Undocumented homeless students have rights during, beyond COVID-19 response

Not only are these students eligible to attend and fully participate in public schools, but schools cannot take actions that discourage undocumented students from seeking enrollment.
By: | May 13, 2020
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Undocumented children and youths, even in sponsorship situations, may be eligible for education-related services under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act, Pub. L. No. 114-95.

The living situations of undocumented students and those identified as McKinney-Vento eligible may overlap, according to attorney Patricia Julianelle. She is director of program advancement and legal affairs for SchoolHouse Connection, and she presented the organization’s Undocumented Students Experiencing Homelessness webinar.

Undocumented children and youths have rights to attend and participate fully in public schools, regardless of their immigration status, said Julianelle, adding that schools cannot ask about a student’s or family’s immigration status or take other actions that could discourage students from seeking enrollment or could create a chilling effect.

That is, she said, schools cannot require Social Security numbers or immigration or citizenship documentation of students or families who may be undocumented. Nor can they contact Immigration and Customs Enforcement or other law enforcement officials about students or families who may be undocumented.

Immigrant students living in homeless situations are covered by McKinney-Vento regardless of their immigration status. Plyler v. Doe, 108 LRP 64833, 457 U.S. 202 (1982), affirmed that undocumented students have the same right to public education as U.S. citizens.

Enrollment practices that chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ real or perceived citizenship or immigration status contravene federal law, according to a joint policy letter by the U.S. departments of Justice and Education. Dear Colleague Letter, 114 LRP 21049, 8 GASLD 39 (OCR 05/08/14)

If an undocumented child or youth meets the McKinney-Vento definition of homeless, then that student must be enrolled in school immediately, even if they lack documents typically required for enrollment. And their school must address barriers to full participation in school activities. McKinney-Vento Section 725(2) and Section 725(1)

Eligibility

Kathi Sheffel, the local homeless education liaison for Fairfax County (Va.) Public Schools, gave an expert’s perspective during the webinar. She described key considerations for school districts—especially during the novel coronavirus pandemic response efforts—to address fears, assess eligibility and coordinate services.

“We’ve really had to be more mindful than ever to protect confidentiality,” said Sheffel.

Julianelle repeated an attendee’s comment that it is “unsafe and irrelevant to track a student’s immigration status on paper,” she said. “Not only is it unsafe and irrelevant, but it is illegal.”

While federal law says schools cannot ask questions that may chill an undocumented student’s right to enroll, determining eligibility requires information about the student’s housing situation.

Liaisons may ask whether an undocumented student’s shared housing is due to loss of housing, economic hardship, or a similar reason (McKinney-Vento Section 725(2)(B)(i)), or where the student would go if they had to leave their shared housing situation.

Sheffel said liaisons and staff members should not ask students and families to repeat their homeless story following the initial registration interview in which the story has already been told to determine eligibility. She suggested schools help front office staff and others who would have contact with undocumented students to understand their various stories and experiences.

Sponsorship

Sponsorships do not change the analysis, according to Sheffel.

U.S. Citizenship and Immigration Services describes a sponsor as an individual who accepts legal responsibility for financially supporting a sponsored immigrant generally until they become U.S. citizens, are credited with 40 quarters of work, leave the U.S., lose lawful permanent resident status, or die.

Liaisons should start with the presumption that a sponsored student is McKinney-Vento eligible, and fact-find for evidence that the student is or is not living in an unstable situation. Some undocumented students also live in situations that are considered substandard or unstable and, therefore, qualify for homeless education services.

“It’s very unusual for us to see a sponsorship that is stable,” she said. “I’m not saying it never is, but it rarely is.”

Johnny Jackson covers homeless and at-risk students and other Title I issues for ESEA Now, a DA sister publication. Documents mentioned above are accessible to ESEA Now subscribers.