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Reviewed by Mary McLaughlin, Ma-TESOL; M.S. SpEd
You’re an ESL teacher. You’ve spent years in school preparing for the job. This is your career, but more than that, this is who you are.
As a citizen of these United States, you have the right – some would say duty – to be passionate about the many political issues of our time. As an ESL teacher you likely already have some pretty strong ideological viewpoints, and probably some growing concerns about the well being of your students given the current political climate.
While you’re at school, you’re obligated by duty to act in your professional role as teacher. Now this might mean leaving your personal opinions aside, but it also means that you need to look out for what’s in the best interest of your students. The good news is that laws are in place to support you in doing just that.
At the end of the day, the education system you work for is designed to allow you to focus on teaching, and for your students to focus on learning. You don’t need to give a second thought to whether or not one of your students is in the country legally or not. It simply isn’t your job to worry about the immigration status of the kids in your class, and the law helps ensure you don’t have to.
Now, of course, this doesn’t mean there won’t be some tricky conversations and new challenges to deal with given what a hot button issue immigration has become. It’s a good idea to think it all through and to be prepared to deal with questions that may come your way from students and parents and to understand what your duties and obligations are, both in terms of professional ethics and the law.
Here we answer some frequently asked questions that seem to be coming up more and more as immigration takes center stage as one of the most heated political issues of our time:
- Can undocumented children enroll in public schools?
- Are teachers required to report or inquire about the legal status of their students?
- What about when state policy conflicts with federal immigration law?
- Can and should teachers report students they suspect are undocumented?
- How many undocumented K-12 students are in the United States?
Can undocumented children enroll in public schools?
Yes. The US Supreme Court ruled specifically on this issue in 1982 (Plyler v. Doe). It said that undocumented children have the right to attend public schools in grades K-12.
Furthermore, state laws require school-age children to attend school until they reach a designated age.
Are teachers required to report or inquire about the legal status of their students?
The short answer is no.
This question can be answered on several different levels, in terms of federal law, state law, city law, and school policy. Even in the absence of state code or school policy, the limits to this type of inquiry or reporting are clearly enshrined within federal law.
The 1982 US Supreme Court case Plyler v. Doe specifically says school staff – including teachers, principles, and those involved with student registration/enrollment – are not required to report suspected violations of US immigration laws.
There is a federal law that pertains to reporting crimes (US Code Title 18 Part 1 Chapter 1 Section 4 – Misprision of a Felony). It says that anyone who knows of a felony that has been committed, and who does not report it to the appropriate authorities as soon as possible can face a fine and/or imprisonment.
However, the most common immigration violations are not felonies. Improper entry into the country is a misdemeanor. Unlawful presence – people who have overstayed their legal period of residence, such as those who came to the United States temporarily as tourists – is also a non-felony violation of the law.
While the US Department of Education (DoED) typically has a pretty limited role in setting policy in public schools, instead leaving that responsibility to states and municipalities, the DoED has made a point to clarify their role: to ensure all school age kids have equal access to public education, driving the point home by stating that this will be strictly enforced by the US Department of Justice (DOJ).
The DoED’s position was underscored in a 2014 letter sent to all public school districts in the U.S. To-date (as of late September 2017) the Trump administration has not made a move to overturn this policy.
In addition to clarifying the DoED’s role as stated above, the letter clearly reiterated the point that it is against the law for any state, city, or public school district to implement practices that, “…chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status.” The letter continues, “Moreover, districts may not request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin.”
The DoED and DOJ also specify in the letter that K-12 public school officials can make inquiries to determine the following, as long as these fall within the bounds set above:
- A student’s proof of residency within a school district
- A student’s age
- A student’s race and ethnicity, so long as this data does not lead to a denial of enrollment
- A student’s Social Security number, however the school official making this inquiry must make it clear that disclosure of such is voluntary, and this inquiry must be made uniformly of all students
What about when state policy conflicts with federal immigration law?
Depending on where you live your city may have strong policies one way or the other regarding the highly politicized issue of undocumented/illegal immigration. As far as the public schools are concerned, none of that really matters. Federal law is very clear that undocumented students have a right to attend public schools, getting the same access to education that all other students in America have.
However it’s worth examining the issue of undocumented students in the context of sanctuary cities to clear up any confusion on this topic.
Some cities have chosen to limit cooperation between local and federal law enforcement when it comes to enforcing immigration law. These cities assert that Federal law enforcement agencies – the FBI, DHS, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are there to enforce federal immigration laws, while state and local police are there to uphold state and local laws and protect residents from crime regardless of what their immigration status might be.
Some cities have joint federal-local law enforcement task forces that make it easier to inquire about a person’s immigration status when state and local police responds to a call. Proponents of sanctuary cities point out that these task forces cause crimes to go unreported in immigrant communities where people avoid calling the police for fear of being deported. This can be particularly concerning when serious crimes and domestic violence go unreported.
Sanctuary cities do not have such local-federal partnerships, and may have specific policies forbidding local law enforcement from inquiring about the immigration status of people they encounter. The goal is to create an environment where victims report crimes without having to worry about being deported. This type of arrangement is essentially what makes a place a “sanctuary city.”
Schools and school districts, especially those located in sanctuary cities, might adopt policies that reinforce DoED policy regarding access to public education, a school’s educational mission, and Constitutional rights (undocumented immigrants have most Constitutional rights, with exceptions for voting and owning firearms. In 2001 the right of due process for undocumented immigrants was specifically affirmed in the Supreme Court’s Zadvydas v. Davis ruling).
These types of policies, which are all within a school’s rights, might include:
- Limiting access to school property for federal agents, except when they have a federal warrant
- Refusing to assist federal agents in locating a student
- Refusing requests from federal agencies to hold or detain a student
- Limiting access by federal agents to a student’s personal records and information
For example, San Francisco is a self-designated “sanctuary city.” Its school district has adopted the policy that the presence of ICE agents on school property would disrupt the educational setting, and therefore the superintendent must approve all ICE visits unless they have a federal warrant. This is similar to recent policies adopted by Chicago Public Schools, Denver Public Schools, Pittsburgh’s school district, and Santa Fe’s school district.
Other school districts in self-designated sanctuary cities – Milwaukee, Los Angeles, and Austin – have adopted even stronger policies that say any presence of ICE agents on school property must be opposed by all possible legal means.
Can and should teachers report students they suspect are undocumented?
Reporting an undocumented student could mean losing your job and facing legal consequences.
As a public school ESL teacher for grades K-12 you have certain legal and ethical responsibilities, similar to what is seen in other professions: If you are an active-duty soldier wearing a uniform, criticizing the president means the possibility of facing legal consequences… If you are a psychologist and you gossip about what your client has told you, you would be subject to professional penalties and could even have your license revoked.
Similarly, if you report a student for no other reason than because you suspect they may be an undocumented immigrant, you may be in violation of both legal and professional standards.
Legally, you must “ensure equal access to public education,” and you cannot, “chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status.” That is what the federal law says. You may be subject to legal action if you say or do anything that can be construed as violating these standards. You’re also subject to state and municipal laws. For example, San Francisco has a law that says employees of its public school district cannot use any money or resources to collect information regarding student immigration status, nor to help ICE.
Professionally, you’re accountable to your local parent-teacher association, school board, district board of directors, superintendent, and/or other policymakers. If you break rules that regulate what you can and cannot do as a teacher, you might face consequences like suspension or even termination. And there is a precedent for this:
- In 2017 an elementary teacher in Washington state was placed on leave when she wrote a message on her Facebook page that encouraged people to, “report illegal aliens,” to ICE.
- In 2016 a high school PE teacher in San Jose was placed on leave when students reported he made the following remark to a student: “Good luck with being deported now that Donald Trump is president.”
How many undocumented K-12 students are in the United States?
A conservative estimate is around 750,000, but there is no concrete answer. We can only make an educated gues based on statistics from the US Customs and Border Protection (CBP)and the US Citizenship and Immigration Services (USCIS).
Here’s how we arrive at this figure …
USCIS manages the Deferred Action for Childhood Arrivals (DACA) program that allows undocumented persons between the ages of 15 and 30 who have been present in the US since 2007 to delay removal proceedings and stay in the country legally. Between 2012 and 2017, USCIS reports that 799,077 DACA applications have been approved. If you assume the number of applicants is evenly distributed by age, you can estimate there are 749,136 undocumented students between the ages of 5 and 19.
Now let’s look at CBP statistics to see why around 750,000 is a conservative estimate. Remember that undocumented immigrants arriving in the US since 2008 are not eligible to apply for DACA status.
CBP reports that along the Southwest border alone in the past two years (2015 and 2016) border patrol agents have apprehended:
- 30,560 unaccompanied undocumented minors
- 33,716 undocumented adults with family members under the age of 18
If you take the average number of unaccompanied minors arriving in 2015 and 2016 at that border – 15,280 – and stretch that back to 2008 you reach 122,240 undocumented unaccompanied minors whose numbers would not show up in DACA application statistics– and this isn’t including the number of undocumented minors who arrived with family members. This latter group will most often be returned to the country of origin without ever having a chance to enroll in US public schools.