CHANGES TO INS REGULATIONS CREATE NO
OBLIGATIONS FOR SCHOOLS
Confusion over the interpretation of new Immigration and Naturalization Service regulations has resulted in several incidents in recent weeks where school districts have attempted to preclude the enrollment of resident students based on their immigration status. The following is issued by way of clarification.
In Plyler v. Doe, 457 US 202 (1982), the United States Supreme Court held that undocumented children living in the United States could not be excluded from public elementary and secondary schools based upon their immigration status. Although the recent changes to the INS code, effective April 12, 2002, do place additional obligations upon the holders of B-1 and B-2 visitors visas, they do not alter the Supreme Court ruling in Plyler or nullify the New Jersey administrative code provisions (N.J.A.C. 6A:28-2.4(c) and 6A:28-2.5(d)) which prohibit the barring of any student from public elementary and secondary schools on the basis of immigration/visa status, except for students on F-1 visas. Accordingly, school districts are still prohibited from requiring students to disclose or document their immigration status, making inquiries of students or parents that may expose their undocumented status or engaging in any practices that "chill" or hinder the right of access to public schools. Districts should continue to enroll all students who are between the ages of 5 and 20 who are domiciled in the district or who are otherwise entitled to attend pursuant to N.J.S.A. 18A:38-1 and the implementing regulations, N.J.A.C. 6A:28-2.1, et. seq.