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New Jersey Education Rights Trial Lawyer Discusses Immigrant Students and the Right to Free and Appropriate Public School Education

Or... "Our Society Depends on Educating Everyone."

In 1982, the United States Supreme Court (SCOTUS) held that a state law allowing school districts to deny enrollment to school-age undocumented immigrants violated the Federal Constitution's Equal Protection Clause. William Brennan, writing for a majority of the court, explained that the fourteenth amendment's guarantee of equal protection was designed to ensure "the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit."

Nothing in that quote, and nothing in that case, has anything to do with citizenship; or at least, it shouldn't. Before we get into what Jersey requires, I want to make sure that we're both on the same page. 

If you have common sense and you understand that reality is as it is and not as you'd like it to be, then you appreciate that any society is comprised of "citizens" and "non-citizens." You also understand that an evolving society - and what society isn't evolving at all times? - experiences changes, over time, in terms of how many citizens there are versus non-citizens in a given geographical region, what the demographic makeup is of both groups in terms of religiosity, ethnicity and national origin, etc.

In other words, change is inevitable. Everyone who understands science understands this, and nobody can ever fix a society in a "static" place for very long. Any "successful" attempt to do so dooms the society to stagnation, eventual rot from within, and, ultimately, destruction.

If a society depends on its best and brightest to inspire, lead, solve problems and do things from which everyone else benefits, one must ask oneself what that has to do with citizenship when, clearly, it has everything to do with innate capability and opportunities to use those capabilities for the betterment of all; citizen or not.

Put even more bluntly and simply, the kid who finds the cure to cancer might be an undocumented immigrant. Do you want to educate that undocumented alien or do you want to get cancer?

I get it. That's a fairly dramatic question, but you get my point, right? Where is the "percentage" in purposefully denying a certain segment of children that already live here (meaning in New Jersey) an education just like everyone else's? What's the worst thing that can happen other than that you spend fractions of a penny more than you would have spent on the entire body of "citizen" children? For that tiny little investment, you may get tremendous dividends in terms of cultural integration, leadership, political power, scientific achievement, the sky's the limit. and you prevent those kids from falling into crime or use of public benefits for having been denied an education. Instead of taking resources from us - the criminal justice process, public assistance, unpaid costs of medical care, wages earned without taxes withheld - you get tax-paying, contributing members of "society."

So how does this work in New Jersey? What does NJ "owe" to children here?

There was a survey by the American Civil Liberties Union (ACLU) in 2006 to 2008 that found that one in four New Jersey public schools surveyed were asking illegal questions of parents attempting to send their kids to school, such as asking for social security numbers or other questions designed to get around the Supreme Court's instruction for the 1982 case. In other words, these school districts were trying to "politicize" whether or not a kid could get an education by trying to "discover" whether the kid was documented or not.

In 2009 to 2014, the State Department of Education sent memoranda to districts but did not issue a formal directive or monitor district compliance. That having been said, most districts abandoned the practice of formally requiring social security numbers in order to register children for school. But not all of them. Yet where some districts continued to impose illegal barriers to the registration of immigrant children, they tended to remove those barriers after learning that the restrictions clearly violated established law. That's actually kind of good to hear, because what it means is that not all school districts that were violating the law intended to "get around" the requirement. Some just didn't know.

In 2014, for example, it became clear that the Butler public school district, in Morris County, had developed a new registration requirement that - intentionally or not - prevented undocumented immigrants from registering their children for school. While Butler did not directly require a social security number, it required parents to present one of three forms of identification, all of which require a social security number to obtain in the first place. Butler required that parents produce either a driver's license, a non-driver's state ID or a county identification card, which at the time Morris County didn't issue.

The ACLU sued Butler. The case immediately settled, with the district agreeing to change its policy and remove the restricted identification requirement from the list of items needed to enroll children. After settling that lawsuit, the ACLU undertook its third survey of districts in 2014. This survey evaluated online registration forms to determine whether schools were requiring parents to produce identification to register their children.

As a result, the ACLU sent letters to the State Department of Education and to 136 school districts with problematic policies, reminding them that age, residency and immunizations were the only valid criteria in determining registration eligibility. More than one hundred districts changed their policies in the months that followed.

However, not every district did. Several districts failed to remedy their improper requests for parents' or guardians' photographic identification and a handful mandated forms of identification that required a social security number right on its face or a social security number to obtain documents in the first place, such as driver's licenses. The ACLU sued each district, and within a week, each had settled by agreeing to change its policy.

In 2016, another survey was done and once again, educational districts continue to impose illegal barriers to educational access for children whose parents lack social security numbers. ACLU and private counsel (like Costello & Mains) continue to sue over denial of a free and appropriate public education.


The Supreme Court has said that education "has a fundamental role in maintaining the fabric of our society. We cannot ignore the significant social costs borne by our nation when select groups are denied the means to absorb the values and skills upon which our social order rests."

How much clearer can that be? Again, we're back to the beginning, which is that it shouldn't matter at all whether or not a kid is a citizen or not. What should matter is what kind of adult that kid's going to become. You want a smart, law abiding, successful neighbor who owns a home, pays taxes and contributes to the economy and our general social welfare? Or do you want someone who, the education system having been denied him, turns to crime or other marginal behaviors which ultimately costs you far more than educating him would have?

You're pissed about the fact that "immigrants" (of whatever stripe you've got a problem with) are "taking" things away from "citizens?" You're one of those people? If you are, then I know that appealing to your reason and reminding you that you and every descendant you have was an immigrant (willing or not) won't matter, nor will it matter to put science in front of you or the principles I've set forth above. For you, it's all about that piece of paper that says whether or not someone is a "citizen." If they are, then they get what you get. If they're not, screw them, right?

Forget immoral, forget unjust, and forget un-American. To those sorts of people, those appeals fall on deaf ears. But even those people, will all their cognitive dissonance, has some degree of self-interest, don't they?

You want to spend a few more pennies to educate kids or do you want cancer? 

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