New York – State Reminds Schools Not To Ask About Immigration Status

New York – The State Education Department has sent school districts a memorandum strongly recommending that they not ask for information that might reveal the immigration status of enrolling students, after a civil liberties group complained that scores of districts were requesting such information in possible violation of federal law.

The memo explained that a 1982 Supreme Court decision had recognized the right of all children, regardless of immigration status, to attend public school as long as they met the age and residency requirements established by state law.

“Accordingly, at the time of registration,” the memo said, “schools should avoid asking questions related to immigration status or that may reveal a child’s immigration status, such as asking for a Social Security number.”

The memo, titled “Student Registration Guidance,” followed months of pressure from the New York Civil Liberties Union, which had discovered that some 139 districts – about 20 percent of the total – were requiring children’s immigration papers as a prerequisite to enrollment, or asking parents for information that only lawful immigrants could provide. The group repeatedly asked the Education Department to stop those practices.

While the group did not find any cases in which children had been turned away for lack of immigration paperwork, it worried that the requirements could deter illegal immigrant families from enrolling children for fear that their status might be reported to federal authorities. The requested documents included Social Security cards and resident alien cards.

The state’s education law, which mandates a free public education for all residents ages 5 to 21 who have no high school diploma, allows districts to require documents that prove age and residency, like rental leases, birth certificates, consular identification cards and utility bills. It does not mention immigration-related documents.

The Education Department resisted taking any direct action to advise districts on the law. But after The New York Times published an article on the issue in July, some school districts asked state officials for guidance, and the department decided to issue the memo, a spokesman said.

“Shortly after the story ran, we revisited the issue and felt that it would be helpful to districts to give them more comprehensive guidance,” the spokesman, Jonathan Burman, said Tuesday. The Education Department developed the memo in consultation with lawyers at the civil liberties union, he said.

Asked why the memo stopped short of forbidding districts to request immigration-related documents, Mr. Burman said: “This was developed by our team of lawyers, and vetted and discussed and shared with the N.Y.C.L.U.’s counsel. So we felt that this was the best, most legally accurate guidance that we could share with the field.”

The civil liberties group applauded the memo. “There’s no question that a strong mandate would’ve been better,” said Udi Ofer, the group’s advocacy director. “But the language included in this guidance makes it clear that school districts must amend their policies to be in compliance with constitutional law.”

Mr. Ofer also warned that the guidance was only as good as its enforcement. “The state must aggressively monitor the enrollment practices of the school districts,” he said. If not, he warned, “surely the problem will continue.”