The Rights of Immigrant Students and English Language Learners in the Public Schools

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The Rights of Immigrant Students and English Language Learners in the Public Schools

  1. 1. The Rights of Immigrant Children and English Language Learners in the Public Schools TESOL 2011 Annual Convention New Orleans, Louisiana March 18, 2011 © 2011 Migrant Legal Action Program, Inc.
  2. 2. Roger C. Rosenthal, J.D. <ul><li>Executive Director </li></ul><ul><li>Migrant Legal Action Program </li></ul><ul><li>Washington, D.C. </li></ul>
  3. 3. I. Overview of the Issues <ul><li>Demographic Changes </li></ul><ul><li>Confusion regarding the law and obligations of a school district </li></ul><ul><li>Importance of school for all children </li></ul>
  4. 4. Migrant ≠ immigrant ≠ undocumented
  5. 5. II. Right to attend free public school <ul><li>U.S. Supreme Court case of Plyer v. Doe </li></ul><ul><li>History of the case </li></ul><ul><li>Holding of the case and its meaning </li></ul>
  6. 6. III. Social Security Numbers Cannot Be Required for School Admission <ul><li>Impact of Plyer </li></ul><ul><li>Privacy Act of 1974 </li></ul>
  7. 7. IV. Fears of Immigrant and LEP Parents <ul><li>Anti-Immigrant legislation; raids; audits </li></ul>
  8. 8. Anti-Immigrant Legislation Arizona Oklahoma Hazelton, PA Farmers Branch, TX
  9. 9. &quot;Congress hasn't moved forward with the legislation that the administration envisioned, which puts ICE in the middle of the fray.  The only thing happening with immigration in the country is enforcement.” Doris Meissner - Former Commissioner of the Immigration and Naturalization Service (INS) in the 1990's, and currently a senior fellow at the Migration Policy Institute, quoted in a Washington Post story entitled, &quot;Immigration policies sparking tensions within ICE&quot; by Andrew Becker, August 27, 2010, page B3.
  10. 10. Raids and Deportations
  11. 11. Employer Audits
  12. 12. E-Verify
  13. 13. Secure Communities Program
  14. 14. V. Other Enrollment Issues <ul><li>Immigration Documents </li></ul><ul><li>Birth Certificates </li></ul><ul><li>Immunizations—Public Health Concerns </li></ul>
  15. 15. VI. F-1 Visa Program <ul><li>This non-immigrant visa program allows high school students from another country to attend high school for one year. </li></ul><ul><li>The student’s parents must contact the school district where the student wishes to enroll and the district decides whether it wishes to enroll the student. There is no obligation for the district to do so. </li></ul><ul><li>If the district chooses to enroll the student, the district then so informs the student’s parents and also tells the parents the amount of tuition which must be paid to the district. The tuition amount is calculated based on a formula found in federal immigration law and based on the per capita expenditures of that district. </li></ul><ul><li>Only after such payment has been received, does the district begin work to support an F-1 visa for the student. </li></ul>
  16. 16. Clearly, all school districts receiving F-1 visa students know that such students are arriving in the district. The F-1 visa program does NOT give a district any reason to inquire of the students about their visa documents or to demand that such visas be produced. Information on the F-1 Visa program is found at: http://travel.state.gov/visa/temp/types/types_1269.html
  17. 17. VII. School Lunch and Breakfast <ul><li>No Social Security Number is Required </li></ul><ul><li>Application and Instructions Must Be Translated or Explained in the Parent’s Dominant Language </li></ul><ul><li>Categorical Eligibility for Homeless Children, Migrant Children, and Runaway Youth </li></ul>
  18. 18. Part 5. Signature and Social Security Number (Adult must sign) An adult household member must sign the application. If Part 4 is completed, the adult signing the form must also list his or her Social Security Number or mark the “I do not have a Social Security Number” box. (See Privacy Act Statement on the back of the page   I certify (promise) that all information on this application is true and that all income is reported. I understand that the school will get Federal funds based on the information I give. I understand that school officials may verify (check) the information. I understand that if I purposely give false information, my children may lose meal benefits, and I may be prosecuted.     Sign here: X_________________________Print name:________________________Date: ______________ Address:_____________________________________________ Phone Number:______________________ Social Security Number: __ __ __ - __ __ - __ __ __ __ I do not have a Social Security Number
  19. 19. Privacy Act Statement: This explains how we will use the information you give us. The Richard B. Russell National School Lunch Act requires the information on this application. You do not have to give the information, but if you do not, we cannot approve your child for free or reduced price meals. You must include the social security number of the adult household member who signs the application. The social security number is not required when you apply on behalf of a foster child or you list a Food Stamp Program, Temporary Assistance for Needy Families (TANF) Program or Food Distribution Program on Indian Reservations (FDPIR) case number or other FDPIR identifier for your child or when you indicate that the adult household member signing the application does not have a social security number. We will use your information to determine if your child is eligible for free or reduced price meals, and for administration and enforcement of the lunch and breakfast programs. We MAY share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs, auditors for program reviews, and law enforcement officials to help them look into violations of program rules.
  20. 20. VIII. Language Rights Issues <ul><li>Lau v. Nichols </li></ul><ul><li>414 U.S. 563 (1974) </li></ul><ul><li>Title VI of the Civil Rights Act of 1964 states: </li></ul><ul><li>“ No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” </li></ul>
  21. 21. The U.S. Supreme Court held (1) that discrimination on the basis of language proficiency is discrimination on the basis of national origin under Title VI of the Civil Rights Act of 1964 and (2) that treating people with different needs in the same way is not equal treatment. In Lau , the U.S. Supreme Court stated, in part, “Basic English skills are at the very core of what these public schools teach. Imposition of a requirement that, before a child can effectively participate in the educational program, he must already have acquired these basic skills, is to make a mockery of public education. We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.”
  22. 22. <ul><li>Castaneda v. Pickard </li></ul><ul><li>648 F.2d 989 (5 th Cir. 1981) </li></ul><ul><li>The Court of Appeals articulated a three-part test for assessing a school system’s treatment of limited English proficient students. The standard requires (1) a sound approach to the education of these students; (2) reasonable implementation of the approach; and (3) outcomes reflecting that the approach is working. </li></ul>
  23. 23. IX. Practical Issues <ul><li>School districts MUST translate or interpret documents for parents not fluent in English (into their language.) This does not have to be in writing, so long as the parent understands what is in the content of the document. </li></ul>
  24. 24. Documents which must be translated or explained in the parent’s native language include: <ul><li>Permission slips for field trips </li></ul><ul><li>Manuals which have information about rules for students or parents that are enforced by district personnel. Often these rules pertain to disciplinary procedures, school hours, truancy, who is permitted to pick up a student, dress code, etc. </li></ul><ul><li>Report Cards </li></ul>
  25. 25. Parent-teacher conferences must be interpreted! <ul><li>It is the legal obligation of the district to provide the interpreter. </li></ul><ul><li>The district cannot ask the parent to provide an interpreter. </li></ul>
  26. 26. Translators/Interpreters provided by the district must be competent! It is illegal and inappropriate for a school district to use children/students to do the translation/interpretation!
  27. 27. Placement /Retention Placement cannot be made based on English language proficiency. Placement should be age appropriate. For example, if the child is 9 years old, the child should be placed in fourth grade.
  28. 28. Retention cannot legally be made based on lack of English language proficiency.
  29. 29. X. Special Ed and ELLS <ul><li>Students who are eligible for Special Education and ESL services are protected by both IDEA and Title VI. </li></ul>
  30. 30. Testing ELLs for Special Education
  31. 31. XI. Supplanting <ul><li>School districts cannot use Title I or Title III funds for basic ESL programs. </li></ul><ul><li>This issue will be reviewed during ED monitoring/audits . </li></ul>
  32. 32. XII. Access to Post Secondary Education: DREAM Act Immigrant children in almost all states are not barred from enrolling in any public institution of higher learning (except South Carolina and Alabama).
  33. 33. Undocumented students have to pay out-of-state tuition except in: California Illinois Kansas Nebraska New Mexico New York Oklahoma Texas Utah Washington Wisconsin
  34. 34. Children who are undocumented do not have a right to federal grants or loans.
  35. 35. The proposed legislation generally called the DREAM Act, which has been introduced for many years, but has not yet passed both houses of Congress, would provide access to some forms of federal financial assistance for these students and give them a path to a form of legal status.
  36. 36. XIII. Finding Allies
  37. 37. XIV. Conclusion/Questions
  38. 38. Roger C. Rosenthal Migrant Legal Action Program 1001 Connecticut Avenue, N.W. Suite 915 Washington, D.C. 20036 202-775-7780 [email_address] www.mlap.org

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