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Slide 1: Perspective, Audience, and Topic

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Slide 1: Perspective, Audience, and Topic

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As an educator and a future school counselor, we are naturally life long learners. In being so, it is essential that we keep up with the ever changing legislation in education, the newest policies and laws. Educators are legally responsible to provide an educational service to all students while a school counselors must be advocates for all students.
This legal guide is geared toward K-12 professional school counselors who are charged with ensuring that every student on campus has equal access to a comprehensive school counseling program.

The topic covered in this Legal Guide is school counselors working with undocumented students in the K-12 setting. I choose this topic because besides immigration being a very controversial topic at the moment, these students are in our classrooms everyday. This past year I had three of these students that sat in my classroom. They did not know the language, customs or traditions of our school. It is important that we acknowledge that regardless of what is happening in politics, we have a duty to provide these students with not only an equal education opportunity, but that they feel supported and safe in our schools.

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Mrs. Wendy Brewer, one of the middle school counselors at Medina Valley Middle School, understands the circumstances when working with undocumented students. Mrs. Brewer begin her education career in El Paso, Texas as an elementary bilingual teacher sixteen years ago. "In my time as a classroom teacher, I had students   that were undocumented. I didn't ask them about their status, but I knew. I tried to provide them and their parents with resources as best as I could," she shared, (W. Brewer, personal communications, July 15, 2022). Mrs. Brewer felt that she could help students on a wider platform by becoming a school counselor, which took her out to a high school in Arizona. Mrs. Brewer shared that at that time, the Obama Administration had passed the Deferred Action for Childhood Arrivals, or DACA. After a few years, she found her way to San Antonio, Texas, and is currently a middle school counselor at Medina Valley Middle School. Brewer stated that Medina Valley is a growing district with changing demographics. Just this school year, the district received their first Afghanistan refugees. She said that keeping up with policy and legislation is extremely important in her position. She said that she is a member of ASCA, attends as many workshops and trainings as her schedule allows. The overturn of Roe v. Wade worries Brewer after seeing that the Supreme Court might be reconsidering other landmark court decisions, like Plyer v. Doe. "As a public school district, it is our responsibility to provide every student in our district with an education. Everyone should feel safe and welcomed here. I worry what would happen if the Supreme Court was to actually overturn these decisions. What would happen to these students?", she wondered (Brewer, personal communication, July 15, 2022).

As a school counselor, I have a legal and ethical obligation to all students on my campus regardless of their immigration status. Educating myself on the latest policies and legislation is critical in being able to provide the best resources for students in need, as well as advocate for all students.

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The ASCA position statement is an informative resource on school counselors working with undocumented students. It provides reference to statutory laws pertaining to equal services to all students and how this population has unique challenges due to their circumstances. It also provides a summary of the ethical duties of school counselor when working with all populations of students, specifically marginalized groups.

Citation: American School Counselor Association, (22 December 2020). The school counselor and working with students experiencing issues surrounding undocumented status. https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Working-with-Students-Exp

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(Adopted 2017; revised 2019)

ASCA Position

School counselors promote equal opportunity, a safe and nurturing environment and respect for all individuals regardless of citizenship status, including undocumented students and students with undocumented family members, understanding that this population faces a unique set of stressors. School counselors work to eliminate barriers that impede student development and achievement and are committed to the academic, career and social/emotional development of all students. "School counselors demonstrate their belief that all students have the ability to learn by advocating for an education system that provides optimal learning environments for all students" (ASCA, 2022, p. 1).

The Rationale

The 1982 U.S. Supreme Court ruling in Plyler v. Doe (1982) prohibits states from denying undocumented children a public K-12 education. In ruling the court stated that to deny these students an education would create a "lifetime of hardship" for the student, and it would create a "permanent underclass" (Eusebio & Mendoza, 2015).

Educators are on the front lines of implementing Deferred Action for Childhood Arrivals (DACA). Because of their unique position within a school, school counselors are able to support undocumented students by assisting these students in gathering documentation for DACA requests, advising them on the many academic, career and social/emotional opportunities made possible by DACA (Avila & Zellner, 2015).

A school counseling program is an integral component of the school's academic mission. Comprehensive school counseling programs, informed by student data and based on standards in academic, career and social/emotional development, promote and enhance the learning process for all students. The ASCA National Model ensures equitable access to a rigorous education for all students. Undocumented students and students with undocumented family members deserve the same services as all other students but face social, financial and legal barriers. These students need support to feel safe, in addition to needing assistance to find funding for any postsecondary educational goals, due to lack of Title IV federal financial aid that is not available to undocumented student in the form of grants, student loans or work-study.

Many students experience stressors due to:

separation from family

cultural differences

language barriers and interpretation for families

anxiety, fear, grief and loss regarding family members' detention and deportation

caretaker roles for family members

concerns about their futures

understanding how to navigate college access and availability to them

marginalization due to mixed cultures

PTSD due to traumatic immigration events

re-traumatization

Connecting with a school counselor will alleviate many of these stressors and fears, especially when individual counseling addresses the students' concerns. Having access to a qualified school counselor builds a support system needed at any age and will enable students to develop goals for their futures and feel safe and connected to their communities. School counselors recognize these stressors can be alleviated by intervention from a school counselor.

The School Counselor's Role

School counselors focus their skills, time and energy on direct and indirect services to all students, regardless of their citizenship, national origin, race, color, gender, sexual orientation, socioeconomic status or any other demographics. School counselors participate as members of the educational team and use the skills of leadership, advocacy and collaboration to promote systemic change as appropriate. Supporting all students with a variety of needs may include a diverse skill set, including knowledge about many legal factors affecting students.

"Undocumented youth, in particular, can experience high levels of acculturative stress from immigration-related issues such as separation from family and academic difficulties. The psychological costs of family separation, associated with the migration process and with U.S. immigration procedures such as detention and deportation, are well documented and, among children, may include symptoms of depression and anxiety" (U.S. Department of Education, 2015).

The role of the school counselor includes:

Advocating for the rights of all students, including undocumented students, by ensuring students are not barred from education based on foreign birth certificates, lack of a Social Security number or a home language other than English

Working with other district personnel so any information collected is uniformly applied to all students and not used to discriminate or bar certain students' access to education

Supporting undocumented students by helping them gain access to an equitable education that meets their needs and prepares them for postsecondary access, if necessary (e.g., referrals for ELL services, special education services and medical treatment)

Working with school and district personnel to promote awareness and to educate school counselors and school and district personnel, students, parents and the community on policy, procedures and rights of the students and their families and to eliminate discriminatory language and actions regarding these students and their families

Supporting the family with information about educational access and rights

Assisting students with seeking postsecondary goals, navigating college access and finding funding for their goals

Working with community partners and leveraging resources to provide support in keeping families intact, if possible, while supporting students who are separated from a parent due to deportation

Ensuring schools are a safe haven for undocumented students and will not divulge confidential information to any outside agencies without proper legal documentation

Providing counseling intervention and social/emotional support for students affected by immigration stressors, including assessment of possible trauma that they may have experienced

Keeping abreast of current policies and practices of postsecondary institutions regarding access for undocumented students

Advocating against the practice of separating children from their families at U.S. borders (ASCA, 2018)

Maintaining a database of community resources to support referrals in assisting families with various challenges related to issues surrounding undocumented status, including recovery associated with trauma resulting from separation

Summary

School counselors understand undocumented students face additional legal, financial and social stressors and need additional support with these barriers as well as assistance with postsecondary goals. School counselors have a responsibility to provide services to all students regardless of their citizenship status, to advocate for their access to services and to prevent discrimination against students by removing barriers impeding student development and achievement.

References

American School Counselor Association. (2022). ASCA ethical standards for school counselors. Alexandria, VA: Author. Retrieved from http://www.schoolcounselor.org/asca/media/asca/Ethics/EthicalStandards2016.pdf

American School Counselor Association. (2018). ASCA issues statement condemning the separation of children and families at U.S. borders. Alexandria, VA: Author. Retrieved from https://www.schoolcounselor.org/asca/media/asca/Press%20releases/ ASCA-statement-against-border-separation.pdf

Avila, K. & Zellner, M. (2015). Deferred action for childhood arrivals (DACA): Toolkit for educators. San Francisco, CA: Educators for Fair Consideration. Retrieved from http://e4fc.org/images/E4FC_DACAEducatorToolkit.pdf

Eusebio, C., & Mendoza, F. (2015). The case for undocumented students in higher education. San Francisco, CA: Educators for Fair Consideration. Retrieved from http://www.e4fc.org/images/E4FC_TheCase.pdf

Plyler v. Doe, 457 U.S. 202 (1982).

U.S. Department of Education. (2015). Resource guide: Supporting undocumented youth. Washington D.C.: Author. Retrieved from https://www2.ed.gov/about/overview/focus/supporting-undocumented-youth.pdf

Resources
Chicago Public Schools & Choose Your Future. (2016). Undocumented Students. Chicago, IL: Author. Retrieved from https://chooseyourfuture.cps.edu/high-school-college-career/undocumented-students/

Suárez-Orozco, C., Bang, H. J., & Kim, H. Y. (2011). I felt like my heart was staying behind: Psychological implications of family separations & reunifications for immigrant youth. Journal of Adolescent Research, 26(2), 222-257. doi:10.1177/0743558410376830

https://www.aft.org/our-community/immigration

https://www.nilc.org/wp-content/uploads/2015/11/immigration-reform-chart-2013-07-11.pdf

https://www.nilc.org/wp-content/uploads/2015/11/immigration-reform-chart-esp-2013-07-11.pdf

​*Note this position statement includes minor updates to reflect the revisions to the 2022 ASCA Ethical Standards for School Counselors.

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The School Counselor and Working with Students Experiencing Issues Surrounding Undocumented Status - American School Counselor Association (ASCA)

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Slide 4: U.S. Supreme Court Education Decisions to Overrule

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Slide 4: U.S. Supreme Court Education Decisions to Overrule

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The article provides a list of possible high court education cases that could be overturned.

One of the court decisions on the list that could face possible overturn is Plyer v. Doe (1982) and affirmative action decisions for college admissions which can have implications on race conscious K-12 programs.

Walsh, M. (11 May 2022). Conservatives’ checklist: U.S. Supreme Court education decisions to overrule. Education Week: Laws and Courts. https://www.edweek.org/policy-politics/conservatives-checklist-u-s-supreme-court-education-decisions-to-overrule/2022/05

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The leak of a draft U.S. Supreme Court majority opinion that would overrule the landmark 1973 abortion-rights decision Roe v. Wade has prompted commentators to discuss what other high court cases might be targets for reconsideration. Here are five education issues with precedents that have been targets of conservative justices or politicians in recent years, including one that was overruled just a few years ago after a lengthy effort.

Teachers' Union Fees (Decision Overturned)

For years, conservatives on the court sought to roll back and overrule a 1977 decision, Abood v. Detroit Board of Education, that had authorized the collection of service fees for collective bargaining from public employees who refuse to join their union. In 2018, in Janus v. American Federation of State, County, and Municipal Employees Council 31, they accomplished their goal, much to the chagrin of the teachers' unions. Justice Samuel A. Alito Jr., the author of the controversial leaked draft opinion that would overrule Roe, wrote the opinion for the 5-4 court in Janus that said objecting employees could not be compelled under the First Amendment to help fund union speech with which they disagreed.

Free Public Education for Immigrant K-12 Students

The high court's 1982 decision in Plyler v. Doe, which held that Texas violated the 14th Amendment's equal-protection clause by withholding funds from school districts for the education of undocumented immigrant children, is getting fresh attention after Texas Gov. Greg Abbott, a Republican, said he wants to "resurrect" a challenge to that decision. The state has complained for years about the costs of educating undocumented students. But some observers believe Abbott, who is seeking re-election this year, is chiefly raising this issue for political reasons.

'Church and State' Test

In the 1971 case of Lemon v. Kurtzman, the court struck down state salary supplements for teachers in religious schools and established a three-part test for courts to weigh government action regarding religion. The famous test asks whether the challenged program had a secular purpose, had the primary effect of advancing or inhibiting religion or created an excessive entanglement with religion. The Supreme Court has largely abandoned the Lemon test, but lower federal courts have continued to apply it. Several conservative justices have called for Lemon to be outright overruled, and two education cases pending decision before the court, one on state aid to private schools and the other on a coach's prayers on the football field, could give the justices the chance to do that.

Considering Race in School Admissions

Conservative justices have also been dreaming for years of overruling decisions that allow for the consideration of race in college admissions to ensure a diverse student body. Those rulings, which include 1978's Bakke v. Regents of the University of California and 2003's Grutter v. Bollinger, also hold implications for race-conscious programs in K-12 education. Next term, the high court is taking up affirmative action cases from Harvard University and the University of North Carolina that are poised to give conservative justices the opportunity to prohibit or more-strictly limit the use of race in schools.

Student Free Speech Rights

One justice has consistently called for overruling a landmark 1969 decision on student speech rights. Justice Clarence Thomas-currently the court's longest-serving member-has said he would overrule the Vietnam War-era Tinker v. Des Moines Independent Community School District precedent because "the First Amendment, as originally understood, does not protect student speech in public schools." But no other justice has signed on to his views, and just last term, the court ruled 8-1 that a school district violated a student's rights by punishing her for a vulgar off-campus social media message. The court stopped short of setting a broad rule for the regulation of off-campus speech, but the decision was viewed as injecting new vitality into Tinker. Thomas was the lone dissenter.

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Conservatives' Checklist: U.S. Supreme Court Education Decisions to Overrule

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The leak of a draft U.S. Supreme Court majority opinion that would overrule the landmark 1973 abortion-rights decision Roe v. Wade has prompted commentators to discuss what other high court cases might be targets for reconsideration.

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A majority of undocumented immigrants are graduating high school across the United States and not do have any protection from deportation (Jordan, 2022).

As a school counselor and educator, we may not ask or know the status of our students, but being aware of the what is going on in the world and how it is impacting some of our students is important in order to provide them with support and resources, if and when they need it.

Jordan, M. (16 June 2022). A decade after DACA, the rise of a new generation of undocumented students. The New York Post. https://www.nytimes.com/2022/06/15/us/daca-dreamers-immigration-reform.html

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A Decade After DACA, the Rise of a New Generation of Undocumented Students (Published 2022)

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A vast majority of undocumented teenagers are graduating high school this year without protection from deportation and the ability to legally work.

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Federal Level
While the right to an education is not a fundamental law, the 14th Amendment "may not deny any person equal protection of the laws" which extends to K-12 public education (U.S. Const. amend. XIV, § 1).

United States Constitution,  amend. XIV, § 1, https://www.archives.gov/milestone-documents/14th-amendment#:~:text=No%20State%20shall%20make%20or,equal%20protection%20of%20the%20laws.

State Level
The Texas Constitution states " “A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” (Texas Const. art. 7, § 1).

Texas Constitution, Article 7 § 1, https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1.htm

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Federal Level
The Family Educational Rights and Privacy Act (1974) protects the privacy of students’ personal information and their academic and behavioral records. This means that students can enroll in public K-12 schools without having to reveal their immigration status to school authorities, and therefore can attend school without fear that that information might be used as the basis for discrimination, intimidation, or deportation.

The Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 CFR Part 99. https://uscode.house.gov/view.xhtml?req=Family+Educational+Rights+and+Privacy++Act&f=treesort&fq=true&num=20&hl=true&edition=prelim&granuleId=USC-prelim-title20-section1232g

State Level
The Texas Education Code states that "any individual within the jurisdiction or geographical boundaries of the educational institution" will be provided equal educational services or opportunities from public educational institutions (TEC  § 1.002).

Texas Education Code, Equal Educational Services or Opportunities, § 1.002. https://statutes.capitol.texas.gov/Docs/ED/htm/ED.1.htm#1.002

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Federal Level
The U.S. Department of Education (1964) enforces that "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 otherwise subjected to discrimination under any program to which this part applies" under the Civil Rights Act of 1964.

U.S. Department of Education, Ensuring Equal Access to High Quality Education, Washington D.C. Retrieved from Office of Civil Rights. https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr100.html

A Dear Colleague Letter (2014) by the U.S. Department of Education states that  "Under Federal law, State and local educational agencies (hereinafter “districts”) are required to provide all children with equal access to public education at the elementary and secondary level". This Letter replaces one written in 2011. It also states that it enforces Titles IV and VI of the Civil Rights Act of 1964 that prohibit discrimination (Dear Colleague Letter, 2014).

Lhamon, C.E., Rosenfelt, P.H. & Samuels, J. (8 May 2014). Dear colleague letter. Washington D.C. U.S. Department of Education, Office of Civil Rights. Retrieved from: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405.pdf

State Level
The Texas Administrative Code for Texas professional school counselors Standard IV. states "Learner-Centered Equity and Excellence for All Learners: The certified school counselor promotes academic success for all learners by acknowledging, respecting, and responding to diversity while building on similarities that bond all people (19 TAC § 239.25)

Texas Administrative Code, 19 § 239.25, https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=7&ch=239&rl=15

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The U.S. Supreme Court in Plyer v. Doe (1982) voted that public schools can not  deny undocumented children in K-12 an educational opportunity (Plyer v. Doe, 1982).

Plyer v. Doe, 457 US 202 (1982). https://www.uscourts.gov/educational-resources/educational-activities/access-education-rule-law

State Level
"In 1975, the Texas Legislature authorized local school districts to deny enrollment in public schools to foreign-born children who were not “legally admitted” to the United States. Shortly thereafter, a group of students from Mexico who could not establish that they were “legally admitted” brought a class action lawsuit challenging the policy. The  district court, after making extensive findings of fact, held that the policy violated the Constitution and was also “preempted” by federal immigration law. A federal appeals court upheld the injunction, although its decision rested on constitutional rather than preemption grounds. The school district then filed a petition with the Supreme Court, which granted the case for review" (American Immigration Council, 2016).

American Immigration Council, (2016 October 24).

Public education for immigrant students: understanding Plyer v. Doe. https://www.americanimmigrationcouncil.org/research/plyler-v-doe-public-education-immigrant-students

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Slide 10: Northside ISD Newcomer ESL program

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Slide 10: Northside ISD Newcomer ESL program

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Northside ISD (NISD) a school district in the city of San Antonio has created a program called the Newcomer ESL Program. This program provides a specially designed curriculum that helps acculturate recent immigrant English learners to their new country, new school, and new language within a safe, supportive environment (NISD, n.d.)

Northside ISD, (n.d.). New comer program. Retrieved on July 16, 2022. https://www.nisd.net/district/bilingual-esl/esl/newcomer-program

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At Northside ISD we believe every student deserves the highest quality education. Students are offered an education which honors their voice and prepares them to engage, contribute, and succeed.

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Slide 11: ASCA Ethical Standards for School Counselors 

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Slide 11: ASCA Ethical Standards for School Counselors 

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The ASCA Ethical Standards for School Counselors states that school counselor have a responsibility to all students. One of the bulleted standards in the Preamble (2016) reads " Equitable access to school counselors who support students from all backgrounds and circumstances and who advocate for and affirm all students regardless of but not limited to ethnic/racial identity; nationality; age; social class; economic status; abilities/disabilities; language; immigration status; sexual orientation; gender identity; gender expression; family type; religious/spiritual identity; and living situations, including emancipated minor status, wards of the state, homelessness or incarceration. "
This statement makes it clear that every student that attends a public school has equitable access to a school counselor, and that school counselors must serve as a voice for underserved populations

American School Counselor Association, (2016). ASCA ethical standards for school counselors. https://www.schoolcounselor.org/About-School-Counseling/Ethical-Legal-Responsibilities

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Ethical and legal standards do not always align in education. As an educator and as someone who is strongly ethical, the law sometimes does not seem to make sense with what seems the "right thing to do."  However, I also understand that these laws are in place for a reason and have provided me and my family with opportunities that we might not have had otherwise. As a Latino woman who grew up in a small rural south Texas town, opportunities were not abundant; however, due to the laws in place that provided me with bilingual and migrant  services in elementary school, I was able to graduate from high school, and attend college on scholarships and financial aid. There is also laws in place that helped my family through some of the toughest times. These laws helped support my journey and get me where I am today. Ethics are extremely important to me, and I will always do what is right unless there is a law that prevents me from it. Fortunately, I can still advocate for what I believe is right without breaking or undermining laws that might not always be in the best interest of everyone.

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Under Federal law, State and local school districts are required to provide all children with equal access to public education (U.S. Dept. of Education, 2015).

The United States Supreme Court held in the case of Plyler v. Doe, 457 U.S. 202 (1982), that a State may not deny access to a basic public education to any child residing in the State, whether present in the United States legally or otherwise.

School districts may not request information with the purpose or result of denying access to public schools on the basis of race, color, or national origin (U.S. Dept. of Education, 2015).

Do not inquire about a student’s immigration status. Students may have legitimate fears about disclosing this type of  information (U.S. Dept. of Education, 2015).

Understand students’ privacy rights of their educational record (Stone, 2017).

As a school counselor, seek resources for undocumented students’ broader needs (Stone,  2017).

Know the most recent law or legislation. Ask questions until you fully understand your state's position on supporting undocumented students. This will be the best way to know who to advise students and their parents and provide them with the best resources available (Stone, 2017).

Stone, C. (1 May 2017). Support undocumented students. America School Counselor Association. https://www.schoolcounselor.org/Magazines/May-June-2017/Support-Undocumented-Students

U.S. Department of Education, (20 October 2015). Resource guide: Supporting undocumented youth. https://www2.ed.gov/about/overview/focus/supporting-undocumented-youth.pdf