Legal Updates


ENROLLMENT OF FOREIGN BORN STUDENTS

May 24, 2017

Shortly after President Trump’s inauguration this past January, the new President issued multiple Executive Orders dealing with federal immigration law.  These orders put a great deal of focus on the state of immigration from a legal perspective and, specifically, spurred speculation regarding increased enforcement efforts.  School districts, as is often the case, were placed squarely on the frontline of this national discussion as they must address student and parent concerns over such potential enforcement efforts.

Residency Status of Foreign Born Students

It is critical to point out that neither local school districts nor the State of Wisconsin are permitted to set rules pertaining to student enrollment on the basis of immigration status.  The U.S. Supreme Court decided a case in 1982 that made it clear that local school districts must apply residency rules to foreign born students in the same fashion that such rules are applied to other school-aged children. Distinctions in legal rights based on immigration status are exclusively the province of the federal government.  Plyler v. Doe, 457 U.S. 202 (1982).

Wisconsin public schools therefore may only apply residency rules applicable to all students to determine whether a foreign born student is eligible to enroll.  The residency standard, as set forth by the Wisconsin Supreme Court in 1889 in State ex rel. Sch. Dist. Bd. v. Thayer, considers a student to be a resident if that student is “actually residing in the district for other, as a main purpose, than to participate in the advantages which the school affords.”  If a child is residing in the district and is doing so for reasons other than simply to access the education system, the child is a resident, regardless of whether the student or parent(s) are lawfully present or only temporarily lawfully present in the United States.

Immigrant Children under Title III

Title III of the Elementary and Secondary Education Act (ESEA) as amended by the Every Student Succeeds Act (ESSA) provides grant funding to local school districts, through the state, to supplement funding for programming for English Language Learners (ELL).  To qualify for these grants, school districts must identify the population of “Immigrant Children” enrolled in the district.

The term “Immigrant Children” is defined by federal law to include a student that meets the following three criteria: (a) the child is between the ages of 3-20; (b) the child was born outside the United States; and (c) the child has not attended a U.S. school for at least three consecutive school years.  Note that the child’s immigration status is not pertinent to this designation.  In fact, the U.S. Department of Education’s lengthy guidance as to Title III regulations makes the following point with respect to this issue:

Finally, note that the term “immigrant” as used in Title III is not related to an individual’s legal status in the United States.  Under the U.S. Supreme Court case Plyler v. Doe, schools are required to provide equal access to a basic public education to all students, regardless of immigration status.  For more information see OCR’s Guidance for School Districts to Ensure Equal Access for All Children to Public Schools Regardless of Immigration Status, available at http://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/raceorigin.html.

School districts are cautioned against collecting information on an individual’s immigration status.  This is true for several reasons, but most importantly because the information is not pertinent to any decisions that local school districts can make regarding programming for students, and because the federal immigration system can be far more complicated and nuanced than one might expect.  This means that school officials that try to determine a child’s immigration status may quickly find themselves trying to comprehend a system with which they do not have any experience or particular expertise.

Education Specific Immigration Statuses

Apart from the expectation that public school districts apply uniform residency standards to all students, regardless of immigration status, it is also the case that many of Wisconsin’s school districts have sought to become sites for foreign exchange students.  These programs take two primary forms:

First, some school districts enroll students that are participating in educational exchange programs through one of many organizations that are approved by the U.S. Department of Homeland Security.  These programs use a visa category known as the J-1, exchange visitor category.

J-1 exchange programs are managed by third-party organizations and residency in the school district remains a function of applying residency rules to the individual.  Some programs are purely for attending U.S. education institutions and, as such, those students may be required to pay tuition.  Other programs are more broadly defined in terms of cultural activities, travel, and other purposes for the program.  Education is but only one component of the program and, therefore, the student may qualify as a resident.  The takeaway here is that it is not the local school district’s obligation, nor should it be conscripted into the effort, to verify that the student is complying with the terms of his or her visa or that the program sponsor is complying with its obligations as a sponsor.  Rather, school districts should simply apply their residency analysis to determine if the student is entitled to enroll as a resident, or must pay tuition.

Second, school districts may encounter the F-1 student visa.  The F-1 program is a foreign student program in which the school or district of attendance serves directly as the sponsoring entity for the individual.  Many of Wisconsin’s school districts are actively participating in this program by signing up with the U.S. Department of Homeland Security in order to be permitted to sponsor students.

The F-1 student visa program involves very specific requirements and requires that the sponsored F-1 student both: a) pay tuition and b) not attend for more than 12 months of schooling in the public system.  The fundamental difference with this program, as compared to any other immigration program, as it pertains to participating schools or school districts is that by signing up for the program, the school officials agree to certain responsibilities.  Namely, the school agrees that any student it sponsors will be at the actual cost of attendance and that the school will not maintain that students record in the program for more than 12 months.  Even in this case, it is worth pointing out that such a student could complete his or her F-1 student enrollment, be discontinued in the school’s system, but then choose to remain in the U.S. and become a resident for continuing attendance purposes.

Final Point on Immigration Enforcement Efforts

This discussion started out referencing the President’s executive orders on immigration and the resulting concerns associated with them.  In such an atmosphere it is vital to keep in mind the following points: a) rules concerning enrollment and the role (or lack of role) that immigration status plays in that process have not changed since 1982; b) collection of information for potential Title III grant funding does not need to include immigration status as that is of no relevance to “Immigrant Child” status; and  c) U.S. Immigration and Customs Enforcement internal guidelines have not changed in many years - the guidelines continue to prohibit agents from engaging in enforcement activities in so-called “sensitive locations” which include school grounds, places where school activities occur, and school bus stop locations when children are present.

Conclusion

Federal immigration law is a complex and often counterintuitive system.  The good news for school districts is that the federal immigration system has very little pertinence to enrollment or other student eligibility determinations schools make regarding students.

School districts are advised that the legal environment with respect to foreign born students has not changed since the Supreme Court’s decision in 1982 and that school districts should review their enrollment procedures to assure that the information being requested is pertinent to the enrollment process and does not present the unnecessary risk of allegations that the school district is creating barriers to access education.

For questions regarding this article, please contact the author, Attorney Geoffrey A. Lacy (email: glacy@strangpatteson.com; telephone: 844.833.0824), or your Strang, Patteson, Renning, Lewis, & Lacy, s.c., attorney.

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