The New Jersey Department of Education (NJDOE) issued its annual advice late last month on issues affecting immigrant children in New Jersey. School districts are encouraged to reviewthis guidance thoroughly and be aware of all requirements.
School districts are reminded that they have very serious obligations with regard to the education of immigrant children and must insure that they are not deprived of their educational rights under both state and federal law.
Prohibition on Discriminatory Enrollment Practices
School districts are prohibited from implementing discriminatory enrollment practices, intentionally or unintentionally, that may exclude children from enrolling in public school based upon their immigration status pursuant to state regulations. N.J.A.C. 6A:22-3.3.
Additionally, N.J.A.C. 6A:22-3.4 prohibits school districts from making enrollment contingent upon the receipt of information or documents either protected from disclosure by law or pertaining to criteria that are not a legitimate basis for determining eligibility to attend school.
Such prohibited documents include, but are not limited to, the following: income tax returns; documentation or information relating to citizenship or immigration status; and Social Security cards. When enrolling students, a school district may request verification of residency, such as copies of utility bills or lease agreements. However, the district cannot deny enrollment based on a failure to provide a particular form or subset of documents.
Further, when requesting documentation of a student’s age, school districts may not prohibit enrollment if the parent/guardian is unable to either present a birth certificate or presents a foreign birth certificate.
Prohibition on Barring Students From School Based on Immigration Status
Moreover, under N.J.A.C. 6A:22-3.3, school districts may not bar any student from public elementary and secondary schools on the basis of immigration/visa status, except for students on F-1 visas. School districts are required to enroll all students over five and under 20 years of age, who are domiciled in the district or who are otherwise entitled to attend school. N.J.S.A. 18A:38-1, et seq.; N.J.A.C. 6A:22-3.1, et seq.
Since 1982, in Plyler v. Doe, 457 US 202 (1982), the U.S. Supreme Court has been clear that undocumented children living in the United States could not be excluded from public elementary and secondary schools based upon their immigration status. Accordingly, school districts are prohibited from requiring students to disclose or document their immigration status; making inquiries of students or parents that may expose their undocumented status; or engaging in any practices that hinder the right of access to public schools.
District Obligations to Unaccompanied Immigrant Children
School districts may not deny immediate enrollment to unaccompanied minors or any immigrant student immigrating to the United States.
Districts should be aware that unaccompanied minors may be eligible for services under the federal McKinney-Vento Homeless Education Program and/or the federal Migrant Education Program. During the enrollment process, school districts should ascertain the relevant information to determine children’s eligibility for participation in these programs. Districts should also review the NJDOE’s guidance with respect to the review of student immunization and health records.
School districts must not delay or deny attendance based on their non-receipt of the following:
- A certified copy of the child’s birth certificate or other proof of identity. This is required within 30 days of initial enrollment (N.J.A.C. 6A:22-4.1(g); N.J.S.A. 18A:36-25.1);
- Medical information, although attendance at school may be deferred while awaiting immunization records (N.J.A.C. 6A:22-4.1(h)); or
- The child’s prior educational record pursuant to N.J.A.C. 6A:22-1(i).
To assist school districts with serving unaccompanied minors, the NJDOE provides resources regarding Unaccompanied Immigrant Children on its website. These resources inform districts on ways to support these students; explain how students interact with the immigration system; and address concerns districts may have about children’s medical/immunization records, eligibility for participation in federal grant programs, and appropriate instructional strategies.
School districts should discuss these matters fully with their board attorneys or call the NJSBA Legal and Labor Relations at (609) 278-5254.
Districts may also obtain information on the enrollment of immigrant students from their Executive County Superintendent; the Office of Supplemental Educational Programs at (609) 376-9080 or ell@doe.nj.gov. For clarification on school health requirements, contact the Office of Student Support Services at (609) 376-9109.