Immigrant Children, Education of
Published March 2017
In 1982 the U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment was violated by a Texas law that authorized public school districts to deny enrollment to children not "legally admitted" into the United States. That holding, in Plyler v. Doe, 457 U.S. 292 (1982), was dependent on the Court's conclusions that illegal aliens are "persons" who may claim the benefit of the Equal Protection Clause; that no substantial interest of the State of Texas was furthered by discriminating against children who had no control over their parents' conduct nor their own undocumented status, but who would be disadvantaged for a lifetime if denied a public education; and that this law was not an effective means of dealing with the State's interest in preserving its limited educational resources because prohibiting employment of illegal aliens presented a better alternative to dealing with an influx of illegal immigrants.
Thirty-five years later and Plyler is still controlling law today for all states. So what is the difference between immigrant and non-immigrant students?
Immigrants (adults and children) come to the U.S. with the intention of making this country their permanent home. Other than for occasional visits, immigrants have no intention of returning to their countries of origin. Schools may not question immigrant students as to their "legal" status and may not demand their “documentation.” Pursuant to Plyler v. Doe, public school districts shall provide these students, assuming they meet residency requirements, with tuition-free educations.
On the other hand, there is no obligation of public schools to provide a tuition-free education to non-immigrant students. The most common categories of non-immigrant students are foreign exchange students (typically holders of J-1 visas) and non-exchange students (F-1 visa holders) living with relatives other than parents. The common thread for the examples given is that the students are not living with their parents and that they hold visas. To obtain a visa, the student must sign an application stating that s/he is a resident of a country other than the U.S. and intends to return to that other country. [If the student is not living with parents, a school may ask for their visa status because that student is presumed to not be a resident of the district just as any citizen of the U.S. is not presumed to be a resident of the district if living in the district without parents. A district could be delicate about it...asking "is this your host family through a Foreign Exchange Program?"]
A student who indicates that s/he has no visa is to be treated as an immigrant, based on the Plyler holding, and cannot be further questioned by school officials. The federal government (DHS) does not require any school to request immigration status.
The federal government (DHS) does not require schools to report to the government if they know a student is undocumented. DHS may require schools to report to the government about students who are here on a student visa, but who may be in violation of the terms of their visa.