Federal Elementary and Secondary Education Programs and Unaccompanied Alien Children
Released: 2014-09-22T00:00:00

Introduction

The number of children coming to the United States who are not accompanied by a parent or legal guardian is raising a host of policy questions. While much of the congressional interest initially focused directly on immigration policy, the implications for other areas, including education, are now arising as well. Under federal law, states and LEAs are required to provide all children with equal access to a public elementary and secondary education, regardless of their immigration status. Upon arrival in the United States, unaccompanied alien children generally are initially served through programs operated by the Department of Health and Human Services' (HHS's) Office of Refugee Resettlement (ORR). While in these programs, children are provided with basic education services and activities and are not enrolled in local school systems. However, once an unaccompanied alien child is released to an appropriate sponsor (e.g., parent, other family member, or other adult), the child has the right to enroll in a local school, just like any other child living in that area, even while awaiting immigration proceedings.

In response to congressional interest in these issues, this report addresses possible sources of federal support for schools and local educational agencies that have enrolled unaccompanied alien children. It is not intended to provide a comprehensive review of all programs that could potentially serve these children. Rather, the first part of this report includes a discussion of three federal elementary and secondary education programs administered by the U.S. Department of Education (ED): (1) Title I-A Grants to Local Educational Agencies (LEAs) authorized by the Elementary and Secondary Education Act (ESEA), (2) English Language Acquisition Grants (Title III-A) authorized by the ESEA, and (3) Part B Grants to States authorized by the Individuals with Disabilities Education Act (IDEA) with an emphasis on how these programs could currently serve unaccompanied alien children or possibly be modified to increase support for these children. The second part of the report examines two programs that were previously administered by ED but are no longer funded. The first is the Emergency Immigrant Education Act (EIEA), which preceded the English Language Acquisition program. The second is the Temporary Emergency Impact Aid for Displaced Students program, which was enacted following Hurricanes Katrina and Rita to provide aid to states that enrolled elementary and secondary students who were displaced as a result of the storms. This program has been of particular interest to Congress because it provided aid on a short-term basis to schools and LEAs that experienced an unexpected influx of students. The next section of the report provides an overview of the Refugee School Impact Aid program administered by ORR, which funds activities aimed at the effective integration and education of refugee children. The last section of the report addresses the challenge of providing funds to LEAs and schools that are absorbing newly arriving unaccompanied children in light of the lack of local area data on the number of unaccompanied alien children that have been released from ORR custody. This section of the report includes ORR data on the number of unaccompanied alien children that have been released from ORR custody by county and state .

Current Federal Elementary and Secondary Education Programs Administered by ED

There are several existing federal education programs administered by ED that could be used by LEAs to support the education of unaccompanied alien children upon their arrival and in subsequent years. The three largest programs that are most relevant to serving this student population include Title I-A Grants to LEAs authorized under the ESEA, English Language Acquisition Grants authorized under Title III-A of the ESEA, and Part B Grants to States authorized under the IDEA. These are not the only programs from which unaccompanied alien children could benefit or may be served, but they are some of the largest federal elementary and secondary programs, and given their aims, they may receive consideration as vehicles to provide assistance to schools and LEAs absorbing unaccompanied alien children. An overview of each program is provided below with a brief explanation of how the program is particularly relevant to unaccompanied alien children.

Title I-A Grants to LEAs for Disadvantaged Students

Title I, Part A, of the ESEA authorizes federal aid to LEAs for the education of disadvantaged children. Title I-A grants provide supplementary educational and related services to low-achieving and other students attending pre-kindergarten through grade 12 schools with relatively high concentrations of students from low-income families. It has also become a "vehicle" to which a number of requirements affecting broad aspects of public K-12 education for all students have been attached as a condition for receiving Title I-A grants. For FY2014, the program was funded at $14.4 billion.

Title I-A funds are allocated by the U.S. Department of Education (ED) to state educational agencies (SEAs), which then suballocate grants to LEAs. It is one of the few federal K-12 formula grant programs for which substate grants are, in most cases, calculated by ED. Portions of each annual appropriation for Title I-A are allocated under four different formulas—Basic, Concentration, Targeted, and Education Finance Incentive Grants—although funds allocated under all of these formulas are combined and used for the same purposes by recipient LEAs. Although the allocation formulas have several distinctive elements, the primary factors used in all four formulas are estimated numbers of children aged 5-17 in poor families plus a state expenditure factor based on average expenditures per pupil for public K-12 education.

Within LEAs, Title I-A funds are used to provide supplementary educational services to students at public schools with the highest percentages or numbers of children from low-income families, as well as eligible students who live in the areas served by these public schools, but who attend private schools. While there are several program rules related to school selection, the participating schools must generally have a percentage or number of children from low-income families that is greater than the LEA's average. LEAs can generally choose to focus Title I-A services on selected grade levels (e.g., only in elementary schools), but they must usually provide services in all schools, without regard to their grade level, where the percentage of students from low-income families exceeds 75%. Once schools are selected, Title I-A funds are allocated among them on the basis of their number of students from low-income families.

There are two basic types of Title I-A programs. Schoolwide programs are authorized if the percentage of low-income students served by a school is 40% or higher. In schoolwide programs, Title I-A funds may be used to improve the performance of all students in a school. For example, funds might be used to provide professional development services to all of a school's teachers, upgrade instructional technology, or implement new curricula. The other major type of Title I-A school service model is the targeted assistance program. This was the original type of Title I-A program, under which Title I-A-funded services are generally limited to the lowest achieving students in the school. For example, students may be "pulled out" of their regular classroom for several hours of more intensive instruction by a specialist teacher each week, or they may receive such instruction in an after-school program, or funds may be used to hire a teacher's aide who provides additional assistance to low-achieving students in their regular classroom.

If an unaccompanied alien child enrolls in a school receiving Title I-A funds, the student may immediately be eligible for services, depending on the student's academic needs and the type of Title I-A program the school is operating. If the student remains in the school and is a low-income student, the student may eventually be included in the data used to determine Title I-A grants to schools and the estimates of the number of children living in families in poverty within the LEA.

Title III-A: English Language Acquisition Program

Title III-A was designed to help ensure that limited English proficient (LEP) students, including immigrant students, attain English proficiency, develop high levels of academic attainment in English, and meet the same state academic content and student academic achievement standards that all students are expected to meet. For the purposes of the English Language Acquisition program, "immigrant children and youth" are defined as individuals ages 3 through 21 who were not born in any state and have not been attending one or more schools in any one or more states for more than three full academic years. For FY2014, the program received $723 million.

Formula grant allocations are made to states based on the proportion of LEP students and immigrant students in each state relative to all states. These amounts are weighted by 80% and 20%, respectively, resulting in a formula allocation based primarily on the number of LEP students in each state. States make subgrants to eligible entities (often LEAs) based on the relative number of LEP students in schools served by the eligible entity. States are also required to reserve up to 15% of the state allocation to make grants to eligible entities that have experienced a significant increase in the number of immigrant students enrolled in schools in the geographic area served by the eligible entity. States that are not reserving the full 15% of Title III-A funds to support LEAs that have experienced a significant increase in the number of immigrant students have the discretion to increase the percentage of funds reserved for this purpose. It should be noted that recent immigrant students could benefit from the funds set aside specifically for immigrant students as well as the majority of the funding provided under the English Language Acquisition program which focuses on increasing English language proficiency and student academic achievement in core academic subjects.

Eligible entities receiving subgrants are required to use funds for two activities. Funds must be used to increase the English language proficiency of LEP students by providing high-quality instructional programs that are grounded in scientifically based research that demonstrates the program is effective in increasing English language proficiency and student academic achievement in core academic subjects. Funds must also be used to provide high-quality professional development to school staff or community-based personnel that work with LEP students. Eligible entities receiving grants from the funds reserved specifically for immigrant students are required to use these funds to support activities that "provide enhanced instructional opportunities" for immigrant students.

If Congress wants to provide additional funds under the English Language Acquisition program to LEAs that have experienced a significant increase in the number of immigrant students, there are several options that could be considered. The overall program appropriation could be increased, which would increase state allocations (assuming all other factors remained constant). This would mean that the 15% reservation of funds would be based on a higher state allocation amount. Another option would be to increase the 15% cap on the percentage of funds that could be reserved to support such LEAs. However, this would leave less funding to support the LEP students (including immigrant students) served through the main program. Other options would be to change the underlying formula used to award grants to states to increase the weight given to immigrant students or use annual state data to determine the count of recent immigrant children and youth. This could result in some states receiving higher grant amounts and some states receiving lower grant amounts.

IDEA, Part B Grants to States9

IDEA Part B provides federal funding for the education of school-age children with disabilities and requires, as a condition for the receipt of such funds, the provision of a free appropriate public education (FAPE). FAPE involves the provision of specially designed instruction provided at no cost to parents that meets the needs of a child with a disability. IDEA contains procedural safeguards, which are provisions intended to protect the rights of parents and their children with disabilities regarding the provision of FAPE. In FY2014, IDEA Part B received $12.3 billion.

To be covered under IDEA, a child with a disability must meet one or more of the categorical definitions of disability in the act, and the child must require special education and related services as a result of the disability in order to benefit from public education. Once a child meets IDEA's eligibility criteria, FAPE is implemented through an Individualized Education Program (IEP), which is the plan for providing special education, related services, and accommodations by the LEA.

To receive services under IDEA, an unaccompanied alien child would first have to be identified as having or potentially having a disability that meets the IDEA eligibility criteria and subsequently be evaluated by the LEA to determine whether the child is a child with a disability and to determine the child's educational needs prior to the student being eligible for services under IDEA. That is, unaccompanied alien children would not be eligible for services under IDEA when they initially enroll in a school. If, however, as a result of the aforementioned evaluation process an unaccompanied alien child is determined to have met the IDEA eligibility criteria, the child is eligible for services under IDEA.

Other Potentially Relevant Federal Education Programs that Are No Longer Funded

In addition to the current federal education programs that may be useful in assisting LEAs in meeting the needs of recent immigrant students, there are other federal education programs administered by ED that are no longer funded that either focused on immigrant students (Emergency Immigrant Education Act) or have been used in the past to assist schools and LEAs experiencing an unexpected influx of students in elementary and secondary school (Temporary Emergency Impact Aid for Displaced Students).

Emergency Immigrant Education Act (EIEA)

This program was formerly included in the ESEA (Title VII-C) and was eliminated when the English Language Acquisition program was enacted under the No Child Left Behind Act of 2002 ( P.L. 107-110 ). With respect to the need for the EIEA program, Congress found that "local educational agencies have struggled to fund adequately education services"; states have the responsibility to educate all students regardless of immigration status; and "immigration policy is solely a responsibility of the Federal Government."

The program was designed to assist LEAs that experienced "unexpectedly large increases in their student population due to immigration" to provide high-quality instruction to these students, assist with their transition into American society, and help them to meet the challenging state performance standards expected of all children. Similar to the English Language Acquisition program, "immigrant children and youth" were defined as individuals ages 3 through 21 who were not born in any state and have not been attending school in any one or more states for more than three full academic years. Under the EIEA program, formula grants were awarded to states based on each state's proportional share of immigrant children and youth enrolled in public elementary and secondary schools served by an LEA and nonpublic elementary and secondary schools within the LEA. However, in determining the number of immigrant students, only immigrant students enrolled in LEAs in which (1) the LEA enrolled at least 500 of such children or (2) such children represented at least 3% of the total number of students enrolled in such public or nonpublic schools during the fiscal year were included in the state count. Immigrant students enrolled in LEAs that did not meet either of these criteria were not included in the determination of the state's grant amount. Funds provided under this program had to be used to pay for "enhanced instructional opportunities" for immigrant children and youth.

While a comparable program to the EIEA could be developed to meet the needs of recent immigrant students, the reservation of funds for immigrant students under the English Language Acquisition program may already be addressing this aspect of providing assistance to such children. As previously discussed, the English Language Acquisition program includes provisions requiring states to reserve up to 15% of the state allocation to make grants to eligible entities that have experienced a significant increase in the number of immigrant students enrolled in schools in the geographic area served by the eligible entity. Similar to the EIEA program, these funds must be used to provide "enhanced instructional opportunities" for immigrant students.

Temporary Emergency Impact Aid for Displaced Students

Following Hurricanes Katrina and Rita, Section 107 of P.L. 109-148 authorized the Secretary of Education (hereinafter referred to as the Secretary) to award Temporary Emergency Impact Aid for Displaced Students Grants to SEAs to enable them to award funds to eligible LEAs and Bureau of Indian Affairs (BIA)-funded schools for the education of students displaced by the natural disaster. Under the program, federal funding was made available to LEAs and schools on a per-student basis, irrespective of whether the school in which parents chose to enroll their child was a public or nonpublic school. Aid was limited to LEAs and schools serving students displaced by Hurricanes Katrina and Rita.

Under the program, the Secretary was authorized to make four quarterly payments to SEAs, which in turn awarded funds to LEAs and BIA-funded schools on a per-student basis. A maximum of $6,000 was authorized per displaced student (and up to $7,500 per displaced student served under IDEA, Part B). If insufficient funds were available to pay the full amount which an LEA or BIA-funded school was eligible to receive, then awards were required to be proportionately reduced. LEAs and eligible BIA-funded schools were permitted to use these funds for the purpose of providing services and assistance to elementary and secondary schools enrolling displaced students during the 2005-2006 school year. LEAs serving areas in which displaced students enrolled in nonpublic schools prior to December 20, 2005, were required to deposit a proportionate amount of funds into student accounts on behalf of such students. Nonpublic schools, in turn, were able to access funds from student accounts for authorized uses. The amount to be deposited into each student account could not exceed the cost of tuition and fees at the nonpublic school a student attends. Nonpublic schools were also required to waive or reimburse tuition in order to access funds from student accounts.

For FY2006, $645 million was appropriated. The program initially expired on August 1, 2006. P.L. 109-234 provided an additional $235 million for the program and extended the period of obligation until September 30, 2006, but only for expenses incurred during the 2005-2006 school year. Portions of the funds were provided to 49 states and the District of Columbia.

LEAs, BIA-funded schools, and eligible non-public schools could use Temporary Emergency Impact Aid for Displaced Students program funds for the following purposes:

paying the compensation of personnel, including teacher aides, in schools enrolling displaced students; identifying and acquiring curricular material, including the costs of providing additional classroom supplies, and mobile educational units and leasing sites or spaces; basic instructional services for such students, including tutoring, mentoring, or academic counseling; reasonable transportation costs; health and counseling services; and education and support services.

These funds could not be used for construction or major renovations.

Under the program, neither LEAs nor non-public schools were required to use funds exclusively to serve displaced students. While funds could be used specifically to serve displaced students, they could also be used for activities and services related to serving displaced students, such as educational programs or transportation services that benefit both displaced students and other students.

SEAs were required to notify parents and guardians of displaced students that they had the option of enrolling their child in a public or non-public school; and that the aid provided under the program was temporary and only available for the 2005-2006 school year. The program contained no prohibition against non-public schools using federal funds received through student accounts to compensate personnel engaged in religious instruction or to purchase curricular materials and classroom supplies to be used in religious instruction. Funds were required to be deposited into student accounts only at the request of the parent or guardian of a displaced student. The parent or guardian of a displaced student had to be provided with the option of having their child opt out of religious worship or religious classes. While students were able to opt out of religious instruction, there did not appear to be any prohibition against funds made available on a child's behalf (at the request of the child's parent or guardian) being used for religiously oriented activities on a schoolwide basis.

A comparable program could be developed to support SEAs, LEAs, or schools serving unaccompanied alien children. In order to create a similar program, however, states, LEAs, schools, or the ORR would need to identify how many eligible children were enrolled in schools in a given state or LEA. The ORR is responsible for the placement of unaccompanied alien children in appropriate custody and, therefore, may be best positioned to make these determinations. Various decisions regarding the program structure would also need to be made, including determining the program appropriation level, the period of time for which funds would be provided, whether higher grant amounts would be provided for unaccompanied alien children who are eligible for services under IDEA, and whether funds would be provided only on behalf of unaccompanied alien children attending public schools or also on behalf of unaccompanied alien children enrolled in private schools.

Refugee School Impact Aid

There is one smaller program—not part of those funded by the U.S. Department of Education—that provides current funding for a portion of the unaccompanied alien children. Unaccompanied alien children who receive asylum are eligible for assistance through the Refugee School Impact Aid program. In 1980, Congress enacted the Refugee Education Assistance Act ( P.L. 96-422 ) only a few months after passing the landmark Refugee Act of 1980 established the ORR. Among other features, P.L. 96-422 authorized special impact aid to LEAs for the education of Cuban, Haitian, and Indochinese children who had sought refuge in the United States. The vestige of the Refugee Education Assistance Act exists today in ORR's Refugee School Impact Aid program, which funds activities aimed at the effective integration and education of refugee children. The most current report from ORR indicates this program provided grants totaling $15 million in FY2012 to state governments and nonprofit groups to assist local school systems impacted by significant numbers of refugee children.

Unaccompanied alien children who have received asylum in the United States number 108 children through the third quarter of FY2014. Only two of these approved cases were for unaccompanied children apprehended in FY2014. All of the other approved cases were for unaccompanied children apprehended in prior years. As a consequence, the ORR's Refugee School Impact Aid program would not be a major source of funding unless Congress amended the law to include all, or additional classes of, unaccompanied alien children among those eligible for the assistance. Much as Congress specified in the law that the Cuban and Haitian Entrant children who were not deemed as refugees or asylees under the Immigration and Nationality Act were eligible for the Refugee Education Assistance Act, so too Congress might consider amending the provision to include unaccompanied alien children that ORR has temporarily released to a parent or sponsor.

Limited Data on Placement of Unaccompanied Alien Children

One of the principal challenges of providing funds to LEAs that are absorbing newly arriving unaccompanied children is the lack of local area data. The best available data from the ORR are county-level totals that do not indicate the age of the child. As many LEAs do not conform to county boundaries, any formula distributions would be approximate at best. Information on the specific schools that may be receiving the recent influx of unaccompanied children does not exist.

ORR has begun releasing state-level data of unaccompanied alien children released to sponsors, and the most complete data available are from January 1, 2014, to July 31, 2014. A total of 37,477 unaccompanied alien children were released during this seven-month period. The data do not provide information on the child's country of birth or other demographic details. As Figure 1 shows, four states dominate among host homes for unaccompanied alien children: Texas, New York, California, and Florida.

Table 1 presents the data that ORR has made publically available, beginning in January 1, 2014. Six counties have received over 1,000 unaccompanied alien children during the period January 1 to July 31, 2014: Harris, TX; Los Angeles, CA; Suffolk, NY; Miami-Dade, FL; Nassau, NY; and Fairfax, VA.