New NSBA Publication May Help Rural Districts with Growing ELL Populations

Last Updated: October 30, 2009

This article appeared in the October 2009 Rural Policy Matters.
The National School Board Association, in a joint effort with the National Education Association and other school law organizations, has released a guide for schools on serving their English Language Learners, specifically students who may lack proper immigration documentation.
The guide, "Legal Issues for School Districts Related to the Education of Undocumented Children," was developed in response to the many school attorneys and officials who have been seeking information from the organization on these issues.
The guide, which does not constitute legal counsel, addresses 13 commonly-asked questions. Excerpts from several of those questions are included below.
Legal precedence on these issues is scant and stems almost entirely from the 1982 United States Supreme Court case Plyler v. Doe, which held that undocumented students have a right to a free public education. Plyler has generally been interpreted expansively, and this document encourages schools to provide education services and privacy protections to students who may be undocumented in order to meet the needs of those students and well as the Plyler standard and to avoid costly litigation and public relations problems.
For example, an important Plyler interpretation discussed in "Legal Issues" is the principle that schools should not "engage in any practices that ‘chill' or hinder the right of access to school..."
Some additional issues covered in the guide include undocumented students' access to extracurricular activities, school feeding programs, and special education services, all of which are interpreted as central to receiving their Plyler-protected education.
The guide addresses the issue of seeking or maintaining records about student immigrations status and the school's responsibilities and relationship to Immigration and Customs Enforcement (ICE) authorities. Last year, schools were affected by several highly publicized ICE raids in which parents were detained during the school day and schools had to help make arrangements for children.
RPM has included short excerpts from the guide below. We encourage you to read the entire guide for complete answers to the questions and for thoughtful discussion of relevant issues. 
  • Can school districts ask questions about immigration status to determine if a student is a resident of the district?
Probably not. Asking students questions about their immigration status when determining residency may discourage undocumented students from enrolling in school, arguably in violation of Plyler…

  • Must, may, or should a school district report an undocumented student to Immigration and Customs Enforcement?
No federal law requires school districts to report undocumented students to immigration authorities and arguably school districts are prohibited from reporting them by Plyler.

  • Does a school district have to provide Immigration and Customs Enforcement information contained in student records about undocumented students?
The Family Educational Rights and Privacy Act (FERPA) 51 generally prohibits school districts from providing third parties such as ICE information about students contained in student records.
Read the full content of "Legal Issues for School Districts Related to the Education of Undocumented Children" at
Read more from the October 2009 Rural Policy Matters.