by the federal government. Therefore, schools are not required to submit information about undocumented students to SEVIS. In addition, as discussed below, sharing student information with officials outside the school may violate confidentiality and privacy laws.
If a school official learns about a child’s immigration status, can she disclose that information to a third party?
The federal Family Education Rights and Privacy Act (FERPA) protects the privacy of student education records. FERPA applies to any educational institution that receives funds under any program administered by the U.S. Department of Education. The law defines education records broadly to include both academic and personal information. Under FERPA, schools must obtain written permission from a student’s parents prior to disclosing education records. There are limited exceptions, including providing records to a student’s new school, complying with a judicial order or a lawfully issued subpoena, and sharing information with appropriate authorities in a health or safety emergency.
Schools that do not receive any funds from any program administered by the federal Department of Education are not subject to FERPA. Such schools may want to consider drafting and implementing their own confidentiality and privacy policies.
Along with the right to a free public K-12 education, do children living in the U.S. have other educational rights in the public schools?
Yes. There are a number of other educational rights that children and their families enjoy. These include: (1) the right to be free from unlawful discrimination; (2) the right of parents to understandable school information; (3) the right of parents to review student disciplinary actions; (4) the right of parents to inspect and review their child’s education records; (5) the right of parents to review school achievement data and participate in school improvement activities; (6) the right of English language learners to have an appropriate education; (7) the right of disabled students to receive special education services; and (8) the right of children to school choice and/or free tutoring. Additionally, immigrant children are required to receive the same secondary services as non-immigrant children, including transportation, school-based health care, free or reduced meals, and counseling.
Do the rules explained above also apply to unaccompanied children who are residing in the U.S. and awaiting completion of their immigration court proceedings?
Yes. Unaccompanied children who have a case pending before an Immigration Judge and are residing in local communities with a parent, family member, or other appropriate adult sponsor are guaranteed the same rights as any other child in the U.S.For more information about educational services for unaccompanied minors, please see Department of Education guidance at: http://www2.ed.gov/policy/rights/guid/unaccompanied-children.html 
How can school districts ensure that they remain within the law?
The Departments of Justice and Education encourage school districts to review their enrollment processes to make sure that they are not requiring information that would have a chilling effect on the enrollment of students. One indicator of questionable enrollment practices is “precipitous drops in the enrollment of any group of students.” The federal government requires that districts collect the same information from all enrolling students, make it voluntary to provide such information as a Social Security Number or state-issued ID, and treat all children equally regardless of perceived or assumed immigration status. Additionally, a school must not deny enrollment if children or their parents are unable to provide birth certificates or stable addresses within the school district.
If a child’s federal rights are being violated, what recourse does a parent have?
A violation of federal rights can sometimes be resolved by meeting with school or district officials, describing the problem, and agreeing to a plan to fix it. If this is not effective and a parent believes that his/her child’s rights are being violated, the parent can contact an attorney in his/her area, the Mexican American Legal Defense and Education Fund (MALDEF) national office at 1-213-629-2512, or the Office of Civil Rights of the U.S. Department of Education at 1-800-421-3481. MALDEF is a national leader in the area of federal education rights of students and their families.
This document was prepared by Karen Herrling in February 2013 and updated by Advocacy Intern Victoria Maqueda in October 2014. This document is for informational purposes only and is not intended as legal advice. For questions, please contact CLINIC’s State and Local Advocacy Attorney Jen Riddle at firstname.lastname@example.org  or (301) 565-4807.
  U.S. Department of Justice & U.S. Department of Education, Guidance Letter to school districts, May 8, 2014 at 1 available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405.pdf  (“Guidance Letter”)
  See Compulsory School Age Requirements, Education Commission of the States, April 2013, available at: http://www.ecs.org/html/Document.asp?chouseid=10703 .
  See Plyler v. Doe, 457 U.S. 202 (1982).
  Guidance Letter at 1.
  Id., 42 U.S.C § 2000c-6; See 28 CFR § 41.104(b)(2), 34 CFR § 100.3(b)(2).
  457 U.S. 202 (1982). See also National Education Association memorandum, Immigration Status and the Right to a Free Public Education, July 2007.
  Plyler v. Doe, 457 U.S. at 223.
  Id. at 221, citing Abington School District v. Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring); and Ambach v. Norwick, 441 U.S. 68, 76 (1979).
  Id. at 221.
  Id. at 223.
  See Plyler v. Doe, 457 U.S. 202 (1982) and LULAC v. Wilson, 908 F.Supp. 755 (C.D. Cal. 1995). See also, Guidance Letter at 3; Jaclyn Brickman, Educating Undocumented Children in the United States: Codification of Plyler v. Doe through Federal Legislation, 20 Geo. Immig. L.J. 385, 388 (2006); U.S. Department of Justice & U.S. Department of Education, Information on the Right of All Children to Enroll in School: Questions and Answers for States, School Districts and Parents, May 8, 2014 at 2, available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201405.pdf  (“Q&A”).
 Q&A at 4. See Privacy Act of 1974, Pub. L. No. 93-579, § 7, 88 Stat. 1896 (codified at 5 U.S.C. 55a note (Disclosure of Social Security Number) (1996)).
  Q&A at 4; Privacy Act of 1974, Pub. L. No. 93-579, § 7, 88 Stat. 1896 (codified at 5 U.S.C. 55a note (Disclosure of Social Security Number) (1996)).
  Id.
  Guidance Letter at 4 fn. 1.
  41 U.S.C. 11434a(2)(B)(i) & (iii).
  Guidance Letter to school districts at 4 fn. 1.
  Jaclyn Brickman, Educating Undocumented Children in the United States: Codification of Plyler v. Doe through Federal Legislation, 20 Geo. Immig. L.J. 385, 388 (2006).
  Q&A at 4
  Guidance Letter at 4.
  20 U.S.C. § 1232(g); 34 C.F.R. Part 99.
  34 CFR § 99.1(a).
  20 U.S.C. § 1232(g)(b)(1).
  20 U.S.C. § 1232(g)(b)(1).
  Information about the K-12 educational rights of children was obtained from a pamphlet prepared by the Mexican American Legal Defense and Education Fund (MALDEF), “Know Your K-12 Education Rights,” available at: https://www.maldef.org/assets/pdf/federal_education_rights_pamphlet.pdf 
  National School Board Association & National Education Association, Legal Issues for School Districts Related to the Education of Undocumented Children (2009).
 Guidance Letter at 3.