How Do You Verify Age and Residency? Recent DOJ/OCR Guidance Reminds Districts Not to Discourage Student Enrollment or Exclude Students based on Citizenship or Immigration Status

In the landmark case of Plyler v. Doe, 457 U.S. 202 (1982), the United States Supreme Court held that a state may not deny access to a basic, free public education to a child because that child is undocumented.  In addition, Title VI of the Civil Rights Act of 1964 (Title 42, United States Code, section 2000d) prohibits discrimination on the basis of race, color, or national origin, and the implementing regulations promulgated by the U.S. Department of Justice and the U.S. Department of Education’s Office for Civil Rights specifically prohibit “…criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin.”  (Title 28, Code of Federal Regulations, section 42.104(b)(2); Title 34, Code of Federal Regulations, section 100.3(b)(2).)

The DOJ and OCR have long considered school enrollment policies or practices that discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status to violate the foregoing civil rights requirements.  However, according to the “Dear Colleague” letter jointly issued by the DOJ and OCR on May 8, 2014, some school districts in the U.S. have continued to utilize such discriminatory enrollment practices in violation of federal law.  As a result, DOJ and OCR updated their previous guidance in this area to assist school districts in complying with their obligations in key aspects of the student enrollment process, including verification of residency and proof of age.

Under California law, school districts are required to verify that a student meets the residency requirement for school attendance.  (Education Code section 48204.1; Title 5, Code of Regulations, section 432(b)(1)(F)(2).)  [Note: This does not include a student who qualifies as a “homeless child or youth” under the federal McKinney-Vento Homeless Assistance Act (Title 42, United States Code, section 11301 et seq.), who shall be immediately enrolled in school notwithstanding the absence of any residency documentation.]  The Education Code requires school districts to accept “reasonable evidence” of residency from parents or legal guardians, and further provides a non-exhaustive list of the types of documents that can be used for that purpose.  Based on the DOJ/OCR guidance, California school districts may continue to require “reasonable evidence” of residency within district boundaries, but may not: a) require documents that would bar a student whose parents are undocumented from enrolling (e.g., voter registration record, state-issued driver’s license or identification card); or b) make inquiries about a student or parent’s citizenship or immigration status, since such status is irrelevant to establishing school district residency and it may discourage parents to enroll their children in public schools.

Similarly, California law requires school districts to collect proof of age from each child’s parent or guardian to verify that the child satisfies the minimum age requirements for admission to school.  (Education Code section 48002; Title 5, Code of Regulations, section 432(b)(1)(B) and (C).)  The Education Code grants school district governing boards the authority to determine the method for proof of age, and provides a non-exhaustive list of the types of documents that can be used.  As with residency verification, according to the DOJ/OCR guidance, California school districts may continue to require proof of age documents to comply with state enrollment eligibility law, but districts may not require proof of age documents that prevent or discourage students from enrolling, such as a birth certificate, which an undocumented student may lack, or which may indicate a foreign place of birth.

In light of this DOJ/OCR guidance, school districts should review their student enrollment policies and procedures to determine whether or not they include any documentation requirements or make any inquiries that operate to bar or discourage the enrollment of students based on the students’ or their parents’ citizenship or immigration status, and consult with legal counsel for assistance as needed.

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