Challenges in Enrolling Undocumented Children

Many communities are receiving an increase in the number of undocumented persons, including school age children. Some children are with relatives or are meeting sponsors. Others are unaccompanied. What is the obligation of the local school district? All school age students are eligible to attend public school if they satisfy residency, age, and immunization requirements. Undocumented children and unaccompanied children have that same right. While there are unique challenges to enrolling these children, the challenges can be overcome.

Proof of Residency

School age children must reside in the District in order to enroll in school. In this context, “residency” means “domicile,” which means physical presence with an intention to remain in the District. For purposes of enrollment, Districts may request that the parent or “person in parental relation to the child” submit proof of residency and age. The District may not, however, request a Social Security card or number or any information which may reveal the immigration status of the child, the child’s parent, or the person in parental relation. This includes not asking for information concerning visas or other documentation indicating immigration status. The Supreme Court in the case of Plyler v. Doe, 457 U.S. 202 (1982), ruled that the undocumented or non-citizen status of a student is irrelevant to that student’s entitlement to an elementary and secondary public education. Asking for this information has a “chilling effect” and may deter parents or guardians from enrolling eligible children.

Evidence typically establishing the child’s physical presence in the District for residency purposes may include, but is not limited to:

• A copy of a residential lease or proof of ownership of a house or condominium, such as a deed or mortgage statement;

• A statement by a third-party landlord, owner or tenant from whom the parent(s) or person(s) in parental relation leases or with whom they share property within the District, which may be either sworn or unsworn; or

• Such other statement by a third party relating to the parent’s or person in parental relations’ physical presence in the District.
Alternatives to this evidence of District residency include, but are not limited to:

• A pay stub;

• An income tax form;

•Utility or other bills;

• Membership documents based upon residency (e.g., library cards);

• Voter registration document(s);

• Official driver’s license, learner’s permit or non-driver identification;

• State or other government-issued identification; or

• Evidence of custody of the child, including but not limited to judicial custody orders or guardianship papers.

The District may also require the parent or person in parental relation to provide a residency affidavit. Documents issued by federal, state, or local agencies (e.g., a local social service agency, federal office of refugee resettlement) are also acceptable to establish residence in the District. They are particularly helpful in the case of undocumented families.

Even without documentation, any child who requests enrollment must be immediately enrolled on a conditional basis, pending determination of the child’s District residency status. The child is expected to attend school the next day, or as soon as practicable during the residency determination period.

Unaccompanied children living in temporary housing within a District are considered “Unaccompanied Homeless Youths” (UHY) under the federal McKinney-Vento Homeless Assistance Act, and they too may request enrollment. These children also must be enrolled immediately, even without the documents normally required for enrollment.

Proof of Age

Proof of age upon enrollment is required for all students in New York, including undocumented students. Where a certified transcript of a birth certificate or record of baptism (including a certified transcript of a foreign birth certificate or record of baptism) giving the date of birth is available, it must be used, and no other evidence may be used to determine the child’s age. If the child’s birth certificate or record of baptism is not available, a passport (including a foreign passport) may be used. Where no birth certificate, record of baptism, or passport is available, other evidence in existence two years or more can be used to determine a child’s age. The evidence may include but is not limited to the following:

• Official driver’s license.

• State or other government issued identification.

• School photo identification with date of birth.

• Consulate identification card.

• Hospital or health records.

• Military dependent identification card.

• Documents issued by federal, state or local agencies (e.g., local social service agency, federal office of refugee resettlement).

• Court orders or other court-issued documents.

• Native American tribal documents; or

• Records from non-profit international aid agencies and voluntary agencies.

Diligence will usually yield acceptable proof of age -- but take special care to ensure that the proof has been in existence for two or more years.

Proof of Immunization

Proof of immunization for all students as required by the New York State Public Health Law. No child may be allowed to attend school for more than fourteen days without acceptable evidence of immunization. The school principal can extend this period to thirty days where a student is transferring from out-of-state or from a different country and can show a good faith effort to obtain the necessary proof of immunization. This can be particularly difficult for undocumented students. Through its McKinney-Vento liaison, School Districts must assist UHY students in attempting to secure any prior immunization records. If the records cannot be obtained, the liaison must assist the child in obtaining the necessary immunizations and a medical examination.

Please keep in mind School District enrollment forms, procedures, instructions, and requirements for the determination of student residency and age must be available to the public. We recommend school districts review their enrollment materials and train district staff to ensure compliance with the regulations, the McKinney-Vento Act, and Department of Education guidance related to the enrollment of undocumented and unaccompanied children. If you have questions or would like our assistance, please contact our firm.