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English Language Learning


Students' Rights to Equal Education [clarified]


Reprinted from the Superintendent's Bulletin Issue 99A-02)

School staff often have questions concerning the enrollment of immigrant school-age children. The laws of Illinois and the United States guarantee all students in Illinois access to a quality education. This requires every district to guarantee all students equal access to the full range of programs and resources. Equal access is influenced by admission policies adopted at the district level and implemented at the school level. By law, immigrant students are entitled to the same access as nonimmigrant students. In Illinois today the growing number of immigrant and non-English-speaking students and changes in immigration law continue to generate questions and concerns about how to fulfill administrative duties without infringing upon children's educational rights.

This information is provided to help districts understand their role in regard to immigrant students. The State Board, with the assistance of its Illinois Advisory Council on Bilingual Education, has prepared the following answers to common questions about the enrollment of immigrant and non-English speaking students.

Who has the right to access?

Existing law guarantees immigrant and non-English speaking students a free public education from kindergarten through grade twelve up until the age of twenty-one regardless of immigrant status. Additionally, the U.S. Supreme Court ruled that undocumented children have the same right as U.S. citizens and permanent residents to receive a free public education.

Should Social Security numbers be required for enrollment?

Because the law prohibits any action which might have a "chilling" effect on the right of access to schools, districts must not require parents or adult care-takers to provide information concerning their or their children's immigration status. Policies or procedures which condition services or benefits by requiring a child's or a parent's Social Security number must be amended because these practices have the effect of exposing the immigration status of undocumented students or their parents. If a number is needed for identification or administrative purposes, to avoid infringing upon undocumented students rights, districts should assign a school-generated identification number. Similarly, when implementing residency policies, care must be taken to ensure that parents or adult caretakers can establish residency within the district by means which will not force them to, albeit indirectly, reveal their immigration status. Thus, districts may accept as proof of residency, but cannot mandate, that parents or adult caretakers provide either an Illinois driver's license or a state identification card which require Social Security numbers.

What might be considered for determining residency?

Among immigrant and non-English speaking families, it is not uncommon to find children who do not live in the same household as their parents. To safeguard immigrant students' right to a free public education, LEAs must not conclude that children who live within the district, but apart from their parents, must be charged tuition as if they were a non-residents.

Can districts mandate legal guardianship?

Even when it's undisputed that a child resides in the district, but questionable whether the child lives apart from the parent simply to access educational programs, districts must not apply inflexible rules to determine residency. Districts cannot mandate adult caretakers or relatives with whom a child lives to establish legal guardianship as a condition for gaining access to the district's schools. Districts may require reasonable assurance from the responsible adult caretaker that they accept responsibility for the child. This may be done through a notarized affidavit.

Can F-1 Visa students be charged tuition?

The F-1 Visa Program allows nonimmigrant foreign students from outside the U.S. to apply for student visas to attend our public schools. Recent changes to the Immigration and Nationality Act require districts to charge out-of-district tuition and limit attendance to twelve months. These changes do not affect J-1 (foreign exchange) students, F-2 (dependents of F-1) students, or students whose parents are here as diplomats, researchers, or foreign workers. Students attending private schools are not affected by the amendment. This amendment does not affect immigrant students residing in the U.S. nor does it alter a district's obligations to undocumented children since the changes made to the F-1 Visa Program only affect students specifically seeking F-1 status from outside the U.S.

Are immigrant students eligible for federal programs?

Schools are required to provide undocumented immigrant students the same benefits and services made available to other students. Therefore, when determining eligibility for free or reduced lunch and/or breakfast programs under the School Lunch Act, do not reject applications which do not have the parent's Social Security number. Parents without Social Security numbers need only indicate on the application that they do not have a number. Districts must make it clear that any and all information provided is used solely to obtain federal funds.

Should LEAs enforce immigration laws?

School personnel, especially building principals and those involved in student intake activities, have no legal obligation to enforce U.S. immigration laws. Conversely, the Immigration and Naturalization Service has no legal authority to determine or infringe on district residency policies.

Are funds available to help districts?

Districts heavily affected by the enrollment of immigrant students (documented and undocumented) may qualify for Federal Emergency Immigrant Education Program funds through the State Board and should take full advantage of them. Districts may also be eligible for funding through the State Transitional Bilingual Education Program for limited English speakers or the federal Title VII program.

For More Information

If you have any questions, call 312/814-3850.