September 16, 2010 Student Registration Guidance

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KEEPING YOU INFORMED…

 We are writing to make you aware of guidance recently issued by the New York State Education Department (“the Department”) regarding student registration. Pursuant to the Department’s Student Registration Guidance dated August 30, 2010, school districts may not deny resident students a free public education on the basis of their immigration status. This is because undocumented children, just like U.S. citizens’ children, have the right to attend school full-time as long as they meet the age and residency requirements established by State law. Therefore, school districts may not ask for Social Security numbers, visas, or other information that would indicate a child’s immigration status while registering students for school.

You are encouraged to review your policies and forms relating to student enrollment to ensure that they are in full compliance with the Department’s Guidance, as well as the most recent case law and statutory and regulatory provisions, all of which are summarized below.

Age

Education Law § 3202(1) provides that a person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools in the district in which the person resides without the payment of tuition. Moreover, pursuant to Education Law § 3205, school districts must ensure that all students within the compulsory school age attend full-time instruction. In order to ensure that these students are in fact residents entitled to a free public education at district expense, school districts often require documentation to confirm a student’s eligibility for admission to school.

The Commissioner of Education (“the Commissioner”) has stated that, if a parent has a birth certificate or record of baptism (giving the date of birth), no other form of evidence may be used to determine a child’s age. Where a birth certificate or record of baptism is not available, a passport (including a foreign passport) may be used to determine a child’s age.

If a birth certificate, record of baptism and passport are unavailable, the district may consider certain other documentary or recorded evidence to determine a child’s age. Below is a non-exhaustive list of examples of documents which may be used to establish a child’s age:

    • Official driver’s license
    • State or other government-issued ID
    • School photo ID with date of birth
    • Consulate identification card
    • Hospital or health records
    • Military dependent ID card
    • Native American tribal document
    • Record(s) from non-profit international aid agencies and voluntary agencies (VOLAGs)

 
Residency

Undocumented students have a constitutional right to attend public elementary and secondary schools for free if they are district residents. The Commissioner has noted that residency is established based on two factors: physical presence as an inhabitant within the district and intent to reside in the district. A student’s residence within the district is not determined or influenced by his or her immigration status.  Accordingly, at the time of registration, schools must avoid asking questions related to immigration status, or requesting information that may reveal a child’s immigration status (such as asking for a Social Security number). If a district needs to collect certain data pursuant to State and/or federal laws that could reveal a child’s immigration status, it should do so after the student has enrolled in school so as not to inadvertently give the impression that information related to immigration status will be used in making enrollment decisions.  Below is a non-exhaustive list of examples of documents which may be used to establish a student’s residency:

    • Pay stub
    • Income tax form
    • Deed or lease to house or apartment
    • Utility or other bills sent to the student’s home address
    • Membership documents (such as library cards) establishing residency
    • Voter registration document
    • Official driver’s license, learner’s permit or non-driver ID
    • State or other government-issued ID

 
We have enclosed a copy of the Department’s Guidance. We encourage you to contact us if you have any questions regarding this Memorandum.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW AND MAY CONSTITUTE ATTORNEY ADVERTISING. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2010

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