Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

As principal of an elementary school, I welcomed a new family to our school at the beginning of the school year. Mom and dad enrolled their eight-year-old son and their six-year-old daughter last September and, since that time, these children have been model school citizens. It was, therefore, especially painful when I received a telephone call from an anonymous person telling me that these students do not reside in my school district and are in fact undocumented foreign nationals who are in this country illegally.

I immediately spoke to my secretary, whose recollection of this family’s enrollment was imperfect to say the least. She did find her notes, but they simply set forth the address the parents had given as their residence in town. When I pressed her on what proof of residence the parents had provided, she told me that they looked nice, and that she figured that they were telling the truth. As you might imagine, I was disappointed at the lack of rigor my secretary exercised in enrolling these students, and I decided that I should adopt new procedures to assure that only eligible students attend my school.

This morning, I gave my secretary the new protocol. To enroll a student in our school, parents must show some identification and at least two documents establishing the claimed residence, such as a lease or utility bill. As a further safeguard against undocumented foreign nationals attending my school, the protocol requires that the secretary obtain the social security number of any parent who looks foreign.

Did I do a thorough enough job as the gatekeeper for my school? And, by the by, I sent a letter to the family that caused all the trouble directing them to remove their children from my school immediately.

Thank you,
Ever Vigilant

Dear Vigilant:

Where do I begin? You have every right to ensure that only eligible students attend your school, but you went about doing so in the wrong way.

Let’s start with the nugget you shared at the end of your letter – that you have directed the parents to withdraw their children from your school. That was clearly wrong no matter what the determination as to residence ultimately is. If school officials determine that a student is not entitled to free school privileges, they must first notify the family of that determination and, by law, that notification must also inform the parents of their right to appeal. Moreover, once a student is enrolled in your school, the student is entitled to continue in attendance at the school unless and until the board of education (or a designated hearing officer) determines that the student does not reside in your school district. The parents can even appeal that determination to the State Department of Education; and, the student has the right to remain enrolled during this entire process. To be sure, if your determination that the student is not residing in your district is ultimately upheld, the district can assess tuition for the period the student attended your school without legal right. But your simply removing the children from your school without giving the parents an opportunity to appeal your determination denied them their right to due process.

You do have the right to require that students establish residence in your district before enrolling in school (other than homeless students, who have the right to enroll immediately), and your protocol starts out fine. The United States Department of Education, Office for Civil Rights, has issued guidance on the rights and related obligations of school officials to ensure that students reside within the school district. See United States Department of Education, Office for Civil Rights, “Dear Colleague” Letter dated May 8, 2014. In that guidance, we read, “School districts typically accept a variety of documents for this purpose, such as copies of phone and water bills, lease agreements, affidavits, or other documents. A school district’s requirements to establish residency must be applied in the same way for all children.”

When you go on to address the attendance of undocumented foreign nationals, however, again you violated the law. Applying more stringent requirements to families that “look foreign” is overt discrimination on the basis of national origin, which has long been prohibited by federal law. Indeed, the guidance quoted above expressly requires that you impose any residency requirements “in the same way for all children.” Moreover, a requirement that a parent provide his or her social security number in order to enroll a student is also potentially discriminatory (as foreign nationals would not have a social security number), and you must clarify that providing a social security number as part of an enrollment process is strictly voluntary.

Finally, in your protocol you presume incorrectly that students who may be residing in your school district illegally are not entitled to free school privileges. Eligibility for school privileges is strictly a question of whether the student “resides” in your district. If so, the student is entitled to enroll in school. A student’s immigration status is irrelevant.