What All Educators Should Know: The Laws that Provide Undocumented, Unaccompanied Minors the Right to an Education in the United States
by Rachel Salas - March 12, 2019
This commentary provides an overview of the laws related to education for undocumented children in the U.S.
On February 5, 2019, President Donald Trump tweeted the following:
Tremendous numbers of people are coming up through Mexico in the hopes of flooding our Southern Border. We have sent additional military. We will build a Human Wall if necessary. If we had a real wall, this would be a non-event!
The Presidents continuing harsh focus on immigrants arriving through the southern border has spawned a concomitant turbulent political climate. The wall debate, in its substance and tone, divides communities and threatens to undermine the rule of law. The notion of the walls singular ability to stanch the supposed ill effects of northern migration squelches debate and ignores the complexity of immigration issues at the local, national, and international levels. The greater debate includes how to enforce and amend existing immigration laws, provide legal protections for immigrants already in the American judicial system, and addressing the many causes of immigration.
In 2018, the media extensively documented the thousands of desperate immigrants traveling in caravans fleeing poverty and violence in their home countries (Averbuch & Semple, 2018). Undocumented unaccompanied children under the age of 18 are an important subset of this group and the focus of this commentary. Unaccompanied children embark on the difficult journey to the United States for a myriad of reasons. The Office of Refugee Resettlement (ORR), the component of the U.S. Department of Health and Human Services responsible for caring for children apprehended by the Department of Homeland Security (DHS), describes the multiple and interrelated reasons as including: rejoining family already in the United States, escaping violent communities or abusive family relationships in their home country, or finding work to support their families in the home country (ORR, 2018a).
The ORR further documents the danger of the journey: The age of these individuals, their separation from parents and relatives, and the hazardous journey they take make unaccompanied alien children especially vulnerable to human trafficking, exploitation, and abuse (ORR, 2018a). The danger of trafficking and exploitation persists even upon arrival in the United States. Children may choose to remain clandestine because they lack proper immigration documentation, are fearful of apprehension and removal, or because they may already be victims of labor or sex trafficking at the hands of smugglers. As discussed below, federal law mandates that the ORR provide care, custody, and services to unaccompanied children while their immigration status is adjudicated. Children who are trafficking victims have additional resources, including eligibility for nonimmigrant status visas if they are assisting law enforcement in investigating and prosecuting traffickers (TVPA of 2000; U.S. Citizenship and Immigration Services, 2017).
In fiscal year (FY) 2017, over 41,435 undocumented, unaccompanied children were documented as having gained entry to the U.S. with 97% coming from Guatemala, Honduras, and El Salvador (U.S. Customs and Border Protection [CBP], 2017). This number increased to over 50,000 in FY 2018 (U.S. CBP, 2018) and four months into FY 2019, over 20, 000 unaccompanied children have been apprehended (U.S. CBP, 2019). President Trumps arguments for the wall and declaration of a national emergency have vilified these immigrants, regardless of their status, age, gender, and country of origin, as criminals, drug dealers, rapists, and animals (Korte & Gomez, 2018). His tone and rancor on the subject continue unabated even as the dispute between the Executive and Legislative branches about the emergency declaration proceeds towards judicial determination. Not to be overlooked in this constitutional struggle for supremacy are the rights and protections afforded to undocumented, unaccompanied children who have entered the United States, whether lawfully (seeking asylum) or unlawfully.
THE UNACCOMPANIED ALIEN CHILDREN (UAC) PROGRAM
Federal law defines undocumented children immigrants as Unaccompanied Alien Children or UAC. The Homeland Security Act of 2002 (HSA) defines a UAC as:
A child who has no lawful immigration status in the United States; has not attained 18 years of age; and with respect to whom: 1) there is no parent or legal guardian in the United States; or 2) no parent or legal guardian in the United States available to provide care and physical custody. (6 U.S.C. 279)
When law enforcement, typically the DHS, apprehends a UAC, the child is transferred to the ORRs care and custody and placed in temporary detention facilities. ORR personnel then provide UAC health screenings, medical attention if needed, temporary shelter, legal services, and education. UAC remain at these facilities until they can be placed in the least restrictive environment, such as the care of a family member or a foster facility or home, until their immigration status is adjudicated (ORR, 2018b). Children who are not apprehended are left on their own to find family, shelter, security, medical, legal, and educational services.
Presently, HHS operates a network of over 100 shelters in 17 states. The average length of stay for undocumented, unaccompanied children in the program is 57 days (ORR, 2018b). The overwhelming majority of UAC are released to suitable sponsors (family members or foster care) within the United States to await immigration proceedings (ORR, 2018b). The ORR provides education services at the shelter and accordingly, children are not enrolled at local schools until they are placed with a family or in foster care.
In this commentary, I use undocumented, unaccompanied children or minors, terms I prefer, and UAC (the federal term) interchangeably. As educators, we must all be aware of the federal laws that protect and provide educational access to undocumented, unaccompanied children.
OVERVIEW OF THE LAWS
Federal law protects UACs right to a public education through high school. The Department of Education advises:
All children in the United States are entitled to equal access to a public elementary and secondary education, regardless of their or their parents actual or perceived national origin, citizenship or immigration status. This includes recently arrived unaccompanied children, who are in immigration proceedings while residing in local communities with a parent, family member, or other appropriate adult sponsor. (U.S. Department of Education, 2014).
The Education Departments advisement speaks of equal access to education, a reference to the 14th Amendments Equal Protection Clause as interpreted by the Supreme Court in its 1982 landmark decision, Plyler v. Doe. The Equal Protection Clause provides that no state shall deny to any person within its jurisdiction the equal protection of the laws (U.S. Const. amend. XIV). The question before the Plyler Court was whether undocumented children were persons entitled to the same treatment as citizens and lawful residents under Texas school attendance laws. Texas law charged tuition to children who could not establish lawful admission into the United States. Plaintiffs were children of undocumented Mexican nationals. They argued the tuition requirement deprived them of the free education available to all persons within the school district.
The school district argued the tuition was a reasonable measure to offset the cost of the additional students and their attendant language and special education requirements. The district also argued that undocumented children, because of their immigration status, are not persons within the jurisdiction of Texas. The Court disagreed, stating that the definition of person is without regard to any differences of race, color, or of nationality (Plyler v. Doe, 457 U.S. at 212). Further, a persons unlawful presence within a states jurisdiction still entitles the individual equal protection of the host states laws (Plyler v. Doe, 457 U.S. at 210).
In its ruling that the state tuition requirement was unconstitutional, the Court also recognized that the children were subject to deportation like all persons who have entered the country unlawfully. Nonetheless, it concluded, until the government adjudicates an illegal entrants immigration status, the state may not deny a child a right as important as education. The Court stated: Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority (Plyler v. Doe, 457 U.S. at 222).
This right to education also includes eligibility for existing resources helpful to immigrant children. These programs, many of which are federally funded as part of the Elementary and Secondary Education Act (ESEA), include:
Services for educationally disadvantaged children (Title I). Immigrant children attending high-poverty schools may qualify.
Individuals with Disabilities Education Act (IDEA). Local education agencies may use these funds to evaluate children of any background suspected to have a disability. Qualifying children may then be eligible for special education and related services.
English Language Acquisition Programs. The ESEA provides subgrants to schools experiencing a significant increase in immigrant students. These funds can support improving instruction, tutoring and intensified instruction, and community programs.
McKinney-Vento Act, which provides assistance to children suffering from homelessness. UAC released from ORR shelters may be eligible for this assistance.
Migrant Education Programs. This educational and support funding is earmarked for youth who are migratory agricultural workers or fishers or the children of such workers or fishers (U.S. Department of Education, 2014).
While Plyler v. Doe clearly states that a childs immigration status cannot bar him or her from a free public education, there are several other legal protections that focus specifically on undocumented, unaccompanied children and their rights. The Flores Settlement Agreement of 1997 (Flores v. Reno, 507 U.S. 292), the Homeland Security Act of 2002 (HSA), and the Trafficking Victims Protection Reauthorization ACT (TVPRA) of 2008 all provide legal language that stipulates how unaccompanied undocumented children will be treated, transported, housed, educated, and cared for upon apprehension at a port of entry or other U.S. location as they await the adjudication of their immigration status and/or repatriation.
WHAT DO THESE LAWS MEAN FOR EDUCATORS AND EDUCATION?
While not all undocumented, unaccompanied children will be granted asylum or provided legal status or visas to remain permanently in the United States, it will take many months or possibly years to adjudicate the large number of UAC who are apprehended each year. Until these children have a court hearing in front of a U.S. immigration judge (their legal right) and a determination is made regarding their status, many of them will continue to live in local communities and by law must be provided access to free public education.
This means that undocumented, unaccompanied children, like all other children in classrooms throughout the U.S., have the right to be placed in a local public school and provided with free and appropriate educational services that lead to learning advancement (ORR, 2015). No matter the politics or the rhetoric coming from the President of the United States or his Administration, undocumented children and UAC in U.S. schools are entitled by law to a free public education.
Averbuch, M. & Semple, K. (2018, October, 20). Migrant caravan continues north, defying Mexico and U.S. The New York Times. Retrieved from https://www.nytimes.com/2018/10/20/world/americas/migrants-caravan-mexico.html
Department of Homeland Security (2017). U.S. Customs and Border Protection, Southwest border migration FY 2017. Retrieved from https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017
Department of Homeland Security (2018). U.S. Customs and Border Protection Southwest border migration FY 2018. Retrieved from https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018
Department of Homeland Security (2019). U.S. Customs and Border Protection Southwest border migration FY 2019. Retrieved from https://www.cbp.gov/newsroom/stats/sw-border-migration
Federal Register, The Daily Journal of the United States Government. (2018) Apprehension, processing, care, and custody of alien minors and unaccompanied alien children: A proposed rule by the Homeland Security Department and the Health and Human Services Department. Retrieved from https://www.federalregister.gov/documents/2018/09/07/2018-19052/apprehension-processing-care-and-custody-of-alien-minors-and-unaccompanied-alien-child
Flores v. Reno, 507 U.S. 292 (1993)
Homeland Security Act of 2002, 6 U.S.C. 1, et seq.
Jenkins, G. (2019, February, 5). Police in Riot Gear line up at the border to greet migrant caravan as U.S. vows: We stand ready. Fox News. Retrieved from https://www.foxnews.com/world/police-in-riot-gear-line-up-at-border-to-greet-migrant-caravan-as-us-says-we-stand-ready
Korte, G. & Gomez, A. (2018, May 16). Trump ramps up rhetoric on undocumented immigrants: They arent people. These are animals. USA Today. Retrieved from https://www.usatoday.com/story/news/politics/2018/05/16/trump-immigrants-animals-mexico-democrats-sanctuary-cities/617252002/
Office of Refugee Resettlement. (2015). An Office of the Administration for Children & Families. Children entering the United States unaccompanied: Section 3: 3.6 long term foster care. Retrieved from https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-3
Office of Refugee Resettlement. (2018a). About unaccompanied alien childrens services. Retrieved from https://www.acf.hhs.gov/orr/programs/ucs/about
Office of Refugee Resettlement. (2018b). Unaccompanied alien children program [Fact sheet]. Retrieved from https://www.acf.hhs.gov/sites/default/files/orr/orr_fact_sheet_on_unaccompanied_alien_childrens_services_0.pdf
Office of Refugee Resettlement. (2019). Unaccompanied alien children released to sponsors by state. Retrieved from https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-released-to-sponsors-by-state
Plyler v. Doe, 457 U.S. 202 (1982)
realDonaldTrump. (2019, February 5). Tremendous numbers of people are coming up through Mexico in the hopes of flooding our Southern Border. We have sent additional military. We will build a Human Wall if necessary. If we had a real wall, this would be a non-event! [Twitter Post]. Retrieved from https://twitter.com/realDonaldTrump/status/1092787440560078849
Trafficking Victims Protection Act of 2000, 22 U.S.C. 7101, et seq.
U.S. Citizenship and Immigration Services (2017). Victims of human trafficking and other crimes. Retrieved from https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes
U.S. Const. amend. XIV
U.S. Department of Education. (2014). Educational Services for Immigrant Children and Those Recently Arrived to the United States. Retrieved from https://www2.ed.gov/policy/rights/guid/unaccompanied -children.html