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Slide #1 Professional Perspective, Audience and Topic

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Slide #1 Professional Perspective, Audience and Topic

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As a future secondary school counselor in a middle school and high school setting, I would like to review the legal background and laws associated with maintaining confidentiality while counseling undocumented students. I choose the topic of school counselors working with undocumented students to better understand how to serve this population in Texas where many students are undocumented or have families with undocumented members. This population can be scared to ask for help due to fears of deportation. As school counselors, it is our duty to support students from undocumented families by "eliminating systemic barriers of bias" (ASCA, 2022). There is a balance between student support, confidentiality, and respect for the current laws to prevent the chance of negatively impacting stakeholders.

Reference:

ASCA (2022). American School Counselor Code of Ethical Standards. Alexandria, VA: Author.

https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#:~:text=School%20counselors%3A,their%20identity%20and%20psychosocial%20development.

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Summary

This Legal Guide addresses the relevant laws that relate to undocumented immigrant students and their families in terms of the duties of school counselors to maintain confidentiality, prepare students for post graduation, and to be knowledgeable on current laws.

Relevance:

Texas has the highest amount of high school students that are undocumented, more than 18,000 students in 2023 (Tamez-Robledo, 2024). As a counselor, it is important to understand how to best support this student population and earn their trust as they deal with additional hurdles that legal citizens do not have to face. A counselor should understand that undocumented students have the same right to confidentiality as citizens and that schools are considered safe havens where migration officials can not deport students.

Emerging Trends: Changing Laws

As the political climate changes and the immigration debate continues, the atmosphere constantly changes and counselors should strive to keep up to date in order to be a source of information. DACA is one program which was threatened by a judicial court case, and then reaffirmed by President Biden this year. Unfortunately, not many graduates are eligible for the program and must continue to live in the shadows and risk deportation. Some school districts are building trust with undocumented students and their families by serving as sanctuary schools.

Reference:

Tamez-Robledo, N (2024, June 14). Undocumented high school students are now the ‘post-DACA generation. EdSurge. https://www.edsurge.com/news/2023-06-14-undocumented-high-school-students-are-now-the-post-daca-generation#:~:text=By%20Nadia%20Tamez%2DRobledo%20Jun%2014%2C%202023&text=This%20year%20marks%20the%20first,immigrant%20advocacy%20group%20FWD.us

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The position statement found on the ASCA website is entitled, The School Counselor and Working with Students Experiencing Issues Surrounding Undocumented Status.

It restates the importance of a counselor to provide a safe and respectful environment for all students, regardless of immigration status and provides the background behind Plyler v. Doe (1982) and DACA. The statement discusses the barriers and stressors that undocumented students experience and provides specific actions that school counselors can do to advocate for undocumented students. The role of a school counselor is to understand the additional stressors and barriers that undocumented students face and help them overcome these to succeed as students.

References

American School Counselor Association. (2019). The School counselor and working with students experiencing issues surrounding undocumented status.  Alexandria, VA: Author. Retrieved from https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Working-with-Students-(1)

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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, 2016, 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. (2016). 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 fromhttps://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

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The School Counselor and Working with Students Experiencing Issues Surrounding Undocumented Status

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(Adopted 2017; revised 2019) 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.

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A sanctuary school commits to protect undocumented students and families from federal immigration enforcement in school spaces. This article shares the experience of San Leandro School District in California establishing themselves as a sanctuary school district.

Schools are listed as a sensitive locations (also includes hospitals and churches). In 2020, a man was picked up by Immigration at the hospital, provoking fear throughout the undocumented community.

Its hard for students to achieve a fair education if they are worried; many families will not send their kids to school for a fear of deportation.

Sanctuary schools provide a safe environment by refusing to share information and restricting school access to federal immigration officials. If a school becomes a sanctuary school, it must back up the proclamation with tangible actions such as training and community support.

Link : https://www.learningforjustice.org/magazine/fall-2020/school-as-sanctuary

Reference

Collins, C. (2020, Fall). School as sanctuary. Teaching Tolerance, 65, 25–31. https://www.learningforjustice.org/magazine/fall-2020/school-as-sanctuary

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In San Leandro, California, history haunts. The fog that rolls over the yachts and golf courses on the coast disappears into the same air that held the smoke and screams for justice from this summer's protests.

The suburb has a legacy of exclusion. After World War II, covenants kept property owners from selling space to people of color-especially Black people from nearby Oakland. San Leandro was built, in many ways, to keep people out.

Dr. Sonal Patel felt the weight of that history when she talked to Black families about their experiences with racism as they lived and worked in the surrounding communities. She felt that weight acutely after the September 11th attacks. A kindergarten teacher at the time, she listened as Sikh and Muslim families expressed to her that they felt unwelcome in the city.

"I'm not sure we want to live in the community," she remembers them telling her. "We're having a hard time walking to school." During this time, Patel says, many Sikh and Muslim families left the school community and left San Leandro altogether.

Back then, the district lacked concrete plans to address these families' concerns. Today, Patel serves as the assistant superintendent of educational services for the San Leandro Unified School District. She looks back on these experiences as teachable moments-and as turning points.

"We have made a really concerted effort to really outreach and ensure that our school district is conscious of the history and legacy of what's happened," she says, citing the long-unaddressed need for anti-racist policies and the consequences of not having proactive plans in place immediately following 9/11.

In 2016, when xenophobia once again threatened to unmoor entire communities, students from San Leandro High School's Social Justice Academy made a presentation to the school board. They didn't want history to repeat itself.

They wanted to be a sanctuary school-and a sanctuary district.

What Is a Sanctuary School?

Like sanctuary cities, sanctuary schools are not firmly rooted in a single, legal definition. Instead, the "sanctuary school" label broadly signals a commitment to protecting undocumented students and their families from federal immigration enforcement, especially in school spaces.

This is necessary, in part, because the barrier between Immigration and Customs Enforcement (ICE) officers and school campuses is razor-thin. The only thing keeping ICE from entering schools is an internal policy-ICE's "Sensitive Locations Memorandum" from 2011. The memo also lists churches, funeral homes and hospitals as sensitive locations where arrests won't be made.

But in Pennsylvania this past March, a man from Honduras was detained inside a hospital and taken into ICE custody. For many undocumented people, it was a terrifying reminder that the memo may not protect them, even in their most vulnerable moments. Someone seeking life-saving care could be separated from their family-so why not someone taking their child to school? Why not someone walking to homeroom?

"Everything that we've seen from this administration leads us to believe that we ought not be surprised about what they do," says Paul Chavez, the director of the Southern Poverty Law Center's immigrant justice work in Florida. He says it's important for schools and districts to draw a line in the sand with comprehensive sanctuary policies.

After all, public schools have a legal obligation to enroll undocumented students and remove barriers to equitable education. Sanctuary schools take this responsibility and add to it a recognition that equal access to education cannot happen in a space in which students from immigrant families feel unsafe.

According to Immigrants Rising, a nonprofit advocating for institutional and policy change, sanctuary schools uphold that promise of safety by, at the least, refusing to share student information with federal immigration authorities; restricting those authorities' access to campuses; keeping school officers from serving as resources to those authorities; and providing supports that serve undocumented students and students with undocumented family members.

These core qualities of sanctuary schools parallel a long history of local resistance.

A Call to Action

The modern U.S. sanctuary movement is most often traced back to the 1980s, when synagogues, churches, campuses and entire cities offered refuge to people fleeing civil war in El Salvador, Honduras and Guatemala-a rebuke of Reagan-era intervention in the region and immigration policies denying refugees "asylee" status.

The movement regained steam more than 20 years later. As refugees once again arrived in the United States from Central America in large numbers, the Obama administration drastically increased immigration enforcement, at one point surpassing 400,000 deportations in a single year.

Against a backdrop of mass deportation and raids by ICE, schools saw students traumatized and families afraid to send their kids to class. Districts in Albuquerque, Los Angeles and San Francisco passed sanctuary resolutions and policies in response.

Upon the election of President Trump-whose campaign rhetoric had included promises to close the southern border, increase ICE enforcement and ban immigration from Muslim-majority countries-those fears multiplied. By late 2016, calls to address them head-on had become urgent.

"Kids were not coming to school. There was a huge drop in November. And then you had kids coming to school crying," says Roseann Torres, a second-term member of the school board in Oakland Unified School District (OUSD).

At that time, OUSD already had a sanctuary policy in place. It had been instituted after a 2008 incident when an ICE officer allegedly escorted a student's mother to a school campus before detaining her. But threats of increased ICE enforcement resurfaced that community trauma, Torres says, and in the aftermath of Trump's election, "everybody went into panic mode."

It became clear that they needed to dust the old policy off and address its actionability. In December of 2016, with the support of fellow representative Shanthi Gonzalez, Torres introduced a new sanctuary resolution.

The resolution's language affirmed students' right to education and all school services regardless of immigration status. It also encouraged improved history curricula and engagement with current events, partnerships with community-based and legal aid organizations, policies that protected students and their personal data from ICE, and training for staff to see these promises through.

The resolution passed. It was among the first of a post-2016 wave across the United States.

The following month, President Trump issued executive orders attempting to mandate cooperation between local law enforcement and federal immigration authorities. In the 100 days after he signed those orders, more than 41,000 people were arrested for civil immigration offenses.

Students-and schools-immediately felt the devastating repercussions. In February 2017, a raid in Las Cruces, New Mexico, resulted in a 60 percent increase in student absences. Cities like Miami, Des Moines, Portland and Milwaukee created or revised sanctuary school resolutions to tighten protections for undocumented students and families.

California led the way. By September of 2017, 118 of the state's school districts had declared themselves "safe havens" or sanctuaries. Oakland was one of those districts. So was San Leandro.

In the aftermath of the 2016 election, as anti-Muslim and anti-immigrant rhetoric and executive orders descended from the highest office in the land, the San Leandro community had wanted to know where their schools stood-and if they'd be protected. Spurred by student activists and a proactive school board, Dr. Sonal Patel and others got to work.

"Schools by design aren't necessarily safe havens," Patel says. "You have to actually, actively make them so."

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In San Leandro, California, history haunts. The fog that rolls over the yachts and golf courses on the coast disappears into the same air that held the smoke and screams for justice from this summer's protests. The suburb has a legacy of exclusion.

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Slide #6 -Judicial Legal Source, Plyer v. Doe (1982)

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Slide #6 -Judicial Legal Source, Plyer v. Doe (1982)

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The U.S. Supreme Court ruled in Plyer v. Doe (1982) that states can not deny undocumented students a public K-12 education.

The decision, based on a case of undocumented immigrants versus the city of Tyler, struck down a Texas statute that denied state funds to school districts who allow for the education of students who were not “legally admitted” into the U.S.. The Supreme Court ruled that this statute violated the Equal Protection Clause of the Fourteenth Amendment. It stressed the importance of not punishing the children of immigrants who had no choice or control of their path by withholding educational opportunities.

Counselors will interact with undocumented students or students with undocumented family members and need to be aware of the issues faced by this population

Counselors should provide a safe environment for undocumented students to ask questions and resolve issues without fear.

Counselors can not ask a student about their immigration status or require documentation that would show it.

Link to full text: https://supreme.justia.com/cases/federal/us/457/202/#tab-opinion-1954579

References:

Court Plyler v. Doe, 457 U.S. 202 (1982). https://supreme.justia.com/cases/federal/us/457/202/#tab-opinion-1954579

Teach Democracy (2024) Education and the 14th Amendment https://teachdemocracy.org/online-lessons/bill-of-rights-in-action/bria-7-4-c#:~:text=While%20education%20may%20not%20be,denied%20equal%20access%20to%20schooling.

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Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. -230. (a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. -216. (b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State. Although undocumented resident aliens cannot be treated as a "suspect class," and although education is not a "fundamental right," so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents' conduct nor their own undocumented status. The deprivation Page 457 U. S. 203 of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement. In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children may properly be considered. Pp. -224. (c) The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents. It is true that, when faced with an equal protection challenge respecting a State's differential treatment of aliens, the courts must be attentive to congressional policy concerning aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy is perceived that might justify the State in denying these children an elementary education. Pp. -226. (d) Texas' statutory classification cannot be sustained as furthering its interest in the "preservation of the state's limited resources for the education of its lawful residents." While the State might have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, the Texas statute does not offer an effective method of dealing with the problem. Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State's boundaries and to put their education to productive social or political use within the State. Pp. -230. No. 80-1638, 628 F.2d 448, and No. 80-1934, affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J., post, p. , BLACKMUN, J., post, p. , and POWELL, J., post, p. , filed concurring opinions. BURGER, C.J., filed a dissenting opinion, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined, post, p. . Page 457 U. S. 205 JUSTICE BRENNAN delivered the opinion of the Court. The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens. I Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime, 8 U.S.C. § 1325, and those who have entered unlawfully are subject to deportation, 8 U.S.C. §§ 1251, 1252 (1976 ed. and Supp. IV). But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas. In May, 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not "legally admitted" into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not "legally admitted" to the country. Tex. Educ.Code Ann. § 21.031 (Vernon Supp.1981). [ Footnote 1] These cases involve constitutional challenges to those provisions. Page 457 U. S. 206 Plyler v. Doe This is a class action, filed in the United States District Court for the Eastern District of Texas in September, 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District. [ Footnote 2] The Superintendent and members of the Board of Trustees of the School District were named as defendants; the State of Texas intervened as a party-defendant. After certifying a class consisting of all undocumented school-age children of Mexican origin residing within the School District, the District Court preliminarily enjoined defendants from denying a free education to members of the plaintiff class. In December, 1977, the court conducted an extensive hearing on plaintiffs' motion for permanent injunctive relief. Page 457 U. S. 207 In considering this motion, the District Court made extensive findings of fact. The court found that neither § 21.031 nor the School District policy implementing it had "either the purpose or effect of keeping illegal aliens out of the State of Texas." 458 F. Supp. 569, 575 (1978). Respecting defendants' further claim that § 21.031 was simply a financial measure designed to avoid a drain on the State's fisc, the court recognized that the increases in population resulting from the immigration of Mexican nationals into the United States had created problems for the public schools of the State, and that these problems were exacerbated by the special educational needs of immigrant Mexican children. The court noted, however, that the increase in school enrollment was primarily attributable to the admission of children who were legal residents. Id. at 575-576. It also found that, while the "exclusion of all undocumented children from the public schools in Texas would eventually result in economies at some level," id. at 576, funding from both the State and Federal Governments was based primarily on the number of children enrolled. In net effect, then, barring undocumented children from the schools would save money, but it would "not necessarily" improve "the quality of education." Id. at 577. The court further observed that the impact of § 21.031 was borne primarily by a very small subclass of illegal aliens, "entire families who have migrated illegally and -- for all practical purposes -- permanently to the United States." Id. at 578. [ Footnote 3] Finally, the court noted that, under current laws and practices, "the illegal alien of today may well be the legal alien of tomorrow," [ Footnote 4] and that, without an education, these undocumented Page 457 U. S. 208 children, "[a]lready disadvantaged as a result of poverty, lack of English-speaking ability, and undeniable racial prejudices, . . . will become permanently locked into the lowest socio-economic class." Id. at 577. The District Court held that illegal aliens were entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment, and that § 21.031 violated that Clause. Suggesting that "the state's exclusion of undocumented children from its public schools . . . may well be the type of invidiously motivated state action for which the suspect classification doctrine was designed," the court held that it was unnecessary to decide whether the statute would survive a "strict scrutiny" analysis because, in any event, the discrimination embodied in the statute was not supported by a rational basis. Id. at 585. The District Court also concluded that the Texas statute violated the Supremacy Clause. [ Footnote 5] Id. at 590-592. The Court of Appeals for the Fifth Circuit upheld the District Court's injunction. 628 F.2d 448 (1980). The Court of Appeals held that the District Court had erred in finding the Texas statute preempted by federal law. [ Footnote 6] With respect to Page 457 U. S. 209 equal protection, however, the Court of Appeals affirmed in all essential respects the analysis of the District Court, id. at 454-458, concluding that § 21.031 was "constitutionally infirm regardless of whether it was tested using the mere rational basis standard or some more stringent test," id. at 458. We noted probable jurisdiction. 451 U.S. 968 (1981). No. 8194 I n re Alien Children Education Litigation During 1978 and 1979, suits challenging the constitutionality of 21.031 and various local practices undertaken on the authority of that provision were filed in the United States District Courts for the Southern, Western, and Northern Districts of Texas. Each suit named the State of Texas and the Texas Education Agency as defendants, along with local officials. In November, 1979, the Judicial Panel on Multidistrict Litigation, on motion of the State, consolidated the claims against the state officials into a single action to be heard in the District Court for the Southern District of Texas. A hearing was conducted in February and March, 1980. In July, 1980, the court entered an opinion and order holding that § 21.031 violated the Equal Protection Clause of the Fourteenth Amendment. In re Alien Children Education Litigation, 501 F. Supp. 544. [ Footnote 7] The court held that "the absolute deprivation of education should trigger strict judicial scrutiny, particularly when the absolute deprivation is the result of complete inability to pay for the desired benefit." Id. at 582. The court determined that the State's concern for fiscal integrity was not a compelling state interest, id. at 582-583; that exclusion of these children had not been shown to be necessary to improve education within the State, id. at 583; and that the educational needs of the children statutorily excluded were not different from the needs of children not excluded, ibid. The court therefore concluded that Page 457 U. S. 210 § 21.031 was not carefully tailored to advance the asserted state interest in an acceptable manner. Id. at 583-584. While appeal of the District Court's decision was pending, the Court of Appeals rendered its decision in No. 80-1538. Apparently on the strength of that opinion, the Court of Appeals, on February 23, 1981, summarily affirmed the decision of the Southern District. We noted probable jurisdiction, 452 U.S. 937 (1981), and consolidated this case with No. 80-1538 for briefing and argument. [ Footnote 8] II The Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not "persons within the jurisdiction" of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a "person" in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as "persons" guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessv v. Mezei, , (1953); Wong Wing v. United States, , (1896); Yick Wo v. Hopkins, , (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, , (1976). [ Footnote 9] Page 457 U. S. 211 Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction, while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants' view, persons who have entered the United States illegally are not "within the jurisdiction" of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment support that constricting construction of the phrase "within its jurisdiction." [ Footnote 10] We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized Page 457 U. S. 212 that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority. "The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says:" "Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." " These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the protection of the laws is a pledge of the protection of equal laws." Yick Wo, supra, at (emphasis added). In concluding that "all persons within the territory of the United States," including aliens unlawfully present, may invoke the Fifth and Sixth Amendments to challenge actions of the Federal Government, we reasoned from the understanding that the Fourteenth Amendment was designed to afford its protection to all within the boundaries of a State. Wong Wing, supra, at . [ Footnote 11] Our cases applying the Equal Protection Clause reflect the same territorial theme: [ Footnote 12] Page 457 U. S. 213 "Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities, each responsible for its own laws establishing the rights and duties of persons within its borders." Missouri ex rel. Gaines v. Canada, , (1938). There is simply no support for appellants' suggestion that "due process" is somehow of greater stature than "equal protection," and therefore available to a larger class of persons. To the contrary, each aspect of the Fourteenth Amendment reflects an elementary limitation on state power. To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. The Equal Protection Clause was intended to work nothing less than the abolition of all caste-based and invidious class-based legislation. That objective is fundamentally at odds with the power the State asserts here to classify persons subject to its laws as nonetheless excepted from its protection. Page 457 U. S. 214 Although the congressional debate concerning § 1 of the Fourteenth Amendment was limited, that debate clearly confirms the understanding that the phrase "within its jurisdiction" was intended in a broad sense to offer the guarantee of equal protection to all within a State's boundaries, and to all upon whom the State would impose the obligations of its laws. Indeed, it appears from those debates that Congress, by using the phrase "person within its jurisdiction," sought expressly to ensure that the equal protection of the laws was provided to the alien population. Representative Bingham reported to the House the draft resolution of the Joint Committee of Fifteen on Reconstruction (H.R. 63) that was to become the Fourteenth Amendment. [ Footnote 13] Cong.Globe, 39th Cong., 1st Sess., 1033 (1866). Two days later, Bingham posed the following question in support of the resolution: "Is it not essential to the unity of the people that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States? Is it not essential to the unity of the Government and the unity of the people that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property?" Id. at 1090. Senator Howard, also a member of the Joint Committee of Fifteen, and the floor manager of the Amendment in the Senate, was no less explicit about the broad objectives of the Amendment, and the intention to make its provisions applicable to all who "may happen to be" within the jurisdiction of a State: Page 457 U. S. 215 "The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction." Id. at 2766 (emphasis added). Use of the phrase "within its jurisdiction" thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish. Our conclusion that the illegal aliens who are plaintiffs in these cases may claim the benefit of the Fourteenth Amendment's guarantee of equal protection only begins the inquiry. The more difficult question is whether the Equal Protection Clause has been violated by the refusal of the State of Texas to reimburse local school boards for the education of children who cannot demonstrate that their presence within the Page 457 U. S. 216 United States is lawful, or by the imposition by those school boards of the burden of tuition on those children. It is to this question that we now turn. III The Equal Protection Clause directs that "all persons similarly circumstanced shall be treated alike." F. S. Royster Guano Co. v. Virginia, , (1920). But so too, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, , (1940). The initial discretion to determine what is "different" and what is "the same" resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose. But we would not be faithful to our obligations under the Fourteenth Amendment if we applied so deferential a standard to every classification. The Equal Protection Clause was intended as a restriction on state legislative action inconsistent with elemental constitutional premises. Thus, we have treated as presumptively invidious those classifications that disadvantage a "suspect class," [ Footnote 14] or that impinge upon Page 457 U. S. 217 the exercise of a "fundamental right." [ Footnote 15] With respect to such classifications, it is appropriate to enforce the mandate of equal protection by requiring the State to demonstrate that its classification has been precisely tailored to serve a compelling governmental interest. In addition, we have recognized that certain forms of legislative classification, while not facially invidious, nonetheless give rise to recurring constitutional difficulties; in these limited circumstances, we have sought the assurance that the classification reflects a reasoned judgment consistent with the ideal of equal protection by inquiring whether it may fairly be viewed as furthering a Page 457 U. S. 218 substantial interest of the State. [ Footnote 16] We turn to a consideration of the standard appropriate for the evaluation of § 21.031. A Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial "shadow population" of illegal migrants -- numbering in the millions -- within our borders. [ Footnote 17] This situation raises the specter of a permanent Page 457 U. S. 219 caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. [ Footnote 18] The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law. [ Footnote 19] The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply Page 457 U. S. 220 with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their "parents have the ability to conform their conduct to societal norms," and presumably the ability to remove themselves from the State's jurisdiction; but the children who are plaintiffs in these cases "can affect neither their parents' conduct nor their own status." Trimble v. Gordon, , (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice. "[V]isiting . . . condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the . . . child is an ineffectual -- as well as unjust -- way of deterring the parent." Weber v. Aetna Casualty & Surety Co., , (1972) (footnote omitted). Of course, undocumented status is not irrelevant to any proper legislative goal. Nor is undocumented status an absolutely immutable characteristic, since it is the product of conscious, indeed unlawful, action. But § 21.031 is directed against children, and imposes its discriminatory burden on the basis of a legal characteristic over which children can have little control. It is thus difficult to conceive of a rational justification for penalizing these children for their presence within the United States. Yet that appears to be precisely the effect of § 21.031. Page 457 U. S. 221 Public education is not a "right" granted to individuals by the Constitution. San Antonio Independent School Dist. v. Rodriguez, , (1973). But neither is it merely some governmental "benefit" indistinguishable from other forms of social welfare legislation. Both the importance of education in maintaining our basic institutions and the lasting impact of its deprivation on the life of the child mark the distinction. The "American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance." Meyer v. Nebraska, , (1923). We have recognized "the public schools as a most vital civic institution for the preservation of a democratic system of government," Abington School District v. Schempp, , (1963) (BRENNAN, J., concurring), and as the primary vehicle for transmitting "the values on which our society rests." Ambach v. Norwick, , (1979). "[A]s . . . pointed out early in our history, . . . some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence." Wisconsin v. Yoder, , (1972). And these historic "perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists." Ambach v. Norwick, supra, at . In addition, education provides the basic tools by which individuals might lead economically productive lives to the benefit of us all. In sum, 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. In addition to the pivotal role of education in sustaining our political and cultural heritage, denial of education to some isolated group of children poses an affront to one of the goals Page 457 U. S. 222 of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit. Paradoxically, by depriving the children of any disfavored group of an education, we foreclose the means by which that group might raise the level of esteem in which it is held by the majority. But more directly, "education prepares individuals to be self-reliant and self-sufficient participants in society." Wisconsin v. Yoder, supra, at . Illiteracy is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life. The inestimable toll of that deprivation on the social, economic, intellectual, and psychological wellbeing of the individual, and the obstacle it poses to individual achievement, make it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause. [ Footnote 20] What we said 28 years ago in Brown v. Board of Education, (1954), still holds true: "Today, education is perhaps the most important function of state and local governments. Compulsory school Page 457 U. S. 223 attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Id. at . B These well-settled principles allow us to determine the proper level of deference to be afforded § 21.031. Undocumented aliens cannot be treated as a suspect class, because their presence in this country in violation of federal law is not a "constitutional irrelevancy." Nor is education a fundamental right; a State need not justify by compelling necessity every variation in the manner in which education is provided to its population. See San Antonio Independent School Dist. v. Rodriguez, supra, at -39. But more is involved in these cases than the abstract question whether § 21.031 discriminates against a suspect class, or whether education is a fundamental right. Section 21.031 imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation. In determining Page 457 U. S. 224 the rationality of § 21. 031, we may appropriately take into account its costs to the Nation and to the innocent children who are its victims. In light of these countervailing costs, the discrimination contained in § 21.031 can hardly be considered rational unless it furthers some substantial goal of the State. IV It is the State's principal argument, and apparently the view of the dissenting Justices, that the undocumented status of these children vel non establishes a sufficient rational basis for denying them benefits that a State might choose to afford other residents. The State notes that, while other aliens are admitted "on an equality of legal privileges with all citizens under nondiscriminatory laws," Takahashi v. Fish & Game Comm'n, , (1948), the asserted right of these children to an education can claim no implicit congressional imprimatur. [ Footnote 21] Indeed, in the State's view, Congress' apparent disapproval of the presence of these children within the United States, and the evasion of the federal regulatory program that is the mark of undocumented status, provides authority for its decision to impose upon them special disabilities. Faced with an equal protection challenge respecting the treatment of aliens, we agree that the courts must be attentive to congressional policy; the exercise of congressional power might well affect the State's prerogatives to afford differential treatment to a particular class of aliens. But we are unable to find in the congressional immigration scheme any statement of policy that might weigh significantly Page 457 U. S. 225 in arriving at an equal protection balance concerning the State's authority to deprive these children of an education. The Constitution grants Congress the power to "establish an uniform Rule of Naturalization." Art. I., § 8, cl. 4. Drawing upon this power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders. See Mathews v. Diaz, (1976); Harisiades v. Shaughnessy, , -589 (1952). The obvious need for delicate policy judgments has counseled the Judicial Branch to avoid intrusion into this field. Mathews, supra, at . But this traditional caution does not persuade us that unusual deference must be shown the classification embodied in § 21.031. The States enjoy no power with respect to the classification of aliens. See Hines v. Davidowitz, (1941). This power is "committed to the political branches of the Federal Government." Mathews, 426 U.S. at . Although it is "a routine and normally legitimate part" of the business of the Federal Government to classify on the basis of alien status, id. at , and to "take into account the character of the relationship between the alien and this country," id. at , only rarely are such matters relevant to legislation by a State. See Id. at -85; Nyquist v. Mauclet, , , n. 8 (1977) As we recognized in De Canas v. Bica, (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State's program reflected Congress' intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id. at . In contrast, there is no indication that the disability imposed by § 21.031 corresponds to any identifiable congressional policy. The Page 457 U. S. 226 State does not claim that the conservation of state educational resources was ever a congressional concern in restricting immigration. More importantly, the classification reflected in § 21.031 does not operate harmoniously within the federal program. To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. 8 U.S.C. §§ 1251, 1252 (1976 ed. and Supp. IV). But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp. IV). In light of the discretionary federal power to grant relief from deportation, a State cannot realistically determine that any particular undocumented child will in fact be deported until after deportation proceedings have been completed. It would, of course, be most difficult for the State to justify a denial of education to a child enjoying an inchoate federal permission to remain. We are reluctant to impute to Congress the intention to withhold from these children, for so long as they are present in this country through no fault of their own, access to a basic education. In other contexts, undocumented status, coupled with some articulable federal policy, might enhance state authority with respect to the treatment of undocumented aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the present legislative record, we perceive no national policy that supports the State in denying these children an elementary education. The State may borrow the federal classification. But to justify its use as a criterion for its own discriminatory policy, the State must demonstrate that the classification is reasonably adapted to " the purposes for which the state desires to use it." Oyama v. California, , -665 (1948) (Murphy, J., concurring) (emphasis added). We therefore turn to the state objectives that are said to support § 21.031. Page 457 U. S. 227 V Appellants argue that the classification at issue furthers an interest in the "preservation of the state's limited resources for the education of its lawful residents." [ Footnote 22] Brief for Appellants 26. Of course, a concern for the preservation of resources, standing alone, can hardly justify the classification used in allocating those resources. Graham v. Richardson, , -375 (1971). The State must do more than justify its classification with a concise expression of an intention to discriminate. Examining Board v. Flores de Otero, , (1976). Apart from the asserted state prerogative to act against undocumented children solely on the basis of their undocumented status -- an asserted prerogative that carries only minimal force in the circumstances of these cases -- we discern three colorable state interests that might support § 21.031. Page 457 U. S. 228 First, appellants appear to suggest that the State may seek to protect itself from an influx of illegal immigrants. While a State might have an interest in mitigating the potentially harsh economic effects of sudden shifts in population, [ Footnote 23] § 21.031 hardly offers an effective method of dealing with an urgent demographic or economic problem. There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State's economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc. 458 F. Supp. at 578; 501 F. Supp. at 570-571. The dominant incentive for illegal entry into the State of Texas is the availability of employment; few if any illegal immigrants come to this country, or presumably to the State of Texas, in order to avail themselves of a free education. [ Footnote 24] Thus, even making the doubtful assumption that the net impact of illegal aliens on the economy of the State is negative, we think it clear that "[c]harging tuition to undocumented children constitutes a ludicrously ineffectual attempt to stem the tide of illegal immigration," at least when compared with the alternative of Page 457 U. S. 229 prohibiting the employment of illegal aliens. 458 F. Supp. at 585. See 628 F.2d at 461; 501 F. Supp. at 579, and n. 88. Second, while it is apparent that a State may "not . . . reduce expenditures for education by barring [some arbitrarily chosen class of] children from its schools," Shapiro v. Thompson, , (1969), appellants suggest that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. But the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State. [ Footnote 25] As the District Court in No. 801934 noted, the State failed to offer any "credible supporting evidence that a proportionately small diminution of the funds spent on each child [which might result from devoting some state funds to the education of the excluded group] will have a grave impact on the quality of education." 501 F. Supp. at 583. And, after reviewing the State's school financing mechanism, the District Court in No. 80-1538 concluded that barring undocumented children from local schools would not necessarily improve the quality of education provided in those schools. 458 F. Supp. at 577. Of course, even if improvement in the quality of education were a likely result of barring some number of children from the schools of the State, the State must support its selection of this group as the appropriate target for exclusion. In terms of educational cost and need, however, undocumented children are "basically indistinguishable" from legally resident alien children. Id. at 589; 501 F. Supp. at 583, and n. 104. Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence Page 457 U. S. 230 within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State's borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation. VI If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is Affirmed. * Together with No. 80-1934, Texas et al. v. Certain Named and Unnamed Undocumented Alien Children et al., also on appeal from the same court. [ Footnote 1] That section provides, in pertinent part: "(a) All children who are citizens of the United States or legally admitted aliens and who are over the age of five years and under the age of 21 years on the first day of September of any scholastic year shall be entitled to the benefits of the Available School Fund for that year." "(b) Every child in this state who is a citizen of the United States or a legally admitted alien and who is over the age of five years and not over the age of 21 years on the first day of September of the year in which admission is sought shall be permitted to attend the public free schools of the district in which he resides or in which his parent, guardian, or the person having lawful control of him resides at the time he applies for admission." "(c) The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district." [ Footnote 2] Despite the enactment of § 21.031 in 1975, the School District had continued to enroll undocumented children free of charge until the 1977-1978 school year. In July, 1977, it adopted a policy requiring undocumented children to pay a "full tuition fee" in order to enroll. Section 21.031 had not provided a definition of "a legally admitted alien." Tyler offered the following clarification: "A legally admitted alien is one who has documentation that he or she is legally in the United States, or a person who is in the process of securing documentation from the United States Immigration Service, and the Service will state that the person is being processed and will be admitted with proper documentation." App. to Juris.Statement in No. 80-1538, p. A-38. [ Footnote 3] The court contrasted this group with those illegal aliens who entered the country alone in order to earn money to send to their dependents in Mexico, and who, in many instances, remained in this country for only a short period of time. 458 F. Supp. at 578. [ Footnote 4] Plaintiffs' expert, Dr. Gilbert Cardenas, testified that "fifty to sixty per cent . . . of current legal alien workers were formerly illegal aliens." Id. at 577. A defense witness, Rolan Heston, District Director of the Houston District of the Immigration and Naturalization Service, testified that "undocumented children can and do live in the United States for years, and adjust their status through marriage to a citizen or permanent resident." Ibid. The court also took notice of congressional proposals to "legalize" the status of many unlawful entrants. Id. at 577-578. See also n 17, infra. [ Footnote 5] The court found § 21.031 inconsistent with the scheme of national regulation under the Immigration and Nationality Act, and with federal laws pertaining to funding and discrimination in education. The court distinguished De Canas v. Bica, (1976), by emphasizing that the state bar on employment of illegal aliens involved in that case mirrored precisely the federal policy, of protecting the domestic labor market, underlying the immigration laws. The court discerned no express federal policy to bar illegal immigrants from education. 458 F. Supp. at 590-592. [ Footnote 6] The Court of Appeals noted that De Canas v. Bica, supra, had not foreclosed all state regulation with respect to illegal aliens, and found no express or implied congressional policy favoring the education of illegal aliens. The court therefore concluded that there was no preemptive conflict between state and federal law. 628 F.2d at 451-454. [ Footnote 7] The court concluded that § 21.031 was not preempted by federal laws or international agreements. 501 F. Supp. at 584-596. [ Footnote 8] Appellees in both cases continue to press the argument that § 21.031 is preempted by federal law and policy. In light of our disposition of the Fourteenth Amendment issue, we have no occasion to reach this claim. [ Footnote 9] It would be incongruous to hold that the United States, to which the Constitution assigns a broad authority over both naturalization and foreign affairs, is barred from invidious discrimination with respect to unlawful aliens, while exempting the States from a similar limitation. See 426 U.S. at -86. [ Footnote 10] Although we have not previously focused on the intended meaning of this phrase, we have had occasion to examine the first sentence of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . ." (Emphasis added.) Justice Gray, writing for the Court in United States v. Wong Kim Ark, (1898), detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term "jurisdiction" was used. He further noted that it was "impossible to construe the words 'subject to the jurisdiction thereof,' in the opening sentence [of the Fourteenth Amendment], as less comprehensive than the words 'within its jurisdiction,' in the concluding sentence of the same section; or to hold that persons 'within the jurisdiction' of one of the States of the Union are not 'subject to the jurisdiction of the United States.'" Id. at . Justice Gray concluded that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." Id. at . As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful. See C. Bouve, Exclusion and Expulsion of Aliens in the United States 425-427 (1912). [ Footnote 11] In his separate opinion, Justice Field addressed the relationship between the Fifth and Fourteenth Amendments: "The term 'person,' used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. A resident, alien born, is entitled to the same protection under the laws that a citizen is entitled to. He owes obedience to the laws of the country in which he is domiciled, and, as a consequence, he is entitled to the equal protection of those laws. . . . The contention that persons within the territorial jurisdiction of this republic might be beyond the protection of the law was heard with pain on the argument at the bar -- in face of the great constitutional amendment which declares that no State shall deny to any person within its jurisdiction the equal protection of the laws." Wong Wing v. United States, 163 U.S. at -243 (concurring in part and dissenting in part). [ Footnote 12] Leng May Ma v. Barber, (1958), relied on by appellants, is not to the contrary. In that case, the Court held, as a matter of statutory construction, that an alien paroled into the United States pursuant to 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. 1182(d)(5) (1952 ed.), was not "within the United States" for the purpose of availing herself of § 243(h), which authorized the withholding of deportation in certain circumstance. The conclusion reflected the longstanding distinction between exclusion proceedings, involving the determination of admissibility, and deportation proceedings. The undocumented children who are appellees here, unlike the parolee in Leng May Ma, supra, could apparently be removed from the country only pursuant to deportation proceedings. 8 U.S.C. § 1251(a)(2). See 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 3.16b, p. 3-161 (1981). [ Footnote 13] Representative Bingham's views are also reflected in his comments on the Civil Rights Bill of 1866. He repeatedly referred to the need to provide protection, not only to the freedmen, but to "the alien and stranger," and to "refugees . . . and all men." Cong.Globe, 39th Cong., 1st Sess., 1292 (1866). [ Footnote 14] Several formulations might explain our treatment of certain classifications as "suspect." Some classifications are more likely than others to reflect deep-seated prejudice, rather than legislative rationality in pursuit of some legitimate objective. Legislation predicated on such prejudice is easily recognized as incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law. Classifications treated as suspect tend to be irrelevant to any proper legislative goal. See McLaughlin v. Florida, , (1964); Hirabayashi v. United States, , (1943). Finally, certain groups, indeed largely the same groups, have historically been "relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." San Antonio Independent School Dist. v. Rodriguez, , (1973); Graham v. Richardson, , (1971); see United States v. Carolene Products Co., , -153, n. 4 (1938). The experience of our Nation has shown that prejudice may manifest itself in the treatment of some groups. Our response to that experience is reflected in the Equal Protection Clause of the Fourteenth Amendment. Legislation imposing special disabilities upon groups disfavored by virtue of circumstances beyond their control suggests the kind of "class or caste" treatment that the Fourteenth Amendment was designed to abolish. [ Footnote 15] In determining whether a class-based denial of a particular right is deserving of strict scrutiny under the Equal Protection Clause, we look to the Constitution to see if the right infringed has its source, explicitly or implicitly, therein. But we have also recognized the fundamentality of participation in state "elections on an equal basis with other citizens in the jurisdiction," Dunn v. Blumstein, , (1972), even though "the right to vote, per se, is not a constitutionally protected right." San Antonio Independent School Dist., supra, at , n. 78. With respect to suffrage, we have explained the need for strict scrutiny as arising from the significance of the franchise as the guardian of all other rights. See Harper v. Virginia Bd. of Elections, , (1966); Reynolds v. Sims, , (1964); Yick Wo v. Hopkins, , (1886). [ Footnote 16] See Craig v. Boren, (1976); Lalli v. Lalli, (1978). This technique of "intermediate" scrutiny permits us to evaluate the rationality of the legislative judgment with reference to well-settled constitutional principles. "In expounding the Constitution, the Court's role is to discern 'principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place.'" University of California Regents v. Bakke, , (1978) (opinion of POWELL, J.), quoting A. Cox, The Role of the Supreme Court in American Government 114 (1976). Only when concerns sufficiently absolute and enduring can be clearly ascertained from the Constitution and our cases do we employ this standard to aid us in determining the rationality of the legislative choice. [ Footnote 17] The Attorney General recently estimated the number of illegal aliens within the United States at between 3 and 6 million. In presenting to both the Senate and House of Representatives several Presidential proposals for reform of the immigration laws -- including one to "legalize" many of the illegal entrants currently residing in the United States by creating for them a special status under the immigration laws -- the Attorney General noted that this subclass is largely composed of persons with a permanent attachment to the Nation, and that they are unlikely to be displaced from our territory: "We have neither the resources, the capability, nor the motivation to uproot and deport millions of illegal aliens, many of whom have become, in effect, members of the community. By granting limited legal status to the productive and law-abiding members of this shadow population, we will recognize reality and devote our enforcement resources to deterring future illegal arrivals." Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 9 (1981) (testimony of William French Smith, Attorney General). [ Footnote 18] As the District Court observed in No. 80-1538, the confluence of Government policies has resulted in "the existence of a large number of employed illegal aliens, such as the parents of plaintiffs in this case, whose presence is tolerated, whose employment is perhaps even welcomed, but who are virtually defenseless against any abuse, exploitation, or callous neglect to which the state or the state's natural citizens and business organizations may wish to subject them." 458 F. Supp. at 585. [ Footnote 19] We reject the claim that "illegal aliens" are a "suspect class." No case in which we have attempted to define a suspect class, see, e.g., n. 14, supra, has addressed the status of persons unlawfully in our country. Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it could hardly be suggested that undocumented status is a "constitutional irrelevancy." With respect to the actions of the Federal Government, alienage classifications may be intimately related to the conduct of foreign policy, to the federal prerogative to control access to the United States, and to the plenary federal power to determine who has sufficiently manifested his allegiance to become a citizen of the Nation. No State may independently exercise a like power. But if the Federal Government has, by uniform rule, prescribed what it believes to be appropriate standards for the treatment of an alien subclass, the States may, of course, follow the federal direction. See De Canas v. Bica, (1976). [ Footnote 20] Because the State does not afford noncitizens the right to vote, and may bar noncitizens from participating in activities at the heart of its political community, appellants argue that denial of a basic education to these children is of less significance than the denial to some other group. Whatever the current status of these children, the courts below concluded that many will remain here permanently, and that some indeterminate number will eventually become citizens. The fact that many will not is not decisive, even with respect to the importance of education to participation in core political institutions. "[T]he benefits of education are not reserved to those whose productive utilization of them is a certainty. . . ." 458 F. Supp. at 581, n. 14. In addition, although a noncitizen "may be barred from full involvement in the political arena, he may play a role -- perhaps even a leadership role -- in other areas of import to the community." Nyquist v. Mauclet, , (1977). Moreover, the significance of education to our society is not limited to its political and cultural fruits. The public schools are an important socializing institution, imparting those shared values through which social order and stability are maintained. [ Footnote 21] If the constitutional guarantee of equal protection was available only to those upon whom Congress affirmatively granted its benefit, the State's argument would be virtually unanswerable. But the Equal Protection Clause operates of its own force to protect anyone "within [the State's] jurisdiction" from the State's arbitrary action. See supra. The question we examine in text is whether the federal disapproval of the presence of these children assists the State in overcoming the presumption that denial of education to innocent children is not a rational response to legitimate state concerns. [ Footnote 22] Appellant School District sought at oral argument to characterize the alienage classification contained in § 21.031 as simply a test of residence. We are unable to uphold § 21.031 on that basis. Appellants conceded that, if, for example, a Virginian or a legally admitted Mexican citizen entered Tyler with his school-age children, intending to remain only six months, those children would be viewed as residents entitled to attend Tyler schools. Tr. of Oral Arg. 31-32. It is thus clear that Tyler's residence argument amounts to nothing more than the assertion that illegal entry, without more, prevents a person from becoming a resident for purposes of enrolling his children in the public schools. A State may not, however, accomplish what would otherwise be prohibited by the Equal Protection Clause merely by defining a disfavored group as nonresident. And illegal entry into the country would not, under traditional criteria, bar a person from obtaining domicile within a State. C. Bouve, Exclusion and Expulsion of Aliens in the United States 340 (1912). Appellants have not shown that the families of undocumented children do not comply with the established standards by which the State historically tests residence. Apart from the alienage limitation, § 21.031(b) requires a school district to provide education only to resident children. The school districts of the State are as free to apply to undocumented children established criteria for determining residence as they are to apply those criteria to any other child who seeks admission. [ Footnote 23] Although the State has no direct interest in controlling entry into this country, that interest being one reserved by the Constitution to the Federal Government, unchecked unlawful migration might impair the State's economy generally, or the State's ability to provide some important service. Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. See De Canas v. Bica, 424 U.S. at -356. [ Footnote 24] The courts below noted the ineffectiveness of the Texas provision as a means of controlling the influx of illegal entrants into the State. See 628 F.2d at 460-461; 458 F. Supp. at 585; 501 F. Supp. at 578 ("The evidence demonstrates that undocumented persons do not immigrate in search for a free public education. Virtually all of the undocumented persons who come into this country seek employment opportunities, and not educational benefits. . . . There was overwhelming evidence . . . of the unimportance of public education as a stimulus for immigration") (footnote omitted). [ Footnote 25] Nor does the record support the claim that the educational resources of the State are so direly limited that some form of "educational triage" might be deemed a reasonable (assuming that it were a permissible) response to the State's problems. Id. at 579-581. JUSTICE MARSHALL, concurring. While I join the Court opinion, I do so without in any way retreating from my opinion in San Antonio Independent School District v. Rodriguez, , -133 (1973) (dissenting opinion). I continue to believe that an individual's interest in education is fundamental, and that this view is amply supported "by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values. " Page 457 U. S. 231 Id. at . Furthermore, I believe that the facts of these cases demonstrate the wisdom of rejecting a rigidified approach to equal protection analysis, and of employing an approach that allows for varying levels of scrutiny depending upon "the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn." Id. at . See also Dandridge v. Williams, , -521 (1970) (MARSHALL, J., dissenting). It continues to be my view that a class-based denial of public education is utterly incompatible with the Equal Protection Clause of the Fourteenth Amendment. JUSTICE BLACKMUN, concurring. I join the opinion and judgment of the Court. Like JUSTICE POWELL, I believe that the children involved in this litigation "should not be left on the streets uneducated." Post at . I write separately, however, because, in my view, the nature of the interest at stake is crucial to the proper resolution of these cases. The "fundamental rights" aspect of the Court's equal protection analysis -- the now-familiar concept that governmental classifications bearing on certain interests must be closely scrutinized -- has been the subject of some controversy. Justice Harlan, for example, warned that "[v]irtually every state statute affects important rights. . . . [T]o extend the 'compelling interest' rule to all cases in which such rights are affected would go far toward making this Court a 'superlegislature.'" Shapiro v. Thompson, , (1969) (dissenting opinion). Others have noted that strict scrutiny under the Equal Protection Clause is unnecessary when classifications infringing enumerated constitutional rights are involved, for "a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications." Page 457 U. S. 232 Independent School Dist. v. Rodriguez, , (1973) (Stewart, J., concurring). See Shapiro v. Thompson, 394 U.S. at (Harlan, J., dissenting). Still others have suggested that fundamental rights are not properly a part of equal protection analysis at all, because they are unrelated to any defined principle of equality. [ Footnote 2/1] These considerations, combined with doubts about the judiciary's ability to make fine distinctions in assessing the effects of complex social policies, led the Court in Rodriguez to articulate a firm rule: fundamental rights are those that "explicitly or implicitly [are] guaranteed by the Constitution." 411 U.S. at -34. It therefore squarely rejected the notion that "an ad hoc determination as to the social or economic importance" of a given interest is relevant to the level of scrutiny accorded classifications involving that interest, id. at , and made clear that "[i]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." Id. at . I joined JUSTICE POWELL's opinion for the Court in Rodriguez, and I continue to believe that it provides the appropriate model for resolving most equal protection disputes. Classifications infringing substantive constitutional rights necessarily will be invalid, if not by force of the Equal Protection Clause, then through operation of other provisions of the Constitution. Conversely, classifications bearing on nonconstitutional interests -- even those involving "the most basic economic needs of impoverished human beings," Dandridge v. Williams, , (1970) -- generally are not subject to special treatment under the Equal Protection Clause, because they are not distinguishable in any relevant way from other regulations in "the area of economics and social welfare." Ibid. With all this said, however, I believe the Court's experience has demonstrated that the Rodriguez formulation does Page 457 U. S. 233 not settle every issue of "fundamental rights" arising under the Equal Protection Clause. Only a pedant would insist that there are no meaningful distinctions among the multitude of social and political interests regulated by the States, and Rodriguez does not stand for quite so absolute a proposition. To the contrary, Rodriguez implicitly acknowledged that certain interests, though not constitutionally guaranteed, must be accorded a special place in equal protection analysis. Thus, the Court's decisions long have accorded strict scrutiny to classifications bearing on the right to vote in state elections, and Rodriguez confirmed the "constitutional underpinnings of the right to equal treatment in the voting process." 411 U.S. at , n. 74. Yet "the right to vote, per se, is not a constitutionally protected right," id. at , n. 78. See Harper v. Virginia Board of Elections, , (1966); Rodriguez, 411 U.S. at , n. 2 (Stewart, J., concurring). Instead, regulation of the electoral process receives unusual scrutiny because "the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights." Reynolds v. Sims, , (1964). See Dunn v. Blumstein, , (1972). In other words, the right to vote is accorded extraordinary treatment because it is, in equal protection terms, an extraordinary right: a citizen [ Footnote 2/2] cannot hope to achieve any meaningful degree of individual political equality if granted an inferior right of participation in the political process. Those denied the vote are relegated, by state fiat, in a most basic way to second-class status. It is arguable, of course, that the Court never should have applied fundamental rights doctrine in the fashion outlined above. Justice Harlan, for one, maintained that strict equal protection scrutiny was appropriate only when racial or analogous Page 457 U. S. 234 classifications were at issue. Shapiro v. Thompson, 394 U.S. at -663 (dissenting opinion). See Reynolds v. Sims, 377 U.S. at 377 U.S. 590-591 (Harlan, J., dissenting). But it is too late to debate that point, and I believe that accepting the principle of the voting cases -- the idea that state classifications bearing on certain interests pose the risk of allocating rights in a fashion inherently contrary to any notion of "equality" -- dictates the outcome here. As both JUSTICE POWELL and THE CHIEF JUSTICE observe, the Texas scheme inevitably will create "a subclass of illiterate persons," post at (POWELL, J., concurring); see post at , (BURGER, C.J., dissenting); where I differ with THE CHIEF JUSTICE is in my conclusion that this makes the statutory scheme unconstitutional, as well as unwise. In my view, when the State provides an education to some and denies it to others, it immediately and inevitably creates class distinctions of a type fundamentally inconsistent with those purposes, mentioned above, of the Equal Protection Clause. Children denied an education are placed at a permanent and insurmountable competitive disadvantage, for an uneducated child is denied even the opportunity to achieve. And when those children are members of an identifiable group, that group -- through the State's action -- will have been converted into a discrete underclass. Other benefits provided by the State, such as housing and public assistance, are, of course, important; to an individual in immediate need, they may be more desirable than the right to be educated. But classifications involving the complete denial of education are, in a sense, unique, for they strike at the heart of equal protection values by involving the State in the creation of permanent class distinctions. Cf. Rodriguez, 411 U.S. at , n. 74 (MARSHALL, J., dissenting). In a sense, then, denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage. Page 457 U. S. 235 This conclusion is fully consistent with Rodriguez. The Court there reserved judgment on the constitutionality of a state system that "occasioned an absolute denial of educational opportunities to any of its children," noting that "no charge fairly could be made that the system [at issue in Rodriguez] fails to provide each child with an opportunity to acquire . . . basic minimal skills." Id. at . And it cautioned that, in a case "involv[ing] the most persistent and difficult questions of educational policy, . . . [the] Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels." Id. at . Thus Rodriguez held, and the Court now reaffirms, that "a State need not justify by compelling necessity every variation in the manner in which education is provided to its population." Ante at . Similarly, it is undeniable that education is not a "fundamental right" in the sense that it is constitutionally guaranteed. Here, however, the State has undertaken to provide an education to most of the children residing within its borders. And, in contrast to the situation in Rodriguez, it does not take an advanced degree to predict the effects of a complete denial of education upon those children targeted by the State's classification. In such circumstances, the voting decisions suggest that the State must offer something more than a rational basis for its classification. [ Footnote 2/3] Concededly, it would seem ironic to discuss the social necessity of an education in a case that concerned only undocumented aliens "whose very presence in the state and this country is illegal." Post at (BURGER, C.J., dissenting). But because of the nature of the federal immigration laws and the preeminent role of the Federal Government in Page 457 U. S. 236 regulating immigration, the class of children here is not a monolithic one. Thus, the District Court in the Alien Children Education case found as a factual matter that a significant number of illegal aliens will remain in this country permanently, 501 F. Supp. 544, 558-559 (SD Tex.1980); that some of the children involved in this litigation are "documentable," id. at 573; and that "[m]any of the undocumented children are not deportable. None of the named plaintiffs is under an order of deportation." Id. at 583, n. 103. As the Court's alienage cases demonstrate, these children may not be denied rights that are granted to citizens, excepting only those rights bearing on political interests. See Nyquist v. Mauclet, (1977). And, as JUSTICE POWELL notes, the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported. Post at -241, n. 6. Indeed, any attempt to do so would involve the State in the administration of the immigration laws. Whatever the State's power to classify deportable aliens, then -- and whatever the Federal Government's ability to draw more precise and more acceptable alienage classifications -- the statute at issue here sweeps within it a substantial number of children who will in fact, and who may well be entitled to, remain in the United States. Given the extraordinary nature of the interest involved, this makes the classification here fatally imprecise. And, as the Court demonstrates, the Texas legislation is not otherwise supported by any substantial interests. Because I believe that the Court's carefully worded analysis recognizes the importance of the equal protection and preemption interests I consider crucial, I join its opinion as well as its judgment. [ Footnote 2/1] See, e.g., Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum.L.Rev. 1023, 1075-1083 (1979). [ Footnote 2/2] I use the term "citizen" advisedly. The right to vote, of course, is a political interest of concern to citizens. The right to an education, in contrast, is a social benefit of relevance to a substantial number of those affected by Texas' statutory scheme, as is discussed below. [ Footnote 2/3] The Court concludes that the provision at issue must be invalidated "unless it furthers some substantial goal of the State." Ante at . Since the statute fails to survive this level of scrutiny, as the Court demonstrates, there is no need to determine whether a more probing level of review would be appropriate. JUSTICE POWELL, concurring. I join the opinion of the Court, and write separately to emphasize the unique character of the cases before us. Page 457 U. S. 237 The classification in question severely disadvantages children who are the victims of a combination of circumstances. Access from Mexico into this country, across our 2,000-mile border, is readily available and virtually uncontrollable. Illegal aliens are attracted by our employment opportunities, and perhaps by other benefits as well. This is a problem of serious national proportions, as the Attorney General recently has recognized. See ante at -219, n. 17. Perhaps because of the intractability of the problem, Congress -- vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens -- has not provided effective leadership in dealing with this problem. [ Footnote 3/1] It therefore is certain that illegal aliens will continue Page 457 U. S. 238 to enter the United States and, as the record makes clear, an unknown percentage of them will remain here. I agree with the Court that their children should not be left on the streets uneducated. Although the analogy is not perfect, our holding today does find support in decisions of this Court with respect to the status of illegitimates. In Weber v. Aetna Casualty & Surety Co., , (1972), we said: "[V]isiting . . . condemnation on the head of an infant" for the misdeeds of the parents is illogical, unjust, and "contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing." In these cases, the State of Texas effectively denies to the school-age children of illegal aliens the opportunity to attend the free public schools that the State makes available to all residents. They are excluded only because of a status resulting from the violation by parents or guardians of our immigration laws and the fact that they remain in our country unlawfully. The appellee children are innocent in this respect. They can "affect neither their parents' conduct nor their own status." Trimble v. Gordon, , (1977) Our review in a case such as these is properly heightened. [ Footnote 3/2] See id. at . Cf. Craig v. Boren, (1976). The classification at issue deprives a group of children of the opportunity for education afforded all other children simply because they have been assigned a legal status due to a violation of law by their parents. These children thus have been Page 457 U. S. 239 singled out for a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment. In these unique circumstances, the Court properly may require that the State's interests be substantial and that the means bear a "fair and substantial relation" to these interests. [ Footnote 3/3] See Lalli v. Lalli, , (1978) ("classifications based on illegitimacy . . . are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests"); id. at ("[a]s the State's interests are substantial, we now consider the means adopted"). In my view, the State's denial of education to these children bears no substantial relation to any substantial state interest. Both of the District Courts found that an uncertain but significant percentage of illegal alien children will remain in Texas as residents, and many eventually will become citizens. The discussion by the Court, ante at of the State's purported interests demonstrates that they are poorly served by the educational exclusion. Indeed, the interests relied upon by the State would seem to be insubstantial in view of the consequences to the State itself of wholly uneducated persons living indefinitely within its borders. By contrast, access to the public schools is made available to the children of lawful residents without regard to the temporary Page 457 U. S. 240 nature of their residency in the particular Texas school district. [ Footnote 3/4] The Court of Appeals and the District Courts that addressed these cases concluded that the classification could not satisfy even the bare requirements of rationality. One need not go so far to conclude that the exclusion of appellees' class [ Footnote 3/5] of children from state-provided education is a type of punitive discrimination based on status that is impermissible under the Equal Protection Clause. In reaching this conclusion, I am not unmindful of what must be the exasperation of responsible citizens and government authorities in Texas and other States similarly situated. Their responsibility, if any, for the influx of aliens is slight compared to that imposed by the Constitution on the Federal Government. [ Footnote 3/6] So long as the ease of entry remains inviting, Page 457 U. S. 241 and the power to deport is exercised infrequently by the Federal Government, the additional expense of admitting these children to public schools might fairly be shared by the Federal and State Governments. But it hardly can be argued rationally that anyone benefits from the creation within our borders of a subclass of illiterate persons, many of whom will remain in the State, adding to the problems and costs of both State and National Governments attendant upon unemployment, welfare, and crime. Page 457 U. S. 242 [ Footnote 3/1] Article I, 8, cl. 4, of the Constitution provides: "The Congress shall have Power . . . To establish an uniform Rule of Naturalization." The Federal Government has "broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization." Takahashi v. Fish & Game Comm'n, , (1948). See Graham v. Richardson, , (1971) (regulation of aliens is "constitutionally entrusted to the Federal Government"). The Court has traditionally shown great deference to federal authority over immigration and to federal classifications based upon alienage. See, e.g., Fiallo v. Bell, , (1977) ("it is important to underscore the limited scope of judicial inquiry into immigration legislation"); Harisiades v. Shaughnessy, , -589 (1952) ("It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference"). Indeed, even equal protection analysis in this area is based to a large extent on an underlying theme of preemption and exclusive federal power over immigration. See Takahashi v. Fish & Game Comm'n, supra, at (the Federal Government has admitted resident aliens to the country "on an equality of legal privileges with all citizens under nondiscriminatory laws," and the States may not alter the terms of this admission). Compare Graham v. Richardson, supra, and Sugarman v. Dougall, (1973), with Mathews v. Diaz, (1976), and Hampton v. Mow Sun Wong, (1976). Given that the States' power to regulate in this area is so limited, and that this is an area of such peculiarly strong federal authority, the necessity of federal leadership seems evident. [ Footnote 3/2] I emphasize the Court's conclusion that strict scrutiny is not appropriately applied to this classification. This exacting standard of review has been reserved for instances in which a "fundamental" constitutional right or a "suspect" classification is present. Neither is present in these cases, as the Court holds. [ Footnote 3/3] THE CHIEF JUSTICE argues in his dissenting opinion that this heightened standard of review is inconsistent with the Court's decision in San Antonio Independent School District v. Rodriguez, (1973). But in Rodriguez, no group of children was singled out by the State and then penalized because of their parents' status. Rather, funding for education varied across the State because of the tradition of local control. Nor, in that case, was any group of children totally deprived of all education, as in these cases. If the resident children of illegal aliens were denied welfare assistance, made available by government to all other children who qualify, this also -- in my opinion -- would be an impermissible penalizing of children because of their parents' status. [ Footnote 3/4] The State provides free public education to all lawful residents whether they intend to reside permanently in the State or only reside in the State temporarily. See ante at , n. 22. Of course, a school district may require that illegal alien children, like any other children, actually reside in the school district before admitting them to the schools. A requirement of de facto residency, uniformly applied, would not violate any principle of equal protection. [ Footnote 3/5] The classes certified in these cases included all undocumented school-age children of Mexican origin residing in the school district, see ante at , or the State. See In re Alien Children Education Litigation, 501 F. Supp. 544, 553 (SD Tex.1980). Even so, it is clear that neither class was thought to include mature Mexican minors who were solely responsible for violating the immigration laws. In 458 F. Supp. 569 (ED Tex.1978), the court characterized plaintiffs as "entire families who have migrated illegally." Id. at 578. Each of the plaintiff children in that case was represented by a parent or guardian. Similarly, the court in In re Alien Children Education Litigation found that "[u]ndocumented children do not enter the United States unaccompanied by their parents." 501 F. Supp. at 573. A different case would be presented in the unlikely event that a minor, old enough to be responsible for illegal entry and yet still of school age, entered this country illegally on his own volition. [ Footnote 3/6] In addition, the States' ability to respond on their own to the problems caused by this migration may be limited by the principles of preemption that apply in this area. See, e.g., Hines v. Davidowitz, (1941). In De Canas v. Bica, (1976), the Court found that a state law making it a criminal offense to employ illegal aliens was not preempted by federal authority over aliens and immigration. The Court found evidence that Congress intended state regulation in this area. Id. at ("there is evidence . . . that Congress intends that States may, to the extent consistent with federal law, regulate the employment of illegal aliens"). Moreover, under federal immigration law, only immigrant aliens and nonimmigrant aliens with special permission are entitled to work. See 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure, 1.34a, 1.36, 2.6b (1981). Because federal law clearly indicates that only certain specified aliens may lawfully work in the country, and because these aliens have documentation establishing this right, the State in De Canas was able to identify with certainty which aliens had a federal permission to work in this country. The State did not need to concern itself with an alien's current or future deportability. By contrast, there is no comparable federal guidance in the area of education. No federal law invites state regulation; no federal regulations identify those aliens who have a right to attend public schools. In addition, the Texas educational exclusion requires the State to make predictions as to whether individual aliens eventually will be found to be deportable. But it is impossible for a State to determine which aliens the Federal Government will eventually deport, which the Federal Government will permit to stay, and which the Federal Government will ultimately naturalize. Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country, perhaps even as a citizen. Indeed, even the Immigration and Naturalization Service cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp. IV). CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join, dissenting. Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children -- including illegal aliens -- of an elementary education. I fully agree that it would be folly -- and wrong -- to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. [ Footnote 4/1] However, the Constitution does not constitute us as "Platonic Guardians," nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense." See TVA v. Hill, , -195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today. The Court makes no attempt to disguise that it is acting to make up for Congress' lack of "effective leadership" in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. [ Footnote 4/2] Page 457 U. S. 243 See ante at -238 (POWELL, J., concurring). The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide "effective leadership" simply because the political branches of government fail to do so. The Court's holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of "remedies" for the failures -- or simply the laggard pace -- of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others. I In a sense, the Court's opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing. I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state. However, as the Court concedes, this "only begins the inquiry." Ante at . The Equal Protection Clause does not mandate identical treatment of different categories of persons. Jefferson v. Hackney, , (1972); Reed v. Reed, , (1971); Tigner v. Texas, , -148 (1940). The dispositive issue in these cases, simply put, is whether, for purposes of allocating its finite resources, a state has a legitimate reason to differentiate between persons Page 457 U. S. 244 who are lawfully within the state and those who are unlawfully there. The distinction the State of Texas has drawn -- based not only upon its own legitimate interests but on classifications established by the Federal Government in its immigration laws and policies -- is not unconstitutional. A The Court acknowledges that, except in those cases when state classifications disadvantage a "suspect class" or impinge upon a "fundamental right," the Equal Protection Clause permits a state "substantial latitude" in distinguishing between different groups of persons. Ante at -217. Moreover, the Court expressly -- and correctly -- rejects any suggestion that illegal aliens are a suspect class, ante at , n.19, or that education is a fundamental right, ante at , . Yet by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the Court spins out a theory custom-tailored to the facts of these cases. In the end, we are told little more than that the level of scrutiny employed to strike down the Texas law applies only when illegal alien children are deprived of a public education, see ante at -224. [ Footnote 4/3] If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.(1) The Court first suggests that these illegal alien children, although not a suspect class, are entitled to special solicitude under the Equal Protection Clause because they lack "control" over or "responsibility" for their unlawful entry into this country. Ante at , -224. Similarly, the Court appears to take the position that § 21.031 is presumptively "irrational" because it has the effect of imposing "penalties" Page 457 U. S. 245 on "innocent" children. Ibid. See also ante at -239 (POWELL, J., concurring). [ Footnote 4/4] However, the Equal Protection Clause does not preclude legislators from classifying among persons on the basis of factors and characteristics over which individuals may be said to lack "control." Indeed, in some circumstances, persons generally, and children in particular, may have little control over or responsibility for such things as their ill health, need for public assistance, or place of residence. Yet a state legislature is not barred from considering, for example, relevant differences between the mentally healthy and the mentally ill, or between the residents of different counties [ Footnote 4/5] simply because these may be factors unrelated to individual choice or to any "wrongdoing." The Equal Protection Clause protects against arbitrary and irrational classifications, and against invidious discrimination stemming from prejudice and hostility; it is not an all-encompassing "equalizer" designed to eradicate every distinction for which persons are not "responsible." Page 457 U. S. 246 The Court does not presume to suggest that appellees' purported lack of culpability for their illegal status prevents them from being deported or otherwise "penalized" under federal law. Yet would deportation be any less a "penalty" than denial of privileges provided to legal residents? [ Footnote 4/6] Illegality of presence in the United States does not -- and need not -- depend on some amorphous concept of "guilt" or "innocence" concerning an alien's entry. Similarly, a state's use of federal immigration status as a basis for legislative classification is not necessarily rendered suspect for its failure to take such factors into account. The Court's analogy to cases involving discrimination against illegitimate children -- see ante at ; ante at -239 (POWELL, J., concurring) -- is grossly misleading. The State has not thrust any disabilities upon appellees due to their "status of birth." Cf. Weber v. Aetna Casualty & Surety Co., , (1972). Rather, appellees' status is predicated upon the circumstances of their concededly illegal presence in this country, and is a direct result of Congress' obviously valid exercise of its "broad constitutional powers" in the field of immigration and naturalization. U.S.Const., Art. I, § 8, Cl. 4; see Takahashi v. Fish & Game Comm'n, , (1948). This Court has recognized that, in allocating governmental benefits to a given class of aliens, one "may take into account the character of the relationship between the alien and this country." Mathews v. Diaz, , (1976). When that "relationship" is a federally prohibited one, there can, of course, be no presumption that a state has a constitutional duty to include illegal aliens among the recipients of its governmental benefits. [ Footnote 4/7] Page 457 U. S. 247(2) The second strand of the Court's analysis rests on the premise that, although public education is not a constitutionally guaranteed right, "neither is it merely some governmental benefit' indistinguishable from other forms of social welfare legislation." Ante at . Whatever meaning or relevance this opaque observation might have in some other context [Footnote 4/8] it simply has no bearing on the issues at hand. Indeed, it is never made clear what the Court's opinion means on this score. The importance of education is beyond dispute. Yet we have held repeatedly that the importance of a governmental service does not elevate it to the status of a "fundamental right" for purposes of equal protection analysis. San Antonio Independent School Dist. v. Rodriguez, , (1973); Lindsey v. Normet, , -74 (1972). In San Antonio Independent School Dist., supra, JUSTICE POWELL, speaking for the Court, expressly rejected the proposition that state laws dealing with public education are subject to special scrutiny under the Equal Protection Clause. Moreover, the Court points to no meaningful way to distinguish between education and other governmental benefits Page 457 U. S. 248 in this context. Is the Court suggesting that education is more "fundamental" than food, shelter, or medical care? The Equal Protection Clause guarantees similar treatment of similarly situated persons, but it does not mandate a constitutional hierarchy of governmental services. JUSTICE POWELL, speaking for the Court in San Antonio Independent School Dist., supra, at , put it well in stating that, to the extent this Court raises or lowers the degree of "judicial scrutiny" in equal protection cases according to a transient Court majority's view of the societal importance of the interest affected, we "assum[e] a legislative role, and one for which the Court lacks both authority and competence." Yet that is precisely what the Court does today. See also Shapiro v. Thompson, , -661 (1969) (Harlan, J., dissenting). The central question in these cases, as in every equal protection case not involving truly fundamental rights "explicitly or implicitly guaranteed by the Constitution," San Antonio Independent School Dist., supra, at -34, is whether there is some legitimate basis for a legislative distinction between different classes of persons. The fact that the distinction is drawn in legislation affecting access to public education -- as opposed to legislation allocating other important governmental benefits, such as public assistance, health care, or housing -- cannot make a difference in the level of scrutiny applied. B Once it is conceded -- as the Court does -- that illegal aliens are not a suspect class, and that education is not a fundamental right, our inquiry should focus on and be limited to whether the legislative classification at issue bears a rational relationship to a legitimate state purpose. Vance v. Bradley, , (1979); Dandridge v. Williams, , -487 (1970); see ante at . [ Footnote 4/9] Page 457 U. S. 249 The State contends primarily that § 21.031 serves to prevent undue depletion of its limited revenues available for education, and to preserve the fiscal integrity of the State's school-financing system against an ever-increasing flood of illegal aliens -- aliens over whose entry or continued presence it has no control. Of course such fiscal concerns alone could not justify discrimination against a suspect class or an arbitrary and irrational denial of benefits to a particular group of persons. Yet I assume no Member of this Court would argue that prudent conservation of finite state revenues is, per se, an illegitimate goal. Indeed, the numerous classifications this Court has sustained in social welfare legislation were invariably related to the limited amount of revenues available to spend on any given program or set of programs. See, e.g., Jefferson v. Hackney, 406 U.S. at -551; Dandridge v. Williams, supra, at . The significant question here is whether the requirement of tuition from illegal aliens who attend the public schools -- as well as from residents of other states, for example -- is a rational and reasonable means of furthering the State's legitimate fiscal ends. [ Footnote 4/10] Page 457 U. S. 250 Without laboring what will undoubtedly seem obvious to many, it simply is not "irrational" for a state to conclude that it does not have the same responsibility to provide benefits for persons whose very presence in the state and this country is illegal as it does to provide for persons lawfully present. By definition, illegal aliens have no right whatever to be here, and the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expense of those who are lawfully in the state. [ Footnote 4/11] In De Canas v. Bica, , (1976), we held that a State may protect its "fiscal interests and lawfully resident labor force from the deleterious effects on its economy resulting from the employment of illegal aliens." And, only recently, this Court made clear that a State has a legitimate interest in protecting and preserving the quality of its schools and "the right of its own bona fide residents to attend such institutions on a preferential tuition basis." Vlandis v. Kline, , (1973) (emphasis added). See also Elkins v. Moreno, , -668 (1978). The Court has failed to offer even a plausible explanation why illegality of residence Page 457 U. S. 251 in this country is not a factor that may legitimately bear upon the bona fides of state residence and entitlement to the benefits of lawful residence. [ Footnote 4/12] It is significant that the Federal Government has seen fit to exclude illegal aliens from numerous social welfare programs, such as the food stamp program, 7 U.S.C. § 2015(f) (1976 ed. and Supp. IV) and 7 CFR § 273.4 (1981), the old-age assistance, aid to families with dependent children, aid to the blind, aid to the permanently and totally disabled, and supplemental security income programs, 45 CFR § 233.50 (1981), the Medicare hospital insurance benefits program, 42 U.S.C. § 1395i-2 and 42 CFR § 405.205(b) (1981), and the Medicaid hospital insurance benefits for the aged and disabled program, 42 U.S.C. § 1395 o and 42 CFR § 405.103(a)(4) (1981). Although these exclusions do not conclusively demonstrate the constitutionality of the State's use of the same classification for comparable purposes, at the very least they tend to support the rationality of excluding illegal alien residents of a state from such programs so as to preserve the state's finite revenues for the benefit of lawful residents. See Mathews v. Diaz, 426 U.S. at ; see also 457 U.S. 202fn4/7|>n. 7, supra. The Court maintains -- as if this were the issue -- that "barring undocumented children from local schools would not necessarily improve the quality of education provided in those Page 457 U. S. 252 schools." Ante at . See 458 F. Supp. 569, 577 (ED Tex.1978). [ Footnote 4/13] However, the legitimacy of barring illegal aliens from programs such as Medicare or Medicaid does not depend on a showing that the barrier would "improve the quality" of medical care given to persons lawfully entitled to participate in such programs. Modern education, like medical care, is enormously expensive, and there can be no doubt that very large added costs will fall on the State or its local school districts as a result of the inclusion of illegal aliens in the tuition-free public schools. The State may, in its discretion, use any savings resulting from its tuition requirement to "improve the quality of education" in the public school system, or to enhance the funds available for other social programs, or to reduce the tax burden placed on its residents; each of these ends is legitimate.'" The State need not show, as the Court implies, that the incremental cost of educating illegal aliens will send it into bankruptcy, or have a "`grave impact on the quality of education,'" ante at ; that is not dispositive under a "rational basis" scrutiny. In the absence of a constitutional imperative to provide for the education of illegal aliens, the State may "rationally" choose to take advantage of whatever savings will accrue from limiting access to the tuition-free public schools to its own lawful residents, excluding even citizens of neighboring States. [Footnote 4/14] Denying a free education to illegal alien children is not a choice I would make were I a legislator. Apart from compassionate considerations, the long-range costs of excluding any children from the public schools may well outweigh the costs of educating them. But that is not the issue; the fact Page 457 U. S. 253 that there are sound policy arguments against the Texas Legislature's choice does not render that choice an unconstitutional one. II The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem. Lindsey v. Normet, 405 U.S. at . See Reynolds v. Sims, , 377 U.S. 624 625 (1964) (Harlan, J., dissenting). Moreover, when this Court rushes in to remedy what it perceives to be the failings of the political processes, it deprives those processes of an opportunity to function. When the political institutions are not forced to exercise constitutionally allocated powers and responsibilities, those powers, like muscles not used, tend to atrophy. Today' cases, I regret to say, present yet another example of unwarranted judicial action which, in the long run, tends to contribute to the weakening of our political processes. [ Footnote 4/15] Congress, "vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens," ante at (POWELL, J., concurring), bears primary responsibility for addressing the problems occasioned by the millions of illegal aliens flooding across our southern border. Similarly, it is for Congress, and not this Court, to Page 457 U. S. 254 assess the "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." Ante at ; see ante at -224. While the "specter of a permanent caste" of illegal Mexican residents of the United States is indeed a disturbing one, see ante at -219, it is but one segment of a larger problem, which is for the political branches to solve. I find it difficult to believe that Congress would long tolerate such a self-destructive result -- that it would fail to deport these illegal alien families or to provide for the education of their children. Yet instead of allowing the political processes to run their course -- albeit with some delay -- the Court seeks to do Congress' job for it, compensating for congressional inaction. It is not unreasonable to think that this encourages the political branches to pass their problems to the Judiciary. The solution to this seemingly intractable problem is to defer to the political processes, unpalatable as that may be to some. [ Footnote 4/1] It does not follow, however, that a state should bear the costs of educating children whose illegal presence in this country results from the default of the political branches of the Federal Government. A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive. If the Federal Government, properly chargeable with deporting illegal aliens, fails to do so, it should bear the burdens of their presence here. Surely if illegal alien children can be identified for purposes of this litigation, their parents can be identified for purposes of prompt deportation. [ Footnote 4/2] The Department of Justice recently estimated the number of illegal aliens within the United States at between 3 and 6 million. Joint Hearing before the Subcommittee on Immigration, Refugees, and International Law of the House Committee on the Judiciary and the Subcommittee on Immigration and Refugee Policy of the Senate Committee on the Judiciary, 97th Cong., 1st Sess., 7 (1981) (testimony of Attorney General Smith). Other estimates run as high as 12 million. See Strout, Closing the Door on Immigration, Christian Science Monitor, May 21, 1982, p. 22, col. 4. [ Footnote 4/3] The Court implies, for example, that the Fourteenth Amendment would not require a state to provide welfare benefits to illegal aliens. [ Footnote 4/4] Both the opinion of the Court and JUSTICE POWELL's concurrence imply that appellees are being "penalized" because their parents are illegal entrants. Ante at ; ante at -239, and , n. 3 (POWELL, J., concurring). However, Texas has classified appellees on the basis of their own illegal status, not that of their parents. Children born in this country to illegal alien parents, including some of appellees' siblings, are not excluded from the Texas schools. Nor does Texas discriminate against appellees because of their Mexican origin or citizenship. Texas provides a free public education to countless thousands of Mexican immigrants who are lawfully in this country. [ Footnote 4/5] Appellees "lack control" over their illegal residence in this country in the same sense as lawfully resident children lack control over the school district in which their parents reside. Yet in San Antonio Independent School Dist. v. Rodriguez, (1973), we declined to review under "heightened scrutiny" a claim that a State discriminated against residents of less wealthy school districts in its provision of educational benefits. There was no suggestion in that case that a child's "lack of responsibility" for his residence in a particular school district had any relevance to the proper standard of review of his claims. The result was that children lawfully here but residing in different counties received different treatment. [ Footnote 4/6] Indeed, even children of illegal alien parents born in the United States can be said to be "penalized" when their parents are deported. [ Footnote 4/7] It is true that the Constitution imposes lesser constraints on the Federal Government than on the states with regard to discrimination against lawfully admitted aliens. E.g., Mathews v. Diaz, (1976); Hampton v. Mow Sun Wong, (1976). This is because "Congress and the President have broad power over immigration and naturalization which the States do not possess," Hampton, supra, at , and because state discrimination against legally resident aliens conflicts with and alters "the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states." Takahashi v. Fish & Game Comm'n, , (1948). However, the same cannot be said when Congress has decreed that certain aliens should not be admitted to the United States at all. [ Footnote 4/8] In support of this conclusion, the Court's opinion strings together quotations drawn from cases addressing such diverse matters as the right of individuals under the Due Process Clause to learn a foreign language, Meyer v. Nebraska, (1923); the First Amendment prohibition against state-mandated religious exercises in the public schools, Abington School District v. Schempp, (1963); and state impingements upon the free exercise of religion, Wisconsin v. Yoder, (1972). However, not every isolated utterance of this Court retains force when wrested from the context in which it was made. [ Footnote 4/9] This "rational basis standard" was applied by the Court of Appeals. 628 F.2d 448, 458-461 (1980). [ Footnote 4/10] The Texas law might also be justified as a means of deterring unlawful immigration. While regulation of immigration is an exclusively federal function, a state may take steps, consistent with federal immigration policy, to protect its economy and ability to provide governmental services from the "deleterious effects" of a massive influx of illegal immigrants. De Canas v. Bica, (1976); ante at , n. 23. The Court maintains that denying illegal aliens a free public education is an "ineffectual" means of deterring unlawful immigration, at least when compared to a prohibition against the employment of illegal aliens. Ante at -229. Perhaps that is correct, but it is not dispositive; the Equal Protection Clause does not mandate that a state choose either the most effective and all-encompassing means of addressing a problem or none at all. Dandridge v. Wiliams, , -487(1970). Texas might rationally conclude that more significant "demographic or economic problem[s]," ante at , are engendered by the illegal entry into the State of entire families of aliens for indefinite periods than by the periodic sojourns of single adults who intend to leave the State after short-term or seasonal employment. It blinks reality to maintain that the availability of governmental services such as education plays no role in an alien family's decision to enter, or remain in, this country; certainly, the availability of a free bilingual public education might well influence an alien to bring his children, rather than travel alone for better job opportunities. [ Footnote 4/11] The Court suggests that the State's classification is improper because "[a]n illegal entrant might be granted federal permission to continue to reside in this country, or even to become a citizen." Ante at . However, once an illegal alien is given federal permission to remain, he is no longer subject to exclusion from the tuition-free public schools under § 21.031. The Court acknowledges that the Tyler Independent School District provides a free public education to any alien who has obtained, or is in the process of obtaining, documentation from the United States Immigration and Naturalization Service. See ante at , n. 2. Thus, Texas has not taken it upon itself to determine which aliens are or are not entitled to United States residence. JUSTICE BLACKMUN's assertion that the Texas statute will be applied to aliens "who may well be entitled to . . . remain in the United States," ante at (concurring opinion), is wholly without foundation. [ Footnote 4/12] The Court's opinion is disingenuous when it suggests that the State has merely picked a "disfavored group" and arbitrarily defined its members as nonresidents. Ante at , n. 22. Appellees' "disfavored status" stems from the very fact that federal law explicitly prohibits them from being in this country. Moreover, the analogies to Virginians or legally admitted Mexican citizens entering Texas, ibid., are spurious. A Virginian's right to migrate to Texas, without penalty, is protected by the Constitution, see, e.g., Shapiro v. Thompson, (1969); and a lawfully admitted alien's right to enter the State is likewise protected by federal law. See Takahashi v. Fish & Game Comm'n, (1948). Cf. Zobel v. Williams, ante, p. . [ Footnote 4/13] The District Court so concluded primarily because the State would decrease its funding to local school districts in proportion to the exclusion of illegal alien children. 458 F. Supp. at 577. [ Footnote 4/14] I assume no Member of the Court would challenge Texas' right to charge tuition to students residing across the border in Louisiana who seek to attend the nearest school in Texas. [ Footnote 4/15] Professor Bickel noted that judicial review can have a "tendency over time seriously to weaken the democratic process." A. Bickel, The Least Dangerous Branch 21 (1962). He reiterated James Bradley Thayer's observation that "'the exercise of [the power of judicial review], even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.'" Id. at 22 (quoting J. Thayer, John Marshall 106-107 (1901)).

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Plyler v. Doe: A state cannot prevent children of undocumented immigrants from attending public school unless a substantial state interest is involved.

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Slide #5 Undocumented High School Students Are Now the "Post-DACA Generation"

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Slide #5 Undocumented High School Students Are Now the "Post-DACA Generation"

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In this online article, Tamez-Robledo discusses how the end of DACA will affect undocumented youth who migrate with their parents to the U.S.. Out of the 120,000 undocumented students who graduated from high school in 2023, only 24,000 students would be eligible to apply to DACA. Most students have aged out according to the legal rules.

Without legal protections from deportation and for college and work, these immigrant youth face an uncertain future. (Note: President Biden reaffirmed the DACA program and gave a health care option to existing recipients in June of 2024).

When immigrants are denied a pathway to legally staying in the U.S. it is hard for them to work at jobs and they live in constant fear of deportation. The 580,000 DACA recipients in the current program have been able to go to college, have legal documentation, hold jobs and have families without fear of deportation.

Since DACA constantly changes and is threatened by lawsuits and administration changes, it is important to keep up to date with the program status.

Reference:

Tamez-Robledo, N (2024, June 14). Undocumented high school students are now the ‘post-DACA generation. EdSurge. https://www.edsurge.com/news/2023-06-14-undocumented-high-school-students-are-now-the-post-daca-generation#:~:text=By%20Nadia%20Tamez%2DRobledo%20Jun%2014%2C%202023&text=This%20year%20marks%20the%20first,immigrant%20advocacy%20group%20FWD.us

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For thousands of high school students who are graduating, this time of year is all about looking to the future - namely, preparing for college in the fall.

Their undocumented peers, however, might feel like they're going backward.

That's because the federal policy that has, for the past 10 years, given immigrant youth who lack permanent legal status in the U.S. the ability to work and pay for college has been effectively cut off.

This year marks the first time since 2012 that a majority of undocumented high schoolers who are graduating won't be able to apply to the Deferred Action for Childhood Arrivals program, known simply as DACA, according to a new report from the immigrant advocacy group FWD.us.

In 2012, the DACA program was implemented by the Obama administration as temporary relief for young immigrants who grew up in the U.S. but face barriers to employment and higher education due to their legal status.

They're part of what the report dubs the "post-DACA generation."

Note: Estimates rounded to thousands. States with 1,000 or more undocumented high school graduates are shown. Source: FWD.us analysis of augmented 2021 American Community Survey data. Map: Nadia Tamez-Robledo

People in this situation often identify as "undocumented," referring to the fact that they don't have official forms granting them permission to live in the country. FWD.us estimates that 120,000 undocumented students are graduating from high school this year. Only a fifth of them are eligible for DACA protection, as the rules are currently written.

"Not all, but in many states, they don't have access to a higher education," Phillip Connor, senior demographer at FWD.us, tells EdSurge. "And that's the big distinction from the previous 'generations.'"

It's not just because the program is in limbo as opposing sides wait for a ruling on its legality from a judge in the U.S. Court of Appeals for the 5th Circuit. It's also because the program limits eligible applicants to those who arrived in the U.S. before June 15, 2007 - 16 years ago.

As of this year, "undocumented high school graduates who would be eligible for DACA would have entered the U.S. before they were 2 years old," according to the report. "By 2025, no undocumented high school graduates will be eligible for DACA under current rules."

A Fractured Landscape

About 100,000 undocumented students will graduate from high school every year for the next three years, according to the report, and there are an estimated 600,000 undocumented children in K-12 public schools. They have the right to this education thanks to Plyler v. Doe, a 1982 decision by the U.S. Supreme Court.

Yet as each year passes, the number of these students who are eligible for protections in their postsecondary lives will shrink.

That presents challenges for them as individuals. The uncertainty they face can make these young immigrants feel hopeless about their futures. They often encounter barriers that block them from pursuing the pathways open to their peers who do have citizenship or permanent legal status. Regardless of whether they have DACA protections, undocumented students are not eligible for federal financial aid for college.

That kicks college options to the states. And research from the Higher Ed Immigration Portal, a project of the Presidents' Alliance on Higher Education and Immigration, shows how fractured the postsecondary landscape has become for undocumented youth in the U.S. Some states, like California, Minnesota and Rhode Island, provide what the project describes as "comprehensive access" to in-state tuition and some state financial aid for college for undocumented students. Other states, like Louisiana, West Virginia and Vermont, have no known policies on the subject. Meanwhile, several other states bar undocumented students from enrolling at their public universities.

Beyond the implications for their personal lives, Connor argues, the country as a whole also suffers because young immigrants are afforded inadequate protections.

"Since the establishment of the DACA policy, they have contributed $100 billion to the economy in the past 10 years," he says. "That's a considerable impact to the economy, as essential workers, filling labor shortages. And we know they also have a very high labor force participation rate."

In the FWD.us report, Connor writes that the limitations on what undocumented graduates can do amounts to a "huge waste of years of K-12 education that states have invested in every student to prevent them from going further if they want to, and another cruel roadblock they face in the country they call home."

In a separate analysis of the country's 580,000 DACA recipients, Conner documents estimates that nearly half have attended college and nearly 80 percent are in the workforce.

The states with the most undocumented students graduating this year are Texas (18,000), California (14,000) and Florida (13,000). But Connor says that just because other states have far fewer total undocumented graduates doesn't mean they're feeling less of an impact from the DACA cutoff.

"In a state like Indiana with 2,000 undocumented graduates, that's a considerable number," Connor says. "We're often drawn to the top states, but in these other states, that's a larger kind of impact because of their relative size."

The researcher says that advocates for undocumented youths don't have much hope that the federal judge presiding over the DACA case in the 5th Circuit will rule in favor of the program's legality. FWD.us and other groups say the solution is for Congress to create a pathway to citizenship.

"The U.S. economy cannot afford to lose this graduating class of undocumented students, perhaps permanently," the report says.

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Undocumented High School Students Are Now the 'Post-DACA Generation' - EdSurge News

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Without legal protections from deportation and for college and work, these immigrant youth face an uncertain future.

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Slide # 7: Executive Order - Deferred Action for Childhood Arrivals (DACA)- Administrative Law

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Slide # 7: Executive Order - Deferred Action for Childhood Arrivals (DACA)- Administrative Law

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In 2012, President Obama issued this executive order to establish The Deferred Action for Childhood Arrivals (DACA) program.

Provides a two year period of temporary protection from deportation and the ability to work for undocumented students who immigrated to the U.S. as minors. Students can apply for a social security number and access certain benefits such as in-state college tuition, but it is not a path towards citizenship.

Even though  less students can benefit from DACA, it is important to understand eligibility. Students must have come to the US before their 16th birthday and have lived here since June 200, and be under the age of 31 as of June 15, 2012. Students must be currently in school, high school graduates and be law-abiding.

As a counselor, it is good to know the status of DACA revisions and the Development, Relief and Education for Alien Minors (DREAM) Act which seeks to replace DACA to provide a pathway to legal status for dreamers (kids whose parents brought them into the United States illegally). This legislation has not been able to pass through the legislature but is constantly being revised.

Text Link: https://www.uscis.gov/archive/2014-executive-actions-on-immigration#1

References:

KFF (2023, April 13). Key facts on Deferred Action for Childhood Arrivals (DACA).https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/#:~:text=DACA%20was%20originally%20established%20via,for%20renewable%20two%2Dyear%20periods.

USCIS (n.d). Consideration of Deferred Action for Childhood Arrivals (DACA). ttps://www.uscis.gov/DACA

Copy of the Tex t: US Citizen and Immigration Services.(2014) Executive actions on immigration. https://www.uscis.gov/archive/2014-executive-actions-on-immigration#1

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Consideration of Deferred Action for Childhood Arrivals (DACA)

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On June 15, 2012, the Secretary of Homeland Security announced that certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of 2 years, subject to renewal. They are also eligible to request work authorization.

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Slide # 9: Texas Senate Bill 1528 (2005)

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Slide # 9: Texas Senate Bill 1528 (2005)

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Undocumented students who qualify can access instate tuition rates at public higher education institutes in Texas.

Students must have lived in Texas 3 years prior to high school graduation and sign an affidavit of their intention to apply for legal status as soon as they are eligible.

Senate Bill 1528 (SB 1528) is an improvement of the Texas Dream Act(2001) which allowed undocumented students the chance to apply for in-state tuition and state financial aid.

Although undocumented students can not apply for federal financial aid, they can apply for Texas State financial aid using the Texas Application for Financial Student Aid.

Text Link: https://capitol.texas.gov/tlodocs/79R/billtext/html/SB01528F.HTM

References:

Tex. Educ. Code §54.052. Determination of resident status.

Texas Higher Education Coordinating Board. (April 2007) A Higher education brief residency and in-state tuition. https://www.sos.state.tx.us/border/forms/reports-07/thecb-april2007.pdf

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Undocumented students who qualify can access instate tuition rates at public higher education institutes in Texas. Students must have lived in Texas 3 years prior to high school graduation and sign an affidavit of their intention to apply for legal status as soon as they are eligible. S.B. 1528 is an improvement of the Texas Dream Act HB 1403 (2001) which allowed undocumented students the chance to apply for in-state tuition and state financial aid.  Although undocumented students can not apply for federal financial aid, they can apply for Texas State financial aid using the Texas Application for Financial Student Aid. Tex. Educ. Code §54.052. Determination of resident status.  Link to the text: https://capitol.texas.gov/tlodocs/79R/billtext/html/SB01528F.HTM References: Texas Higher Education Coordinating Board. (April 2007) A Higher education brief residency and in-state tuition. https://www.sos.state.tx.us/border/forms/reports-07/thecb-april2007.pdf

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Slide # 8- FERPA - Family Educational Rights and Privacy Act - Legislative Law

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Slide # 8- FERPA - Family Educational Rights and Privacy Act - Legislative Law

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The Family Educational Rights and Privacy Act (FERPA) is a federal law which protects the privacy of student educational records for all students, including undocumented students in schools receiving federal funding. The Code of Federal Regulations (C.F.R) lists the regulations of how to enact FERPA in a school setting.

Schools need permission from parents to release their student’s educational records. At age 18, the privacy rights to the student's records transfer to that student.

Schools can not disclose a student’s immigration status without the permission of parents.

Notable exceptions listed in 34 C.F.R §99 for student information disclosure include health or safety issues, if there is a criminal investigation or if a subpoena is issued. Student records may be transferred to other schools, used for financial aid purposes, or provided to juvenile justice system authorities.

Schools are considered sensitive areas (unless there are dangerous situations) and will not be patrolled for undocumented persons.

Directory information can be released by schools as long as they give parents enough time to opt-out.

Link : https://studentprivacy.ed.gov/ferpa

References:

Department of Education. (August 25, 2021). Family Educational Rights and Privacy Act. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

The Family Educational Rights and Privacy Act of 1974.(20 U.S.C. § 1232g; 34 CFR Part 99).

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34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY

Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

The current regulations can also be found at the Electronic Code of Federal Regulations: Title 34, Part 99--Family Educational Rights and Privacy.

The current statutes can be found at 20 U.S.C. 1232g - Family educational and privacy rights

To learn more about FERPA, please refer to the General Guidance for Parents or Students.

Parents and eligible students who wish to file a complaint under FERPA may do so on the File a Complaint page.
The Federal Register Notices of amendments to FERPA regulations can be found here:
34 CFR PART 99-FAMILY EDUCATIONAL RIGHTS AND PRIVACY
Contents Subpart A-General§99.1 To which educational agencies or institutions do these regulations apply?
§99.2 What is the purpose of these regulations?
§99.3 What definitions apply to these regulations?
§99.4 What are the rights of parents?
§99.5 What are the rights of students?
§99.6 [Reserved]
§99.7 What must an educational agency or institution include in its annual notification?
§99.8 What provisions apply to records of a law enforcement unit? Subpart B-What Are the Rights of Inspection and Review of Education Records?§99.10 What rights exist for a parent or eligible student to inspect and review education records?
§99.11 May an educational agency or institution charge a fee for copies of education records?
§99.12 What limitations exist on the right to inspect and review records? Subpart C-What Are the Procedures for Amending Education Records?§99.20 How can a parent or eligible student request amendment of the student's education records?
§99.21 Under what conditions does a parent or eligible student have the right to a hearing?
§99.22 What minimum requirements exist for the conduct of a hearing? Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?§99.30 Under what conditions is prior consent required to disclose information?
§99.31 Under what conditions is prior consent not required to disclose information?
§99.32 What recordkeeping requirements exist concerning requests and disclosures?
§99.33 What limitations apply to the redisclosure of information?
§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?
§99.35 What conditions apply to disclosure of information for Federal or State program purposes?
§99.36 What conditions apply to disclosure of information in health and safety emergencies?
§99.37 What conditions apply to disclosing directory information?
§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?
§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses? Subpart E-What Are the Enforcement Procedures?§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?
§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?
§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?
§99.63 Where are complaints filed?
§99.64 What is the investigation procedure?
§99.65 What is the content of the notice of investigation issued by the Office?
§99.66 What are the responsibilities of the Office in the enforcement process?
§99.67 How does the Secretary enforce decisions?
Appendix A to Part 99-Crimes of Violence Definitions
Subpart A-General

§99.1 To which educational agencies or institutions do these regulations apply?

(a) Except as otherwise noted in §99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary, if-

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section-

(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant, or subcontract; or

(2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IV-A-1 and IV-B, respectively, of the Higher Education Act of 1965, as amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, including each of its components (such as a department within a university).

(Authority: 20 U.S.C. 1232g)

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000]

§99.2 What is the purpose of these regulations?

The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

Note to §99.2: 34 CFR 300.610 through 300.626 contain requirements regarding the confidentiality of information relating to children with disabilities who receive evaluations, services or other benefits under Part B of the Individuals with Disabilities Education Act (IDEA). 34 CFR 303.402 and 303.460 identify the confidentiality of information requirements regarding children and infants and toddlers with disabilities and their families who receive evaluations, services, or other benefits under Part C of IDEA. 34 CFR 300.610 through 300.627 contain the confidentiality of information requirements that apply to personally identifiable data, information, and records collected or maintained pursuant to Part B of the IDEA.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996; 73 FR 74851, Dec. 9, 2008]

§99.3 What definitions apply to these regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g)

Attendance includes, but is not limited to-

(a) Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and

(b) The period during which a person is working under a work-study program.

(Authority: 20 U.S.C. 1232g)

Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in §99.31(a)(3) to conduct-with respect to Federal- or State-supported education programs-any audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that relate to these programs.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

Biometric record, as used in the definition of personally identifiable information, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

(Authority: 20 U.S.C. 1232g)

Dates of attendance. (a) The term means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter.

(b) The term does not include specific daily records of a student's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed.

(a) Directory information includes, but is not limited to, the student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status ( e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.

(b) Directory information does not include a student's-

(1) Social security number; or

(2) Student identification (ID) number, except as provided in paragraph (c) of this definition.

(c) In accordance with paragraphs (a) and (b) of this definition, directory information includes-

(1) A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and

(2) A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

(Authority: 20 U.S.C. 1232g(a)(5)(A))

Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(2))

Early childhood education program means-

(a) A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.), including a migrant or seasonal Head Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding;

(b) A State licensed or regulated child care program; or

(c) A program that-

(1) Serves children from birth through age six that addresses the children's cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and

(2) Is-

(i) A State prekindergarten program;

(ii) A program authorized under section 619 or part C of the Individuals with Disabilities Education Act; or

(iii) A program operated by a local educational agency.

Educational agency or institution means any public or private agency or institution to which this part applies under §99.1(a).

(Authority: 20 U.S.C. 1232g(a)(3))

Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(3), (b)(5))

Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of §99.8.

(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of the student; and

(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and

(5) Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student.

(6) Grades on peer-graded papers before they are collected and recorded by a teacher.

(Authority: 20 U.S.C. 1232g(a)(4))

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; "secondary school level" means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law.

(Authority: 20 U.S.C. 1232g(d))

Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

(Authority: 20 U.S.C. 1232g)

Party means an individual, agency, institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally Identifiable Information

The term includes, but is not limited to-

(a) The student's name;

(b) The name of the student's parent or other family members;

(c) The address of the student or student's family;

(d) A personal identifier, such as the student's social security number, student number, or biometric record;

(e) Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

(f) Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or

(g) Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

(Authority: 20 U.S.C. 1232g)

Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

(Authority: 20 U.S.C. 1232g)

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority.

(Authority: 20 U.S.C. 1232g)

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

(Authority: 20 U.S.C. 1232g(a)(6))

[53 FR 11943, Apr. 11, 1988, as amended at 60 FR 3468, Jan. 17, 1995; 61 FR 59295, Nov. 21, 1996; 65 FR 41852, July 6, 2000; 73 FR 74851, Dec. 9, 2008; 76 FR 75641, Dec. 2, 2011]

§99.4 What are the rights of parents?

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.

(Authority: 20 U.S.C. 1232g)

§99.5 What are the rights of students?

(a)(1) When a student becomes an eligible student, the rights accorded to, and consent required of, parents under this part transfer from the parents to the student.

(2) Nothing in this section prevents an educational agency or institution from disclosing education records, or personally identifiable information from education records, to a parent without the prior written consent of an eligible student if the disclosure meets the conditions in §99.31(a)(8), §99.31(a)(10), §99.31(a)(15), or any other provision in §99.31(a).

(b) The Act and this part do not prevent educational agencies or institutions from giving students rights in addition to those given to parents.

(c) An individual who is or has been a student at an educational institution and who applies for admission at another component of that institution does not have rights under this part with respect to records maintained by that other component, including records maintained in connection with the student's application for admission, unless the student is accepted and attends that other component of the institution.

(Authority: 20 U.S.C. 1232g(d))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3188, Jan. 7, 1993; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008]

§99.6 [Reserved]

§99.7 What must an educational agency or institution include in its annual notification?

(a)(1) Each educational agency or institution shall annually notify parents of students currently in attendance, or eligible students currently in attendance, of their rights under the Act and this part.

(2) The notice must inform parents or eligible students that they have the right to-

(i) Inspect and review the student's education records;

(ii) Seek amendment of the student's education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student's privacy rights;

(iii) Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that the Act and §99.31 authorize disclosure without consent; and

(iv) File with the Department a complaint under §§99.63 and 99.64 concerning alleged failures by the educational agency or institution to comply with the requirements of the Act and this part.

(3) The notice must include all of the following:

(i) The procedure for exercising the right to inspect and review education records.

(ii) The procedure for requesting amendment of records under §99.20.

(iii) If the educational agency or institution has a policy of disclosing education records under §99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

(b) An educational agency or institution may provide this notice by any means that are reasonably likely to inform the parents or eligible students of their rights.

(1) An educational agency or institution shall effectively notify parents or eligible students who are disabled.

(2) An agency or institution of elementary or secondary education shall effectively notify parents who have a primary or home language other than English.

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g (e) and (f))

[61 FR 59295, Nov. 21, 1996]

§99.8 What provisions apply to records of a law enforcement unit?

(a)(1) Law enforcement unit means any individual, office, department, division, or other component of an educational agency or institution, such as a unit of commissioned police officers or non-commissioned security guards, that is officially authorized or designated by that agency or institution to-

(i) Enforce any local, State, or Federal law, or refer to appropriate authorities a matter for enforcement of any local, State, or Federal law against any individual or organization other than the agency or institution itself; or

(ii) Maintain the physical security and safety of the agency or institution.

(2) A component of an educational agency or institution does not lose its status as a law enforcement unit if it also performs other, non-law enforcement functions for the agency or institution, including investigation of incidents or conduct that constitutes or leads to a disciplinary action or proceedings against the student.

(b)(1) Records of a law enforcement unit means those records, files, documents, and other materials that are-

(i) Created by a law enforcement unit;

(ii) Created for a law enforcement purpose; and

(iii) Maintained by the law enforcement unit.

(2) Records of a law enforcement unit does not mean-

(i) Records created by a law enforcement unit for a law enforcement purpose that are maintained by a component of the educational agency or institution other than the law enforcement unit; or

(ii) Records created and maintained by a law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action or proceeding conducted by the educational agency or institution.

(c)(1) Nothing in the Act prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.

(2) Education records, and personally identifiable information contained in education records, do not lose their status as education records and remain subject to the Act, including the disclosure provisions of §99.30, while in the possession of the law enforcement unit.

(d) The Act neither requires nor prohibits the disclosure by an educational agency or institution of its law enforcement unit records.

(Authority: 20 U.S.C. 1232g(a)(4)(B)(ii))

[60 FR 3469, Jan. 17, 1995]

Subpart B-What Are the Rights of Inspection and Review of Education Records?

§99.10 What rights exist for a parent or eligible student to inspect and review education records?

(a) Except as limited under §99.12, a parent or eligible student must be given the opportunity to inspect and review the student's education records. This provision applies to-

(1) Any educational agency or institution; and

(2) Any State educational agency (SEA) and its components.

(i) For the purposes of subpart B of this part, an SEA and its components constitute an educational agency or institution.

(ii) An SEA and its components are subject to subpart B of this part if the SEA maintains education records on students who are or have been in attendance at any school of an educational agency or institution subject to the Act and this part.

(b) The educational agency or institution, or SEA or its component, shall comply with a request for access to records within a reasonable period of time, but not more than 45 days after it has received the request.

(c) The educational agency or institution, or SEA or its component shall respond to reasonable requests for explanations and interpretations of the records.

(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student's education records, the educational agency or institution, or SEA or its component, shall-

(1) Provide the parent or eligible student with a copy of the records requested; or

(2) Make other arrangements for the parent or eligible student to inspect and review the requested records.

(e) The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.

(f) While an education agency or institution is not required to give an eligible student access to treatment records under paragraph (b)(4) of the definition of Education records in §99.3, the student may have those records reviewed by a physician or other appropriate professional of the student's choice.

(Authority: 20 U.S.C. 1232g(a)(1) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.11 May an educational agency or institution charge a fee for copies of education records?

(a) Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student.

(b) An educational agency or institution may not charge a fee to search for or to retrieve the education records of a student.

(Authority: 20 U.S.C. 1232g(a)(1))

§99.12 What limitations exist on the right to inspect and review records?

(a) If the education records of a student contain information on more than one student, the parent or eligible student may inspect and review or be informed of only the specific information about that student.

(b) A postsecondary institution does not have to permit a student to inspect and review education records that are:

(1) Financial records, including any information those records contain, of his or her parents;

(2) Confidential letters and confidential statements of recommendation placed in the education records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and

(3) Confidential letters and confidential statements of recommendation placed in the student's education records after January 1, 1975, if:

(i) The student has waived his or her right to inspect and review those letters and statements; and

(ii) Those letters and statements are related to the student's:

(A) Admission to an educational institution;

(B) Application for employment; or

(C) Receipt of an honor or honorary recognition.

(c)(1) A waiver under paragraph (b)(3)(i) of this section is valid only if:

(i) The educational agency or institution does not require the waiver as a condition for admission to or receipt of a service or benefit from the agency or institution; and

(ii) The waiver is made in writing and signed by the student, regardless of age.

(2) If a student has waived his or her rights under paragraph (b)(3)(i) of this section, the educational institution shall:

(i) Give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and

(ii) Use the letters and statements of recommendation only for the purpose for which they were intended.

(3)(i) A waiver under paragraph (b)(3)(i) of this section may be revoked with respect to any actions occurring after the revocation.

(ii) A revocation under paragraph (c)(3)(i) of this section must be in writing.

(Authority: 20 U.S.C. 1232g(a)(1) (A), (B), (C), and (D))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

Subpart C-What Are the Procedures for Amending Education Records?

§99.20 How can a parent or eligible student request amendment of the student's education records?

(a) If a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student's rights of privacy, he or she may ask the educational agency or institution to amend the record.

(b) The educational agency or institution shall decide whether to amend the record as requested within a reasonable time after the agency or institution receives the request.

(c) If the educational agency or institution decides not to amend the record as requested, it shall inform the parent or eligible student of its decision and of his or her right to a hearing under §99.21.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.21 Under what conditions does a parent or eligible student have the right to a hearing?

(a) An educational agency or institution shall give a parent or eligible student, on request, an opportunity for a hearing to challenge the content of the student's education records on the grounds that the information contained in the education records is inaccurate, misleading, or in violation of the privacy rights of the student.

(b)(1) If, as a result of the hearing, the educational agency or institution decides that the information is inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall:

(i) Amend the record accordingly; and

(ii) Inform the parent or eligible student of the amendment in writing.

(2) If, as a result of the hearing, the educational agency or institution decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it shall inform the parent or eligible student of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision of the agency or institution, or both.

(c) If an educational agency or institution places a statement in the education records of a student under paragraph (b)(2) of this section, the agency or institution shall:

(1) Maintain the statement with the contested part of the record for as long as the record is maintained; and

(2) Disclose the statement whenever it discloses the portion of the record to which the statement relates.

(Authority: 20 U.S.C. 1232g(a)(2))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59296, Nov. 21, 1996]

§99.22 What minimum requirements exist for the conduct of a hearing?

The hearing required by §99.21 must meet, at a minimum, the following requirements:

(a) The educational agency or institution shall hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student.

(b) The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

(c) The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing.

(d) The educational agency or institution shall give the parent or eligible student a full and fair opportunity to present evidence relevant to the issues raised under §99.21. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

(e) The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

(f) The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

(Authority: 20 U.S.C. 1232g(a)(2))

Subpart D-May an Educational Agency or Institution Disclose Personally Identifiable Information From Education Records?

§99.30 Under what conditions is prior consent required to disclose information?

(a) The parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records, except as provided in §99.31.

(b) The written consent must:

(1) Specify the records that may be disclosed;

(2) State the purpose of the disclosure; and

(3) Identify the party or class of parties to whom the disclosure may be made.

(c) When a disclosure is made under paragraph (a) of this section:

(1) If a parent or eligible student so requests, the educational agency or institution shall provide him or her with a copy of the records disclosed; and

(2) If the parent of a student who is not an eligible student so requests, the agency or institution shall provide the student with a copy of the records disclosed.

(d) "Signed and dated written consent" under this part may include a record and signature in electronic form that-

(1) Identifies and authenticates a particular person as the source of the electronic consent; and

(2) Indicates such person's approval of the information contained in the electronic consent.

(Authority: 20 U.S.C. 1232g (b)(1) and (b)(2)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 69 FR 21671, Apr. 21, 2004]

§99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:

(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.

(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party-

( 1) Performs an institutional service or function for which the agency or institution would otherwise use employees;

( 2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and

( 3) Is subject to the requirements of §99.33(a) governing the use and redisclosure of personally identifiable information from education records.

(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.

(2) The disclosure is, subject to the requirements of §99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer.

Note: Section 4155(b) of the No Child Left Behind Act of 2001, 20 U.S.C. 7165(b), requires each State to assure the Secretary of Education that it has a procedure in place to facilitate the transfer of disciplinary records with respect to a suspension or expulsion of a student by a local educational agency to any private or public elementary or secondary school in which the student is subsequently enrolled or seeks, intends, or is instructed to enroll.

(3) The disclosure is, subject to the requirements of §99.35, to authorized representatives of-

(i) The Comptroller General of the United States;

(ii) The Attorney General of the United States;

(iii) The Secretary; or

(iv) State and local educational authorities.

(4)(i) The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:

(A) Determine eligibility for the aid;

(B) Determine the amount of the aid;

(C) Determine the conditions for the aid; or

(D) Enforce the terms and conditions of the aid.

(ii) As used in paragraph (a)(4)(i) of this section, financial aid means a payment of funds provided to an individual (or a payment in kind of tangible or intangible property to the individual) that is conditioned on the individual's attendance at an educational agency or institution.

(Authority: 20 U.S.C. 1232g(b)(1)(D))

(5)(i) The disclosure is to State and local officials or authorities to whom this information is specifically-

(A) Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student whose records are released; or

(B) Allowed to be reported or disclosed pursuant to State statute adopted after November 19, 1974, subject to the requirements of §99.38.

(ii) Paragraph (a)(5)(i) of this section does not prevent a State from further limiting the number or type of State or local officials to whom disclosures may be made under that paragraph.

(6)(i) The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:

(A) Develop, validate, or administer predictive tests;

(B) Administer student aid programs; or

(C) Improve instruction.

(ii) Nothing in the Act or this part prevents a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section from entering into agreements with organizations conducting studies under paragraph (a)(6)(i) of this section and redisclosing personally identifiable information from education records on behalf of educational agencies and institutions that disclosed the information to the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section in accordance with the requirements of §99.33(b).

(iii) An educational agency or institution may disclose personally identifiable information under paragraph (a)(6)(i) of this section, and a State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section may redisclose personally identifiable information under paragraph (a)(6)(i) and (a)(6)(ii) of this section, only if-

(A) The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the organization that have legitimate interests in the information;

(B) The information is destroyed when no longer needed for the purposes for which the study was conducted; and

(C) The educational agency or institution or the State or local educational authority or agency headed by an official listed in paragraph (a)(3) of this section enters into a written agreement with the organization that-

( 1) Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;

( 2) Requires the organization to use personally identifiable information from education records only to meet the purpose or purposes of the study as stated in the written agreement;

( 3) Requires the organization to conduct the study in a manner that does not permit personal identification of parents and students, as defined in this part, by anyone other than representatives of the organization with legitimate interests;

and

( 4) Requires the organization to destroy all personally identifiable information when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed.

(iv) An educational agency or institution or State or local educational authority or Federal agency headed by an official listed in paragraph (a)(3) of this section is not required to initiate a study or agree with or endorse the conclusions or results of the study.

(v) For the purposes of paragraph (a)(6) of this section, the term organization includes, but is not limited to, Federal, State, and local agencies, and independent organizations.

(7) The disclosure is to accrediting organizations to carry out their accrediting functions.

(8) The disclosure is to parents, as defined in §99.3, of a dependent student, as defined in section 152 of the Internal Revenue Code of 1986.

(9)(i) The disclosure is to comply with a judicial order or lawfully issued subpoena.

(ii) The educational agency or institution may disclose information under paragraph (a)(9)(i) of this section only if the agency or institution makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action, unless the disclosure is in compliance with-

(A) A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;

(B) Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or

(C) An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

(iii)(A) If an educational agency or institution initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.

(B) If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution may disclose to the court, without a court order or subpoena, the student's education records that are relevant for the educational agency or institution to defend itself.

(10) The disclosure is in connection with a health or safety emergency, under the conditions described in §99.36.

(11) The disclosure is information the educational agency or institution has designated as "directory information", under the conditions described in §99.37.

(12) The disclosure is to the parent of a student who is not an eligible student or to the student.

(13) The disclosure, subject to the requirements in §99.39, is to a victim of an alleged perpetrator of a crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.

(14)(i) The disclosure, subject to the requirements in §99.39, is in connection with a disciplinary proceeding at an institution of postsecondary education. The institution must not disclose the final results of the disciplinary proceeding unless it determines that-

(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

(B) With respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

(ii) The institution may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.

(iii) This section applies only to disciplinary proceedings in which the final results were reached on or after October 7, 1998.

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if-

(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and

(B) The student is under the age of 21 at the time of the disclosure to the parent.

(ii) Paragraph (a)(15) of this section does not supersede any provision of State law that prohibits an institution of postsecondary education from disclosing information.

(16) The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the educational agency or institution under 42 U.S.C. 14071 and applicable Federal guidelines.

(b)(1) De-identified records and information. An educational agency or institution, or a party that has received education records or information from education records under this part, may release the records or information without the consent required by §99.30 after the removal of all personally identifiable information provided that the educational agency or institution or other party has made a reasonable determination that a student's identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.

(2) An educational agency or institution, or a party that has received education records or information from education records under this part, may release de-identified student level data from education records for the purpose of education research by attaching a code to each record that may allow the recipient to match information received from the same source, provided that-

(i) An educational agency or institution or other party that releases de-identified data under paragraph (b)(2) of this section does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;

(ii) The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain personally identifiable information about a student; and

(iii) The record code is not based on a student's social security number or other personal information.

(c) An educational agency or institution must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the agency or institution discloses personally identifiable information from education records.

(d) Paragraphs (a) and (b) of this section do not require an educational agency or institution or any other party to disclose education records or information from education records to any party except for parties under paragraph (a)(12) of this section.

(Authority: 20 U.S.C. 1232g(a)(5)(A), (b), (h), (i), and (j)).

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 61 FR 59296, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74852, Dec. 9, 2008; 74 FR 401, Jan. 6, 2009; 76 FR 75641, Dec. 2, 2011]

§99.32 What recordkeeping requirements exist concerning requests and disclosures?

(a)(1) An educational agency or institution must maintain a record of each request for access to and each disclosure of personally identifiable information from the education records of each student, as well as the names of State and local educational authorities and Federal officials and agencies listed in §99.31(a)(3) that may make further disclosures of personally identifiable information from the student's education records without consent under §99.33(b).

(2) The agency or institution shall maintain the record with the education records of the student as long as the records are maintained.

(3) For each request or disclosure the record must include:

(i) The parties who have requested or received personally identifiable information from the education records; and

(ii) The legitimate interests the parties had in requesting or obtaining the information.

(4) An educational agency or institution must obtain a copy of the record of further disclosures maintained under paragraph (b)(2) of this section and make it available in response to a parent's or eligible student's request to review the record required under paragraph (a)(1) of this section.

(5) An educational agency or institution must record the following information when it discloses personally identifiable information from education records under the health or safety emergency exception in §99.31(a)(10) and §99.36:

(i) The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and

(ii) The parties to whom the agency or institution disclosed the information.

(b)(1) Except as provided in paragraph (b)(2) of this section, if an educational agency or institution discloses personally identifiable information from education records with the understanding authorized under §99.33(b), the record of the disclosure required under this section must include:

(i) The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and

(ii) The legitimate interests under §99.31 which each of the additional parties has in requesting or obtaining the information.

(2)(i) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) that makes further disclosures of information from education records under §99.33(b) must record the names of the additional parties to which it discloses information on behalf of an educational agency or institution and their legitimate interests in the information under §99.31 if the information was received from:

(A) An educational agency or institution that has not recorded the further disclosures under paragraph (b)(1) of this section; or

(B) Another State or local educational authority or Federal official or agency listed in §99.31(a)(3).

(ii) A State or local educational authority or Federal official or agency that records further disclosures of information under paragraph (b)(2)(i) of this section may maintain the record by the student's class, school, district, or other appropriate grouping rather than by the name of the student.

(iii) Upon request of an educational agency or institution, a State or local educational authority or Federal official or agency listed in §99.31(a)(3) that maintains a record of further disclosures under paragraph (b)(2)(i) of this section must provide a copy of the record of further disclosures to the educational agency or institution within a reasonable period of time not to exceed 30 days.

(c) The following parties may inspect the record relating to each student:

(1) The parent or eligible student.

(2) The school official or his or her assistants who are responsible for the custody of the records.

(3) Those parties authorized in §99.31(a) (1) and (3) for the purposes of auditing the recordkeeping procedures of the educational agency or institution.

(d) Paragraph (a) of this section does not apply if the request was from, or the disclosure was to:

(1) The parent or eligible student;

(2) A school official under §99.31(a)(1);

(3) A party with written consent from the parent or eligible student;

(4) A party seeking directory information; or

(5) A party seeking or receiving records in accordance with §99.31(a)(9)(ii)(A) through (C).

(Approved by the Office of Management and Budget under control number 1880-0508)

(Authority: 20 U.S.C. 1232g(b)(1) and (b)(4)(A))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74853, Dec. 9, 2008]

§99.33 What limitations apply to the redisclosure of information?

(a)(1) An educational agency or institution may disclose personally identifiable information from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student.

(2) The officers, employees, and agents of a party that receives information under paragraph (a)(1) of this section may use the information, but only for the purposes for which the disclosure was made.

(b)(1) Paragraph (a) of this section does not prevent an educational agency or institution from disclosing personally identifiable information with the understanding that the party receiving the information may make further disclosures of the information on behalf of the educational agency or institution if-

(i) The disclosures meet the requirements of §99.31; and

(ii)(A) The educational agency or institution has complied with the requirements of §99.32(b); or

(B) A State or local educational authority or Federal official or agency listed in §99.31(a)(3) has complied with the requirements of §99.32(b)(2).

(2) A party that receives a court order or lawfully issued subpoena and rediscloses personally identifiable information from education records on behalf of an educational agency or institution in response to that order or subpoena under §99.31(a)(9) must provide the notification required under §99.31(a)(9)(ii).

(c) Paragraph (a) of this section does not apply to disclosures under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. 1092(f) (Clery Act), to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(d) An educational agency or institution must inform a party to whom disclosure is made of the requirements of paragraph (a) of this section except for disclosures made under §§99.31(a)(8), (9), (11), (12), (14), (15), and (16), and to information that postsecondary institutions are required to disclose under the Clery Act to the accuser and accused regarding the outcome of any campus disciplinary proceeding brought alleging a sexual offense.

(Authority: 20 U.S.C. 1232g(b)(4)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 65 FR 41853, July 6, 2000; 73 FR 74853, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.34 What conditions apply to disclosure of information to other educational agencies or institutions?

(a) An educational agency or institution that discloses an education record under §99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless:

(i) The disclosure is initiated by the parent or eligible student; or

(ii) The annual notification of the agency or institution under §99.7 includes a notice that the agency or institution forwards education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer;

(2) Give the parent or eligible student, upon request, a copy of the record that was disclosed; and

(3) Give the parent or eligible student, upon request, an opportunity for a hearing under subpart C.

(b) An educational agency or institution may disclose an education record of a student in attendance to another educational agency or institution if:

(1) The student is enrolled in or receives services from the other agency or institution; and

(2) The disclosure meets the requirements of paragraph (a) of this section.

(Authority: 20 U.S.C. 1232g(b)(1)(B))

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.35 What conditions apply to disclosure of information for Federal or State program purposes?

(a)(1) Authorized representatives of the officials or agencies headed by officials listed in §99.31(a)(3) may have access to education records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs.

(2) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) is responsible for using reasonable methods to ensure to the greatest extent practicable that any entity or individual designated as its authorized representative-

(i) Uses personally identifiable information only to carry out an audit or evaluation of Federal- or State-supported education programs, or for the enforcement of or compliance with Federal legal requirements related to these programs;

(ii) Protects the personally identifiable information from further disclosures or other uses, except as authorized in paragraph (b)(1) of this section; and

(iii) Destroys the personally identifiable information in accordance with the requirements of paragraphs (b) and (c) of this section.

(3) The State or local educational authority or agency headed by an official listed in §99.31(a)(3) must use a written agreement to designate any authorized representative, other than an employee. The written agreement must-

(i) Designate the individual or entity as an authorized representative;

(ii) Specify-

(A) The personally identifiable information from education records to be disclosed;

(B) That the purpose for which the personally identifiable information from education records is disclosed to the authorized representative is to carry out an audit or evaluation of Federal- or State-supported education programs, or to enforce or to comply with Federal legal requirements that relate to those programs; and

(C) A description of the activity with sufficient specificity to make clear that the work falls within the exception of §99.31(a)(3), including a description of how the personally identifiable information from education records will be used;

(iii) Require the authorized representative to destroy personally identifiable information from education records when the information is no longer needed for the purpose specified;

(iv) Specify the time period in which the information must be destroyed; and

(v) Establish policies and procedures, consistent with the Act and other Federal and State confidentiality and privacy provisions, to protect personally identifiable information from education records from further disclosure (except back to the disclosing entity) and unauthorized use, including limiting use of personally identifiable information from education records to only authorized representatives with legitimate interests in the audit or evaluation of a Federal- or State-supported education program or for compliance or enforcement of Federal legal requirements related to these programs.

(b) Information that is collected under paragraph (a) of this section must-

(1) Be protected in a manner that does not permit personal identification of individuals by anyone other than the State or local educational authority or agency headed by an official listed in §99.31(a)(3) and their authorized representatives, except that the State or local educational authority or agency headed by an official listed in §99.31(a)(3) may make further disclosures of personally identifiable information from education records on behalf of the educational agency or institution in accordance with the requirements of §99.33(b); and

(2) Be destroyed when no longer needed for the purposes listed in paragraph (a) of this section.

(c) Paragraph (b) of this section does not apply if:

(1) The parent or eligible student has given written consent for the disclosure under §99.30; or

(2) The collection of personally identifiable information is specifically authorized by Federal law.

(Authority: 20 U.S.C. 1232g(b)(1)(C), (b)(3), and (b)(5))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.36 What conditions apply to disclosure of information in health and safety emergencies?

(a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

(b) Nothing in this Act or this part shall prevent an educational agency or institution from-

(1) Including in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community;

(2) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials within the agency or institution who the agency or institution has determined have legitimate educational interests in the behavior of the student; or

(3) Disclosing appropriate information maintained under paragraph (b)(1) of this section to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.

(c) In making a determination under paragraph (a) of this section, an educational agency or institution may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the educational agency or institution determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))

[53 FR 11943, Apr. 11, 1988; 53 FR 19368, May 27, 1988, as amended at 61 FR 59297, Nov. 21, 1996; 73 FR 74854, Dec. 9, 2008]

§99.37 What conditions apply to disclosing directory information?

(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:

(1) The types of personally identifiable information that the agency or institution has designated as directory information;

(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and

(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.

(b) An educational agency or institution may disclose directory information about former students without complying with the notice and opt out conditions in paragraph (a) of this section. However, the agency or institution must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request.

(c) A parent or eligible student may not use the right under paragraph (a)(2) of this section to opt out of directory information disclosures to-

(1) Prevent an educational agency or institution from disclosing or requiring a student to disclose the student's name, identifier, or institutional email address in a class in which the student is enrolled; or

(2) Prevent an educational agency or institution from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information that may be designated as directory information under §99.3 and that has been properly designated by the educational agency or institution as directory information in the public notice provided under paragraph (a)(1) of this section.

(d) In its public notice to parents and eligible students in attendance at the agency or institution that is described in paragraph (a) of this section, an educational agency or institution may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When an educational agency or institution specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, the educational agency or institution must limit its directory information disclosures to those specified in its public notice that is described in paragraph (a) of this section.

(e) An educational agency or institution may not disclose or confirm directory information without meeting the written consent requirements in §99.30 if a student's social security number or other non-directory information is used alone or combined with other data elements to identify or help identify the student or the student's records.

(Authority: 20 U.S.C. 1232g(a)(5) (A) and (B))

[53 FR 11943, Apr. 11, 1988, as amended at 73 FR 74854, Dec. 9, 2008; 76 FR 75642, Dec. 2, 2011]

§99.38 What conditions apply to disclosure of information as permitted by State statute adopted after November 19, 1974, concerning the juvenile justice system?

(a) If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system's ability to effectively serve, prior to adjudication, the student whose records are released, an educational agency or institution may disclose education records under §99.31(a)(5)(i)(B).

(b) The officials and authorities to whom the records are disclosed shall certify in writing to the educational agency or institution that the information will not be disclosed to any other party, except as provided under State law, without the prior written consent of the parent of the student.

(Authority: 20 U.S.C. 1232g(b)(1)(J))

[61 FR 59297, Nov. 21, 1996]

§99.39 What definitions apply to the nonconsensual disclosure of records by postsecondary educational institutions in connection with disciplinary proceedings concerning crimes of violence or non-forcible sex offenses?

As used in this part:

Alleged perpetrator of a crime of violence is a student who is alleged to have committed acts that would, if proven, constitute any of the following offenses or attempts to commit the following offenses that are defined in appendix A to this part:

Arson

Assault offenses

Burglary

Criminal homicide-manslaughter by negligence

Criminal homicide-murder and nonnegligent manslaughter

Destruction/damage/vandalism of property

Kidnapping/abduction

Robbery

Forcible sex offenses.

Alleged perpetrator of a nonforcible sex offense means a student who is alleged to have committed acts that, if proven, would constitute statutory rape or incest. These offenses are defined in appendix A to this part.

Final results means a decision or determination, made by an honor court or council, committee, commission, or other entity authorized to resolve disciplinary matters within the institution. The disclosure of final results must include only the name of the student, the violation committed, and any sanction imposed by the institution against the student.

Sanction imposed means a description of the disciplinary action taken by the institution, the date of its imposition, and its duration.

Violation committed means the institutional rules or code sections that were violated and any essential findings supporting the institution's conclusion that the violation was committed.

(Authority: 20 U.S.C. 1232g(b)(6))

[65 FR 41853, July 6, 2000]

Subpart E-What Are the Enforcement Procedures?

§99.60 What functions has the Secretary delegated to the Office and to the Office of Administrative Law Judges?

(a) For the purposes of this subpart, Office means the Office of the Chief Privacy Officer, U.S. Department of Education.

(b) The Secretary designates the Office to:

(1) Investigate, process, and review complaints and violations under the Act and this part; and

(2) Provide technical assistance to ensure compliance with the Act and this part.

(c) The Secretary designates the Office of Administrative Law Judges to act as the Review Board required under the Act to enforce the Act with respect to all applicable programs. The term applicable program is defined in section 400 of the General Education Provisions Act.

(Authority: 20 U.S.C. 1232g (f) and (g), 1234)

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 82 FR 6253, Jan. 19, 2017]

§99.61 What responsibility does an educational agency or institution, a recipient of Department funds, or a third party outside of an educational agency or institution have concerning conflict with State or local laws?

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it must notify the Office within 45 days, giving the text and citation of the conflicting law. If another recipient of Department funds under any program administered by the Secretary or a third party to which personally identifiable information from education records has been non-consensually disclosed determines that it cannot comply with the Act or this part due to a conflict with State or local law, it also must notify the Office within 45 days, giving the text and citation of the conflicting law.

(Authority: 20 U.S.C. 1232g(f))

[76 FR 75642, Dec. 2, 2011]

§99.62 What information must an educational agency or institution or other recipient of Department funds submit to the Office?

The Office may require an educational agency or institution, other recipient of Department funds under any program administered by the Secretary to which personally identifiable information from education records is non-consensually disclosed, or any third party outside of an educational agency or institution to which personally identifiable information from education records is non-consensually disclosed to submit reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office's enforcement responsibilities under the Act or this part.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.63 Where are complaints filed?

A parent or eligible student may file a written complaint with the Office regarding an alleged violation under the Act and this part. The Office's address is: Family Policy Compliance Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202.

(Authority: 20 U.S.C. 1232g(g))

[65 FR 41854, July 6, 2000, as amended at 73 FR 74854, Dec. 9, 2008]

§99.64 What is the investigation procedure?

(a) A complaint must contain specific allegations of fact giving reasonable cause to believe that a violation of the Act or this part has occurred. A complaint does not have to allege that a violation is based on a policy or practice of the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or any third party outside of an educational agency or institution.

(b) The Office investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part. If the Office determines that an educational agency or institution or other recipient of Department funds under any program administered by the Secretary has failed to comply with a provision of the Act or this part, it may also determine whether the failure to comply is based on a policy or practice of the agency or institution or other recipient. The Office also investigates a timely complaint filed by a parent or eligible student, or conducts its own investigation when no complaint has been filed or a complaint has been withdrawn, to determine whether a third party outside of the educational agency or institution has failed to comply with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

(c) A timely complaint is defined as an allegation of a violation of the Act that is submitted to the Office within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation.

(d) The Office may extend the time limit in this section for good cause shown.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f) and (g))

[53 FR 11943, Apr. 11, 1988, as amended at 58 FR 3189, Jan. 7, 1993; 65 FR 41854, July 6, 2000; 73 FR 74854, Dec. 9, 2008; 76 FR 75643, Dec. 2, 2011]

§99.65 What is the content of the notice of investigation issued by the Office?

(a) The Office notifies in writing the complainant, if any, and the educational agency or institution, the recipient of Department funds under any program administered by the Secretary, or the third party outside of an educational agency or institution if it initiates an investigation under §99.64(b). The written notice-

(1) Includes the substance of the allegations against the educational agency or institution, other recipient, or third party; and

(2) Directs the agency or institution, other recipient, or third party to submit a written response and other relevant information, as set forth in §99.62, within a specified period of time, including information about its policies and practices regarding education records.

(b) The Office notifies the complainant if it does not initiate an investigation because the complaint fails to meet the requirements of §99.64.

(Authority: 20 U.S.C. 1232g(g))

[73 FR 74855, Dec. 9, 2008, as amended at 76 FR 75643, Dec. 2, 2011]

§99.66 What are the responsibilities of the Office in the enforcement process?

(a) The Office reviews a complaint, if any, information submitted by the educational agency or institution, other recipient of Department funds under any program administered by the Secretary, or third party outside of an educational agency or institution, and any other relevant information. The Office may permit the parties to submit further written or oral arguments or information.

(b) Following its investigation, the Office provides to the complainant, if any, and the educational agency or institution, other recipient, or third party a written notice of its findings and the basis for its findings.

(c) If the Office finds that an educational agency or institution or other recipient has not complied with a provision of the Act or this part, it may also find that the failure to comply was based on a policy or practice of the agency or institution or other recipient. A notice of findings issued under paragraph (b) of this section to an educational agency or institution, or other recipient that has not complied with a provision of the Act or this part-

(1) Includes a statement of the specific steps that the agency or institution or other recipient must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the educational agency or institution or other recipient may comply voluntarily.

(d) If the Office finds that a third party outside of an educational agency or institution has not complied with the provisions of §99.31(a)(6)(iii)(B) or has improperly redisclosed personally identifiable information from education records in violation of §99.33, the Office's notice of findings issued under paragraph (b) of this section-

(1) Includes a statement of the specific steps that the third party outside of the educational agency or institution must take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the third party may comply voluntarily.

(Authority: 20 U.S.C. 1232g(b)(4)(B), (f), and (g))

[76 FR 75643, Dec. 2, 2011]

§99.67 How does the Secretary enforce decisions?

(a) If an educational agency or institution or other recipient of Department funds under any program administered by the Secretary does not comply during the period of time set under §99.66(c), the Secretary may take any legally available enforcement action in accordance with the Act, including, but not limited to, the following enforcement actions available in accordance with part D of the General Education Provisions Act-

(1) Withhold further payments under any applicable program;

(2) Issue a complaint to compel compliance through a cease and desist order; or

(3) Terminate eligibility to receive funding under any applicable program.

(b) If, after an investigation under §99.66, the Secretary finds that an educational agency or institution, other recipient, or third party has complied voluntarily with the Act or this part, the Secretary provides the complainant and the agency or institution, other recipient, or third party with written notice of the decision and the basis for the decision.

(c) If the Office finds that a third party, outside the educational agency or institution, violates §99.31(a)(6)(iii)(B), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation of §99.31(a)(6)(iii)(B) access to personally identifiable information from education records for at least five years.

(d) If the Office finds that a State or local educational authority, a Federal agency headed by an official listed in §99.31(a)(3), or an authorized representative of a State or local educational authority or a Federal agency headed by an official listed in §99.31(a)(3), improperly rediscloses personally identifiable information from education records, then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the improper redisclosure access to personally identifiable information from education records for at least five years.

(e) If the Office finds that a third party, outside the educational agency or institution, improperly rediscloses personally identifiable information from education records in violation of §99.33 or fails to provide the notification required under §99.33(b)(2), then the educational agency or institution from which the personally identifiable information originated may not allow the third party found to be responsible for the violation access to personally identifiable information from education records for at least five years.

(Authority: 20 U.S.C. 1232g(b)(4)(B) and (f); 20 U.S.C. 1234c)

[76 FR 75643, Dec. 2, 2011]

Appendix A to Part 99-Crimes of Violence Definitions

Arson

Any willful or malicious burning or attempt to burn, with or without intent to defraud, a dwelling house, public building, motor vehicle or aircraft, personal property of another, etc.

Assault Offenses

An unlawful attack by one person upon another.

Note: By definition there can be no "attempted" assaults, only "completed" assaults.

(a) Aggravated Assault. An unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by means likely to produce death or great bodily harm. (It is not necessary that injury result from an aggravated assault when a gun, knife, or other weapon is used which could and probably would result in serious injury if the crime were successfully completed.)

(b) Simple Assault. An unlawful physical attack by one person upon another where neither the offender displays a weapon, nor the victim suffers obvious severe or aggravated bodily injury involving apparent broken bones, loss of teeth, possible internal injury, severe laceration, or loss of consciousness.

(c) Intimidation. To unlawfully place another person in reasonable fear of bodily harm through the use of threatening words or other conduct, or both, but without displaying a weapon or subjecting the victim to actual physical attack.

Note: This offense includes stalking.

Burglary

The unlawful entry into a building or other structure with the intent to commit a felony or a theft.

Criminal Homicide-Manslaughter by Negligence

The killing of another person through gross negligence.

Criminal Homicide-Murder and Nonnegligent Manslaughter

The willful (nonnegligent) killing of one human being by another.

Destruction/Damage/Vandalism of Property

To willfully or maliciously destroy, damage, deface, or otherwise injure real or personal property without the consent of the owner or the person having custody or control of it.

Kidnapping/Abduction

The unlawful seizure, transportation, or detention of a person, or any combination of these actions, against his or her will, or of a minor without the consent of his or her custodial parent(s) or legal guardian.

Note: Kidnapping/Abduction includes hostage taking.

Robbery

The taking of, or attempting to take, anything of value under confrontational circumstances from the control, custody, or care of a person or persons by force or threat of force or violence or by putting the victim in fear.

Note: Carjackings are robbery offenses where a motor vehicle is taken through force or threat of force.

Sex Offenses, Forcible

Any sexual act directed against another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent.

(a) Forcible Rape (Except "Statutory Rape"). The carnal knowledge of a person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her temporary or permanent mental or physical incapacity (or because of his or her youth).

(b) Forcible Sodomy. Oral or anal sexual intercourse with another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

(c) Sexual Assault With An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: An "object" or "instrument" is anything used by the offender other than the offender's genitalia. Examples are a finger, bottle, handgun, stick, etc.

(d) Forcible Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, forcibly or against that person's will, or both; or not forcibly or against the person's will where the victim is incapable of giving consent because of his or her youth or because of his or her temporary or permanent mental or physical incapacity.

Note: Forcible Fondling includes "Indecent Liberties" and "Child Molesting."

Nonforcible Sex Offenses (Except "Prostitution Offenses")

Unlawful, nonforcible sexual intercourse.

(a) Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

(b) Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.

(Authority: 20 U.S.C. 1232g(b)(6) and 18 U.S.C. 16)

[65 FR 41854, July 6, 2000]

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Below are the regulations at 34 CFR Part 99 implementing section 444 of the General Education Provision Act (GEPA), which is commonly referred to as the Family Educational Rights and Privacy Act (FERPA), and Federal Register Notices of amendments to FERPA. They are presented here for your convenience.

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Slide #10. Local Policy Administrative Law

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Slide #10. Local Policy Administrative Law

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Katy School Board of Trustees does not ask a students immigration and can not refuse the right for an undocumented student to go to school. Katy publishes its policy on a website to ensure public access.  Katy ISD elaborates on the confidentiality of records due to FERPA and discusses the logistics of how to implement FERPA policies in the school district in a practical way. FERPA also applies to undocumented students who have the same right to confidentiality as citizen students. Katy ISD's policy is an example of the localized logistics needed to enforce FERPA.

For example the policy issued by the Katy ISD School Board in 2023 states, “A district shall release student records in compliance with a judicial order, or pursuant to any lawfully issued subpoena, additional notice to the parent by the educational agency or institution is not required".

This section on student confidentiality also defines what are considered student records. Some data such as personal and family data, social adjustment ratings, records of school counselor conferences with the student, copies of correspondence with the parents, and any other records that may contribute to an understanding of the student.

Text Link: (https://pol.tasb.org/PolicyOnline/PolicyDetails?key=594&code=FL#legalTabContent

Reference:

Katy ISD Board Policy Manual ( Nov. 6, 2023). FL- Student Records. (https://pol.tasb.org/PolicyOnline/PolicyDetails?key=594&code=FL#legalTabContent

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The book, What Educators Need to Know About Immigration Law: Supporting Immigrant, Undocumented, and Refugee Students by Greg Cunningham is available on interlibrary loan. It provides useful practical information about terminology, clarifies legal policy and discusses scenarios that may occur with undocumented students. It provides a foundational basis to better advocate for undocumented students and their families.

Link to Amazon (or available at ASU library): https://read.amazon.com/kp/embed?asin=B0943FH112&preview=newtab&linkCode=kpe&ref_=cm_sw_r_kb_dp_CC6YE02RS52TQS49HEA5

References

Cunningham, G. (2021). What educators need to know about immigration law: Supporting immigrant, undocumented, and refugee students. Teachers College Press.

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Teachers, counselors, and school leaders have deep concerns about the impact of immigration law on their students' lives both within and outside of school. This book answers many questions that educators have asked of the author, who is a former teacher and legal advocate for ELL families, including the differences among immigrant, refugee, green card, and undocumented students; the right of a school to deny immigration officers entry to the building; and how to connect families to services. The author also clears up misconceptions and provides useful information on the specific challenges, dangers, and benefits of each noncitizen category and their impacts on students. He notes protections provided by law, even for the undocumented, with classroom scenarios that bring student issues to life. This essential resource clarifies the law in plain, accessible language with practical suggestions on agencies and resources that schools can access, or direct families to, for advocacy and other supports. It is truly a book that belongs in every school.

Book Features:

Offers a clear and concise explanation of immigration law and policy for teachers and school personnel.

Grounds the law and policy with real-life scenarios educators could encounter in their school or classroom.

Provides educators at every level with information they can use to advocate for their students and direct them toward needed services.

Offers helpful teacher and school "takeaway" sections.

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What Educators Need to Know About Immigration Law: Supporting Immigrant, Undocumented, and Refugee Students

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Buy What Educators Need to Know About Immigration Law: Supporting Immigrant, Undocumented, and Refugee Students: Read Kindle Store Reviews - Amazon.com

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Section A of the American School Counselor Code of Ethical Standards (2022) states that, counselors should " Support all students and their development by actively working to eliminate systemic barriers or bias... and provide culturally responsive instruction and counseling". Counselors also have the duty to "protect student confidentiality" which is of upmost importance in establishing trust with students who may be fearful of deportation. Dilemmas can occur when an undocumented student faces a crisis such as a suicide attempt and patient confidentiality has to be broken for the good of the students, but may put family members at risk for deportation.

Link:

https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#:~:text=School%20counselors%3A,their%20identity%20and%20psychosocial%20development.

Reference and Code of Ethics:

ASCA (2022). ASCA (2022). American School Counselor Code of Ethical Standards. Alexandria, VA: Author.

https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#:~:text=School%20counselors%3A,their%20identity%20and%20psychosocial%20development.

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Slide #13  Recommendations / Best Practices to Navigate the Legal Aspects of Undocumented Students

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Slide #13  Recommendations / Best Practices to Navigate the Legal Aspects of Undocumented Students

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Best Practices for Legal Compliance:

Ensure staff understands that undocumented students have the right to attend school and must be treated identical to citizens in their efforts to pursue and education.

Staff should maintain confidentiality for undocumented students by complying to FERPA laws. Students must be informed that legal status is confidential information; and confidentiality will be maintained unless a student is harmful to self or others.

Schools are considered safe places where students can not be picked up for deportation. Schools should plan in advance who and how to respond to inquiries from justice and immigration officials to avoid accidental release of information.

Communicate with students and families in order to establish a trusting environment through the use of translators, education about immigration laws, and provide resource lists with nonprofits who can assist families.

Train staff on current immigration concepts and law and how this affects undocumented students. Provide cultural training in order to be sensitive to different beliefs and cultures and to instill trust in school officials.

Ensure that documents needed for enrollment and other activities, such as athletic participation, are ones that are obtainable for undocumented parents and that the school is not putting up additional barriers to participation.

Be aware of the requirements for DACA and how to help undocumented students plan and pay for college. Keep up to date on the current legal status of school immigration law in order to help students navigate the process for a higher education.