Schools have no legal right to ask about a child’s immigration status

Every day, we entrust our schools with nurturing our nation’s most precious resource – our children.

We trust that everyone from administrators to principals to teachers and school staff will do whatever is necessary to protect their health, safety and well-being, and to ensure that every child has an equal opportunity to learn.

That trust includes making sure that schools act responsibly to protect civil rights, as mandated by a landmark 1982 Supreme Court ruling that established the right of all children to a free K-12 education, regardless of immigration status.

Yet now, testimony by our nation’s top education official, someone who is sworn to uphold and enforce mandates like this one – Secretary of Education Betsy DeVos – threaten to erode, if not eliminate, that responsibility.

On Tuesday, DeVos told the U.S. House Committee on Education and the Workforce that it’s up to local schools to decide whether to report the immigration status of students to U.S. Immigration and Customs Enforcement. That’s undeniably false, and undeniably dangerous.

The 1982 Supreme Court ruling in “Plyler v. Doe” said that public school districts must provide every child a free public education from kindergarten through high school regardless of immigration status. This means schools not only must enroll every child, but that they also must ensure that there are no policies, punitive measures or other threats that would, intentionally or not, discourage or prevent a child from enrolling.

That includes imposing rules that would make parents so fearful that they might opt to keep their children out of school.

District superintendents, administrators and lawyers have been governed by this ruling for more than 35 years. So it was very concerning to the Mexican American Legal Defense and Educational Fund, which represented the plaintiffs in the Plyler case, when DeVos cavalierly heightened fears of U.S. Immigration and Customs Enforcement raids on school campuses with her callous and ill-informed testimony.

It’s especially troubling amid evidence that DeVos isn’t the only one who’s ignorant about the ruling. In 2017, MALDEF discovered that many Illinois districts follow registration policies that fail to adhere to the ruling.

Last year, MALDEF was alerted that a northern Illinois district was requiring state identification cards or driver’s licenses to register and enroll a child in school. Put simply, asking undocumented parents to present documentation for which they are ineligible will inevitably result in children being denied access to the schoolhouse — a denial the Supreme Court ruled against.

With that violation as a basis, MALDEF conducted an informal survey of registration requirements in more than 250 school districts in Cook County and northern Illinois. We examined whether districts were in compliance with Illinois state registration requirements, including accepting a variety of identifications. Our goal was to identify districts that were violating Plyler.

While we found that most were in compliance with the Supreme Court ruling, some school districts were telling parents that they would have to reveal their immigration status or provide Social Security numbers for their children to enroll. School districts are — or should be — well aware that such questions are unconstitutional and unwise, both for the sake of the children and for taxpayers who might find themselves footing the bill for expensive legal liability against non-compliant districts.

With the increasingly dangerous anti-immigrant rhetoric and policies of the Trump administration gaining traction across the nation, it is more important than ever for schools to keep children from being used as political pawns. Parents must insist that school districts adhere strictly to the Plyler ruling, particularly to its basic requirement that every school create a welcoming, inclusive atmosphere for all children.

No less than our nation’s future is at stake. As Justice William Brennan wrote for the majority in Plyler, “We have recognized the public school 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.”

Griselda Vega Samuel is Midwest regional counsel for MALDEF (Mexican American Legal Defense and Educational Fund).

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