I’m a Special Education Attorney always looking for ideas for my Blog. I have been speaking with Immigration Law Attorneys about what educational issues would be most relevant to their clients. Given the current political climate, I thought it would be helpful to explore the rights of children of undocumented parents from an educational perspective. My expertise is in ensuring that students with disabilities are afforded the necessary supports and services required by state and federal law. Advocates for Children of New York, an excellent organization, has put together a list of rights for children of undocumented parents, much of which I discuss below.

Parents are understandably nervous. And when they see articles like this: (Federal Agents Visit Queens School), they may come to you with panicked questions. Recently, immigration agents tried to search for a fourth-grader at a Queens school, but school staff would have none of that. The agents did not have a warrant and could get no further than the front security desk. A spokesperson for the federal agency who sent the agents said they were only trying to determine if a student was enrolled in order for the parent to qualify for an “immigrant benefit.” This incident comes two months after New York City officials ordered school employees to bar immigration officers from entering their schools without warrants. The City has been sending a strong message regarding these issues.

It should be noted that the Supreme Court weighed in on this issue back in 1982 when it ruled that states cannot constitutionally deny students a free public education on account of their immigration status. It’s important to understand what the laws are today. First of all, school staff cannot ask students or their parents about their immigration status. Federal policy, specifically that issued by Homeland Security, limits immigration enforcement efforts at certain sensitive locations, such as schools, hospitals, and places of worship. As stated earlier, in New York City, federal agents, including immigration and Customs Enforcement (ICE), are not permitted to enter schools, except when absolutely required by law (and a warrant is required in those situations). If an immigration official goes to a school, she must wait outside the building while the principal consults with Department of Education (DOE) lawyers. School districts in many states are passing similar resolutions protecting undocumented students and their families. Among them are Denver, Pittsburgh, Houston, Eugene (Oregon), Austin, Los Angeles, and Santa Fe. A quick Google search will often point you in the right direction for policies in the school districts you clients are in.

The DOE will not release information from student records to immigration officers unless absolutely required by law. Undocumented parents and students have the same rights under federal law, namely the Family Educational Rights and Privacy Act (FERPA), as do other families. Even if a student or his parents are undocumented, the student still has the right to receive ALL school services, including special education supports and services.

Under federal law, bullying, harassment, and discrimination based on race, national origin, immigration status, or religion are NOT allowed in schools. Students and parents have the right to make formal complaints and cannot be punished for doing so. I should note that these rights are easier to enforce for children with disabilities. In some instances, parents/students may even have a private claim against their school districts should they retaliate against them for exercising these rights.

How many children are affected? According to a Pew Research Center’s Hispanic Trends Project, 6.9% of K-12 students had parents who were illegal immigrants in 2012, with Nevada leading the states with 17.7%, followed by California (13.2%), Texas (13.1%), and Arizona (11.0%). New York is at 5.5%. Approximately 1.4% of all students were undocumented themselves.

Hopefully this information provides a little more clarity on the rights these vulnerable children have. Of course this is all subject to change depending upon the current Administration. If you have any questions, whether about these issues or issues related to Special Education, feel free to reach out to me at Lloyd@SpecialEdLegalInfo.com. Also, I’d love to hear suggestions for future posts.