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Students in Need and the Courts
Carolyn Stone, Ed.D.
Thursday January 01, 2015
by: Carolyn Stone, Ed.D.

Section: Inside Insight

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Undocumented K-12 Children
As you walked past the front office this morning you overheard a staff member explaining to a parent that without a Social Security number she is unable to enroll her children in your school. You strongly suspect this family is undocumented and will leave and never come back. Is there anything you can do? Is your school district within its legal rights to deny entry to students if the parents don-t have Social Security numbers?

The 1982 U.S. Supreme Court landmark case Plyler vs. Doe gave undocumented K-12 students the right to a public education. In the last decade, states and municipalities have passed laws targeting undocumented students; however, when it comes to K-12 education, states and municipalities cannot ignore the Supreme Court’s ruling in Plyler.

Plyler began in 1975 when a Texas state law allowed public school districts to charge tuition for undocumented school children. Texas school superintendent James Plyler began charging $1,000 per undocumented student. The Mexican American Legal Defense and Educational Fund (MALDEF) filed suit on behalf of four families. A U.S. district judge found both the state law and Tyler’s policy unconstitutional, holding that they violated the 14th Amendment’s equal protection clause. The U.S. Court of Appeals for the Fifth Circuit affirmed the decision. The Plyler case went to the U.S. Supreme Court, which, in 1982, voided the Texas statute in a 5-4 decision saying it violated the equal-protection clause.

Justice William Brennan, writing for the majority, characterized this situation as one “imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control . . . . a kind of ‘class or caste’ treatment that the 14th Amendment was designed to abolish."

In 1996, Rep. Elton Gallegly (R-Calif.) introduced legislation that would have allowed states to do what Texas had attempted to do in 1975, but the Gallegly Amendment did not appeal to lawmakers or educators. Educators had come to believe that Plyler was good for the country, and educating undocumented children was for the benefit of all Americans.

In the last decade school district policies and practices have threatened Plyler, such as requiring Social Security numbers or a driver’s license before parents can enroll their children in school. In 2007, on the 25th anniversary of the Plyler decision, retired superintendent James Plyler said, "It would have been one of the worst things to happen in education. Right after we let those youngsters in, I was pleased.”
Undocumented postsecondary students: The postsecondary battles on in-state tuition have reprised Plyler at the university level. Undocumented students are paying the same tuition as international students at many institutions. Currently, 18 states allow undocumented college students to establish residency to pay in-state tuition: California, Colorado, Connecticut, Florida, Illinois, Kansas, Maryland, Minnesota, Nebraska, New Mexico, New Jersey, New York, Oklahoma, Oregon, Rhode Island, Texas, Utah and Washington. Undocumented students are ineligible for most state aid and federal financial assistance. The postsecondary issues will be the next iteration of Plyler. The tenets of the failed DREAM Act have already resurfaced and will continue to do so as undocumented children become increasingly accepted in this country.

Foster Kids
A child welfare agency caseworker is at your school asking for copies of a withdrawn student’s educational records so this child, who is in foster care, can enter his new school placed in the right courses. The principal has asked you to handle the situation, but you do not know the FERPA law about caseworkers and foster children. What do you do?

In January 2013, the Family Education Rights and Privacy Act (FERPA) was amended by the Uninterrupted Scholars Act (USA) to allow for better information sharing between child welfare and education. Child welfare agencies were experiencing long delays in accessing records. This act amended FERPA to permit schools to disclose a student’s education records, without parental consent, to a representative of a state or local child welfare agency or tribal organization who has the right to access a student’s case plan (as defined and determined by the state or tribal organization), is engaged in addressing the student’s education needs, and is authorized by the agency or organization to receive such records, when such agency or organization is legally responsible (in accordance with state or tribal law), for the care and protection of the student. These changes to FERPA also had an impact on the confidentiality provisions of the Individuals Disabilities Education Act (IDEA). USA allows agencies that are legally responsible for foster children to have access to specific information for early intervention or educational services.

When changes are made to FERPA, school counselors are often the last to be informed by administration, yet, often called on to apply FERPA. In an April 2013 survey sent to ASCA members, only 8 percent of the ASCA members responding indicated that their school district had informed them about USA. Best practice is to let your principal know that you want to be apprised of new laws affecting the school when they are funneled down from the district. It is also helpful to stay abreast of changes through professional readings.

Homeless Students
You have a student enrolling in your school who is unaccompanied by an adult and without any of the paperwork normally required. You strongly suspect this student is homeless, and he confirms this after a private conversation with you. The front office staff refuses to admit him. Do you keep his homelessness confidential? Is the front office staff within its rights by refusing to admit him into the school?

The McKinney-Vento Homeless Assistance Act is federal legislation that protects the right of homeless children and youth to enroll and remain in school while they or their families are homeless. School stability, access and support are at the heart of the law for homeless students. The act’s definition is broad: “Children and youth who lack a fixed, regular and adequate nighttime residence, including, but not limited to:
  • Sharing the housing of others due to loss of housing, economic hardship or similar reason
  • Living in motels, hotels, trailer parks, camping grounds due to lack of adequate alternative accommodations
  • Living in emergency or transitional shelters
  • Abandoned in hospitals
  • Awaiting foster care placement
  • Living in a public or private place not designed for humans to live
  • Living in cars, parks, abandoned buildings, bus or train stations, etc.
  • Migratory children living in the above circumstances”
The law does not specify an age range and is only restricted by the age limit set by individual states for secondary enrollment (e.g. before 21 years of age for Florida).

The law supports keeping children in their school of origin, which is the school they were attending when they became homeless, and students are entitled to transportation to their school of origin. Enrollment should not be hindered by lack of medical/health records, proof of residency, educational records or even immunization records. If a child moves districts he/she can still stay in the district of origin for the duration of homelessness or until the end of the school year.

The McKinney-Vento Act also requires a liaison for every school district to ensure the law is adhered to so homeless children receive an equitable education. The liaison helps parents obtain the necessary paperwork but also addresses any barriers to enrollment and settles any disputes according to the law. There is a legal imperative for reporting homeless youth to the liaison officer in the McKinney-Vento Act:
(A) Duties: Each local educational agency liaison for homeless children and youths, designated under paragraph (1)(J)(ii), shall ensure that —
(i) homeless children and youths are identified by school personnel and through coordination activities with other entities and agencies. (McKinney-Vento Homeless Education Assistance Improvements Act of 2001).

FERPA specifically allows the sharing of information with other school officials within the district or school who have legitimate educational interests. The homeless liaison officers have legitimate educational interest; to do their jobs as directed by the federal government they have to know who the homeless children are in their district. Additionally, school districts are legally required by the U.S. Department of Education to gather and report data on the number of homeless students in the district. To avoid duplication, the information collected must be personally identifiable and the nighttime residence given if known.

The legally required breaching of trust for a vulnerable student who requests confidentiality leaves school counselors uncomfortable. Student might be deeply embarrassed by their plight, wary of social services or afraid they will be separated from their parents. There are many reasons why students might want confidentiality. The school counseling profession recognizes children’s need for privacy and a trusting adult to whom they can share their confidences. This situation tests school counselors’ ethics. However, the law supersedes ethics, and personally identifiable information must be provided to the homeless liaison officer. The skilled school counselor will help students understand why the breach is necessary and will provide students with as much autonomy as possible, such as asking them if they would like to be provide the liaison officer with the information themselves. School counselors want to wrap these children in protective warmth, and homeless liaisons want to support and get them services and back into decent homes. Collaborative work benefits these children who may already feel disempowered, fragmented and scared.

Carolyn Stone, Ed.D., is chair of ASCA’s Ethis Committee and a professor at the University of North Florida. She can be reached at cstone@unf.edu.