Plyler v. Doe allows de facto bar to undocumented education


The Supreme Court’s holding in Plyler v. Doe, which held that all children– regardless of immigration status–are entitled to a free public school education, needs to be revisited. Not for it to be overturned, like so many strident nativists yearn for, but for it to be bolstered.

A Failed Enrollment

In the  quaint seaside village of Port Jefferson, NY,  where most  of the residents are well-to-do white collar workers, small, isolated pockets of immigrants toil behind the scenes, powering the local restaurant, landscaping, and construction businesses. Some are undocumented, some are not.

I am friends with some of these immigrants. I found out, from one of these friends, that a relative of about 14 or 15 had recently arrived in the United States.

Fresh with the knowledge I learned in law school, I spoke to this adolescent, Jose,  and told him that he had the right to attend school; that if he went, he’d be better of for it and at the very least he could learn how to speak English.

At first, Jose said that, yes, he wanted to go to school. After a short time passed, he reversed course, simply saying he no longer wanted to go. Through someone else,  I found out  that the reason he changed his mind was out of fear of deportation. That fear is not unfounded; there is always a risk for one to be deported.

On learning of his change of course, I nonetheless went ahead and contacted the person in charge for registration at Port Jefferson Union Free High School. I thought, armed with all of the information required for registration, that I could allay Jose’s fears to register for school.  I thought wrong.

The conversation I had with the registration personnel at the high school went something like this:

Me: what do you need for registration of a student?

Her: First, you need a copy of the lease and two utility bills.

Me: What if there is no lease?

Her: Then you need a signed affidavit from the landlord, stating that they have been living there for at least a year

Me: What else?

Her: A passport or a birth certificate; immunization records, and ID of one of the parents.

Me: What about a national identification card?

Her: (sounding confused) I’ve never seen that before, so I don’t know.

Me: And what if there is no ID from the parents?

Her: (exasperated and nonsensical answer)

There were other parts of this conversation, including a question by her that most likely violated federal law, as defined by Plyler v. Doe: “Where is the  student from and where do his parents live?”

To any person here unlawfully, a question of origin would likely plant seeds of doubt and fear in the eyes of the undocumented parent/children as to why the registration personnel was asking that question. The “Are they going to call La Migra?” question probably rifles through their minds.

After all this, Jose did not register for school; I decided not to push the issue.

Plyler’s Vagueness Creates De Facto Bar to Education

The New York Civil Liberties Union(NYCLU), like I discovered above, found that several NY state school districts  registration requirements were violative or likely to be violative of Plyler.

Their efforts bore fruit; the State Education Department sent out a statewide memorandum to school districts detailing Plyler and subsequent education law decisions  outlining what are permissible requirements for registration as it relates to undocumented students.

The memo begins by indicating that there are no hard and fast rules for registration requirements:

While Plyler did not expressly address the issue of whether a school district may inquire about a student’s immigration status at the time of enrollment, the decision is generally viewed as prohibiting any district actions that might “chill” or discourage undocumented students from receiving a free public education.

The requirement for identification is to verify the student’s age. On the registration form for Port Jefferson, the two forms of ID that would suffice were either a birth certificate or  passport.

A student who does not have a birth certificate or passport would undoubtedly be discouraged from receiving a free education from this particular school district.  Yet the NY state memo does not set the record straight; rather it gives mere examples of what may suffice as it relates to proof of age:

Please note that this list is intended only to provide examples of documentation that may be relevant to establishing a student’s age – it is not intended to be exhaustive, nor is it a list of required documentation:

–Official driver’s license

–State- or other government-issued ID

–School photo ID with date of birth

–Consulate identification card

–Hospital or health records (in New York City, Hospital Birthing Records)

–Military dependent ID card

–Native American tribal document

–Record(s) from non-profit international aid agencies and voluntary agencies (VOLAGs)

The same uncertainty is present in the board’s advice on what are acceptable proofs of residence:

Below is a list of examples of documentation that may be used to establish a student’s residency. Please note that this list is intended only to provide examples of documentation that may be relevant to residency determinations – it is not intended to be exhaustive, nor is it a list of required documentation.

–Pay stub

–Income tax form

–Deed or lease to house or apartment

–Utility or other bills sent to the student’s home address

–Membership documents – such as library cards – based upon residency

–Voter registration document

–Official driver’s license, learner’s permit or non-driver I.D.

–State- or other government-issued ID

From analyzing the suggestions proffered by the board of education for proof of age and residency requirements, it is understandable how many school districts may have run afoul of Plyler.

Port Jefferson’s requirements for proof of residence and age, to the extent that they comport with the board’s suggestions, will provide an explanation as to why Plyler should be bolstered.

A passport or birth certificate are within the suggestions by the board, yet by not listing alternative forms of identification, the school unwittingly may discourage undocumented students from registering for two foreseeable reasons: 1. the passport or birth certificate in the student’s possession  delves into immigration status and thus could spark fear; or 2. the student does not have a passport or birth certificate.

In this respect, Port Jefferson could amend its practice by adding the more comprehensive list suggested by the board. For proof of residence, the fix is not directly possible absent an authoritative declaration from the Supreme Court.

For proof of residence, PJ school district required a signed lease(or signed affidavit from landlord) and two months of utility bills. The latter is not an obstacle, but the former could squash a student’s desire to register.

Many undocumented individuals live in apartments that have no formal written lease. Furthermore, many undocumented individuals dwell in substandard apartments–especially on Long Island where rental units are sparse and expensive–in an effort to maximize profits. In this scenario, asking a landlord to swear in an affidavit an admission of renting an illegal apartment could definitively block a student’s registration for school.

As can be seen in the board’s suggestions for proof of residence, there is nothing that prohibits a school district from requiring a proof of a lease and utility bills. In this instance, the lack of concrete directives, allowed by Plyler, can and likely does discourage undocumented children from attending school.

Advice to Supreme Court

Plyler is too vague; in effect, its holding has trickled down to the thousands of school districts throughout the United States and been misinterpreted, ignored, or simply followed in form but not in substance.

The Supreme Court, if it revisits Plyler, should be unequivocal in how it intends to prevent discouraging undocumented children from registering for public school.

First, the Supreme Court should hold that a national identification card, as well as either a passport or birth certificate, will suffice on its own to prove  a student’s age. Second, the Supreme Court should hold utility bills are sufficient on their own for proof of residence.

Without these added safeguards, undocumented children will be prevented from attending school, which directly contradicts the rationale behind  Plyler: to prevent a permanent subclass of people in the United States.


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