COMMONWEALTH OF VIRGINIA
DEPARTMENT OF EDUCATION
P.O. BOX 2120
RICHMOND, VIRGINIA 23218-2120

SUPTS. MEMO NO. 159
November 2, 2001

INFORMATIONAL

TO: Division Superintendents
FROM: Jo Lynne DeMary
Superintendent of Public Instruction
SUBJECT: Enrollment of Undocumented Students From Foreign Countries and Other Enrollment Requirements

The purpose of this memorandum is to clarify the enrollment requirements for undocumented students from foreign countries and other students enrolling in Virginia public schools. Questions have arisen from several school divisions regarding a local school board's authority to inquire into a prospective student's citizenship or visa status and to bar enrollment to those students who reside within the school division but do not hold a student visa. In 1982, the United States Supreme Court ruled in Plyler v. Doe, 457 U.S. 202 (1982), that students who are illegal aliens may not be presumptively excluded from free public schooling. In 1999, the Office of the Attorney General, in response to an inquiry from Senator William C. Mims, stated that: 

* School divisions are not permitted to inquire into a prospective student's citizenship or visa status in order to enroll that student in school.

* School divisions shall accept students who meet the residency requirements under Section 22.1-3 of the Code of Virginia and may not deny a free public education to undocumented school-age children who reside within their jurisdictions because they do not hold valid United States citizenship or a student visa. 

Confidentiality of Information

When a student provides information to a school division for the purpose of enrollment, that information becomes part of the student's educational record and is, therefore, protected by the Family Educational Rights and Privacy Act. School divisions may not disclose information regarding the student's citizenship or visa status to the Immigration and Naturalization Service without parental consent except in accordance with 34 Code of Federal Regulations 99.31.

Residency Requirement

In order to receive a free public education from a local school division, students must reside within the school division. Section 22.1-3 of the Code of Virginia provides that a person is deemed to be a resident of a school division when:

* The person is living with a natural parent, or a parent by legal adoption;
* The parents of such person are dead, and the person is living with a person in loco parentis who actually resides within the school division;
* The parents of such person are unable to care for the person, and the person is living, not solely for school purposes, with another person who resides in the school division and is either the court-appointed guardian, or has legal custody of the person, or is acting in loco parentis pursuant to placement of the person for adoption;
* The person is living with a parent, guardian, or person in loco parentis in a temporary shelter in the school division, not solely for school purposes; 
* The person is living in the school division not solely for school purposes, as an emancipated minor; or
* The person lacks a fixed, regular, and adequate nighttime residence and has a primary nighttime residence located within the school division.

Other Enrollment Requirements

Anyone wishing to enroll a student in Virginia public schools for the first time in any public kindergarten or elementary school must also furnish, prior to admission, a report of a comprehensive physical exam, or records establishing that the student furnished such a report upon prior admission to another school or school division, and a completed health information form in accordance with the Code of Virginia 22.1-270. 

Anyone wishing to enroll a student for the first time in any public school in any school division must submit a certified copy of the student's birth record or affidavit stating the student's age in accordance with the Code of Virginia 22.1-3.1.

Those wishing to enroll a student in Virginia public schools must also meet several other requirements found in Virginia Code 22.1-3.2, 22.1-260 and 22.1-271.2. These code sections require the submission of a sworn statement or affirmation indicating whether the student has been expelled from another school for violations of school policies related to weapons, alcohol, drugs, or the willful infliction of injury to another person; has a social security number; and documentary proof of immunization. Federal law specifies, however, that no person can be denied a right, benefit, or privilege provided by law for refusing to disclose his or her Social Security number. Therefore, a student may not be denied enrollment because he or she does not have a Social Security number. 

If you have any questions, please contact Cynthia A. Cave, director of policy, at (mailto:cave@pen.k12.va.us) or at (804) 371-0558.


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