Questions and Answers for States, School Districts and Parents
U.S. Department of Justice
U.S. Department of Education
These Questions and Answers are intended to assist states and school districts in meeting their legal obligations to ensure that their enrollment1 policies and practices do not discriminate on the basis of race, color, or national origin, and do not bar or discourage students’ enrollment in school based on their or their parents’ actual or perceived immigration status. The U.S. Departments of Education and Justice encourage states and districts to proactively implement supportive enrollment policies and practices that create a welcoming and inclusive environment for all students.2
Q - 1. Should a district inquire into the immigration or citizenship status of a student or parent3 as a means of establishing the student’s residency in the district?
A - 1. No. Immigration or citizenship status is not relevant to establishing residency in the district, and inquiring about it in the context of establishing residency is unnecessary and may have a chilling effect on student enrollment.
Q - 2. Are students, except homeless students as provided by Federal statute, required to show current residency in a district in order to enroll in a district school?
A - 2. A state or district may establish bona fide residency requirements and thus might require that all prospective students, except homeless students as defined and provided by the Federal McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§ 11301 et seq., furnish proof of residency within the district.
Q - 3. How can students meet requirements to show current residency in a school district?
A - 3. Rules vary among states and districts on what forms of documentation can be used to prove residency within a district. Districts typically accept a variety of documents as proof of residency, such as a telephone or utility bill, mortgage or lease document, parent affidavit, rent payment receipts, a copy of a money order made for payment of rent, or a letter from a parent’s employer that is written on company letterhead.
A parent must be permitted to establish residency using any of the alternative methods provided for by state or local law. States and districts cannot apply different rules, or apply the same rules differently, to children based on their or their parents’ actual or perceived race, color, national origin, citizenship, immigration status, or other impermissible factor. All students must be treated equally.4
A district should review the list of documents that can be used to establish residency to ensure that the documents required would not unlawfully bar or discourage a student who is undocumented or whose parents are undocumented from enrolling in or attending school.
Q - 4. Can a homeless child, including an undocumented homeless child, ever be required to show residency in a district in order to enroll in a district school?
A - 4. No. Even where a district has valid proof of residency requirements, it must exempt from those requirements all children and youth who are considered homeless under the Federal McKinney-Vento Homeless Assistance Act. These children and youth have a right to enroll in school, even if their families cannot produce the documents that would otherwise be required to prove residency.
The McKinney-Vento Act defines the term “homeless children and youth” as including, in part, “children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement,” as well as children of migratory agricultural workers. Additional information regarding the McKinney-Vento Homeless Assistance Act is available at www.ed.gov/programs/homeless/guidance.pdf.
Q - 5. The Dear Colleague letter issued on May 6, 2011, states that a “school district may require a birth certificate to ensure that a student falls within state- or district-mandated minimum and maximum age requirements; however, a district may not bar a student from enrolling in its schools based on a foreign birth certificate.” Does that mean that providing a child’s birth certificate is necessary to enroll in or attend school?
A - 5. No. The Dear Colleague letter does not suggest that states or districts must or should require a birth certificate. Furthermore, state laws setting forth enrollment requirements typically either make no mention of birth certificates, or expressly permit parents to provide alternative documents to demonstrate that a child meets a school district’s age requirements to enroll. Depending on the state or district, alternative documents could include, but are not limited to: a religious, hospital, or physician’s certificate showing date of birth; an entry in a family bible; an adoption record; an affidavit from a parent; previously verified school records; or any other alternative document permitted by law. School districts should make parents aware of any alternatives that exist as part of their efforts to ensure a welcoming and inclusive environment for all students.
Requests for documents such as birth certificates must not unlawfully bar or discourage a prospective student from enrolling and attending school, including a student who is undocumented or has parents who are undocumented, or a child or youth who is homeless as defined by the McKinney-Vento Homeless Assistance Act (see Q-4, above). Requests for documentation also may not discriminate, or have the effect of discriminating, on the basis of race, color, or national origin. All students must be treated equally in the enrollment process.
A district, moreover, should not use a student’s birth certificate or other documentation provided by a parent as a basis for inquiring into the immigration status of the student, his or her parents, or other family members. Such requests would likely have a discouraging effect on the enrollment of a student on the basis of immigration status.
Q - 6. What if a parent is reluctant to provide a copy of his or her child’s foreign birth certificate, fearing that doing so would lead to questions about the child’s or the parent’s immigration or citizenship status?
A - 6. School districts are encouraged to take proactive steps to educate parents about their children’s rights and to reassure them that their children are welcome in district schools. For example, state laws typically permit a district to use a variety of documents to establish the age of a child. A district should publicize that it will use a foreign birth certificate, baptismal record, or alternative document in the same manner that it will use a United States birth certificate, baptismal record, or alternative document: that is, solely to establish the age of a child.
As previously emphasized, a district must apply its rules and standards for documentation of age or residency in the same way to everyone, regardless of race, color, national origin, citizenship, or immigration status. A foreign-born child who is unable or unwilling to furnish a birth certificate should have the same options to enroll in school and should be treated no differently than a United States citizen child who does not have or otherwise may not be able to produce a birth certificate.
Q - 7. In light of the Dear Colleague letter, should districts refrain from asking for students' social security numbers?
A - 7. The Federal government does not prohibit states or districts from collecting the social security numbers of prospective or current students. States and local school districts must decide, however, whether they have a legally permissible reason to collect this information. If they choose to collect social security numbers, they must follow Federal laws regulating the use of that information. For example, under governing Federal laws, if a district requests social security numbers, it must inform individuals that the disclosure is voluntary, and must explain both the statutory or other basis for seeking the numbers and how the district intends to use the numbers. See Privacy Act of 1974, Pub. L. No. 93-579, § 7, 5 U.S.C. § 552a (note), available at http://www.ssa.gov/OP_Home/comp2/F093-579.html.
As the Dear Colleague letter makes clear, a district cannot deny enrollment to a student if he or she (or his or her parent) chooses not to provide the student's social security number.5 Districts have alternatives to requesting social security numbers. For example, a district seeking to have student identification numbers could decide to assign a randomly selected number to each student. In this way, the state or district would avoid any chilling effect that a request for social security numbers may have on the enrollment of students because of their race, color, national origin, citizenship, or immigration status.
A school district that opts to request social security numbers should make clear in all enrollment and registration documents, including forms, websites, and communications with parents, that the provision of the child's social security number is voluntary, and that choosing not to provide a social security number will not bar a child's enrollment.
Q - 8. How can a school district distinguish between (a) information that it should or must collect, and (b) information that it may not collect because doing so may discourage enrollment or attendance?
A - 8. There is typically only minimal information that a district is required to collect under state law for a student to be able to enroll, such as proof of age, immunization history, and residency within the district. Both the state and the district must act in compliance with the Constitution and valid Federal or state laws, including their obligations not to discriminate, or implement policies that have the effect of discriminating, on the basis of race, color, or national origin. In doing so, states and districts should also assess their current policies to determine whether they are doing anything that may have the effect, albeit unintended, of discouraging the enrollment of undocumented children, such as asking for immigration papers or social security numbers. Such practices and policies, once identified, should be changed to eliminate any possible chilling effect on enrollment.
Q - 9. In order to avoid discouraging enrollment, should a school district enroll any child who comes its way and ask for documentation later, after the child is enrolled?
A - 9. As noted above, school districts might require that prospective students furnish proof of residency in a district and/or age prior to enrollment, except for any children and youth who are considered homeless under the Federal McKinney-Vento Homeless Assistance Act. However, districts may also choose to wait until students are already enrolled before asking for any additional documentation that may be required under state or Federal law, such as student demographic data. By choosing to wait to collect additional information, districts may create a more welcoming and inclusive atmosphere for all prospective students. Requests for documentation must not discriminate, or have the effect of discriminating, on the basis of race, color, national origin, citizenship, or immigration status.
Q - 10. Once in possession of personal information about a student, are there circumstances when a school district may disclose that information from a student's education records without the consent of the student or a parent?A - 10. There are circumstances when a school district may disclose information from a student's education records, but these are limited and unlikely to be applicable in the majority of situations school districts confront. The Family Educational Rights and Privacy Act of 1974 (FERPA) generally prohibits school districts that receive Federal funds from the Department of Education from disclosing student information that alone or in combination with other information can identify that student, without the prior written consent of a parent or the student (if that student is 18 years of age or older or attends a postsecondary institution). See 20 U.S.C. §1232g. There are some limited exceptions to FERPA, see 34 C.F.R. §99.31, as well as narrow, enumerated circumstances under which Federal immigration laws require or permit a school district to provide specific information about a student to another Federal, state, or local government entity. One such circumstance is where the issuance of a non-immigrant visa to a student—and the maintenance of that student's non-immigrant status—is conditioned on the student's attendance at a specific school. Note that in that case, a school district would have preexisting information about the student that he or she would have presented to the school in order to obtain the underlying visa, and so the school would not have any reason to initiate a request for information about immigration status.
Q - 11. How should a school district communicate the requirements for enrollment with parents who have limited proficiency in English?
A – 11. For limited English proficient parents of a student seeking to enroll in a school, a district must meaningfully communicate material information about enrollment – e.g., translate a document into languages other than English and have some method of responding to those parents' questions – as required by Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the Equal Educational Opportunities Act, 20 U.S.C. § 1703. Material information could include alternative means to establish state-permitted residency and age requirements, if any. If a district asks for a social security number, material information would also be the fact that a district cannot deny enrollment to a student if he or she (or his or her parent or guardian) chooses not to provide a social security number.
Additional Proactive Support Measures That States and Districts Can Take
Q - 12. What can schools do proactively to show parents that their children are welcome, regardless of their immigration or citizenship status?
A - 12. The Dear Colleague letter encourages states and districts to review enrollment policies and practices carefully to make sure they are consistent with the law and do not have a chilling effect on the willingness of parents to enroll their children. Any problems should be corrected.
In addition, the U.S. Departments of Education and Justice encourage districts to be proactive in notifying parents of their rights to send their children to public school. For example, districts can conduct outreach to communities to inform parents that all students who are residents in the district are welcome to attend the district's schools.
Q - 13. Should districts provide staff training on how to avoid violating the law in this area?
A - 13. Staff training at the school and district level is encouraged. Ultimately, the state and district have the legal responsibility to ensure that they are complying with Federal law. Staff training helps facilitate that compliance.
Q - 14. What is the role of State Educational Agencies (SEAs) in ensuring that students are not improperly excluded from school?
A - 14. The Dear Colleague letter issued May 6, 2011, is intended to remind both districts and states of their obligations under existing law. As recipients of Federal funds, SEAs are responsible for monitoring compliance with Federal anti-discrimination laws. Because laws regarding school enrollment, including requirements for proof of age and residency, vary from state to state, this is an area in which leadership from SEAs is needed and can be particularly effective. SEAs are encouraged to review existing practices and policies and to assist their districts in understanding the types of practices that will comply with state requirements regarding school enrollment without violating constitutional and Federal anti-discrimination requirements. Specifically, SEAs should work to ensure that their school districts' enrollment practices do not unlawfully discourage or bar students, including students who are undocumented or have parents who are undocumented, from school.
Revised as of July 2012.
1 For purposes of this guidance, the term “enrollment” also means registration, matriculation, or attendance in school.
2 This Questions and Answers document accompanies the Dear Colleague letter on the Rights of All Children to Enroll in School, issued by the U.S. Departments of Education and Justice on May 6, 2011. This document has been updated to respond to additional questions received since the Dear Colleague letter was issued.
3 For purposes of this guidance, the term “parent” also means guardian or other responsible person under state or local law.
4 Title IV of the Civil Rights Act of 1964, which is enforced by the Department of Justice, prohibits school districts from taking actions that deprive students of equal protection of the laws. Title VI of the Civil Rights Act of 1964, which is enforced by the Department of Education, and by the Department of Justice upon referral from a Federal funding agency or through intervention in an existing lawsuit, prohibits discrimination on the basis of race, color, or national origin.
5 Similarly, a school district cannot deny a student enrollment if his or her parent chooses not to provide his or her own social security number.