All Children Can Learn: Providing Equal Education Opportunities for Migrant Students (Comment)

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Title

All Children Can Learn: Providing Equal Education Opportunities for Migrant Students (Comment)

Description

This comment examines the educational services currently being provided to the sub-population of migrant students, analyzes why the legal mandate of providing equal educational opportunities is not being met, and proposes a workable solution that states can implement in the vital quest to achieve the Court's goal of providing all children an equal education. Part II provides a historical background on the life of migrant farm workers and their children, demonstrating how this unique lifestyle creates special educational needs for the migrant student. Part III discusses Congress' historical role in education and the legislative history of the Migrant Education Program (MEP). Part III also examines the eligibility qualifications for the MEP, state funding allocations, and local and state accountability under the MEP. Part IV examines how the Migrant Student Records Transfer System (MSRTS) originated, evolved over approximately thirty years, and how it was eventually dismantled. Part IV also analyzes how the MEP fails to meet the needs of migrant students without a national database, such as the MSRTS, to track and disseminate student information. Part V proposes a Congressionally-mandated national database to transfer student records be implemented to serve America's migrant students. Helping migrant students receive educational services that address their special needs will ensure these at-risk students have a chance to receive the same academic opportunities as non-migrant students. Such a result would give meaning to and effectuate the Supreme Court's intent of educational opportunities being available to all children on equal terms.

Creator

Michelle R. Holleman

Publisher

The Scholar: St. Mary's Law Review on Race and Social Justice, St. Mary's University School of Law San Antonio Texas, St. Mary's University School of Law, Sarita Kenedy Law Library

Date

2001

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Copyright to The Scholar: St. Mary's Law Review on Race and Social Justice

Relation

The Scholar: St. Mary's Law Review on Race and Social Justice

Format

RFC3778

Language

English, en-US

Type

Text

Identifier

STMU_TheScholarStMarysLRev_v04i1p0113_Holleman

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Text

ALL CHILDREN CAN LEARN:' PROVIDING EQUAL EDUCATIONAL OPPORTUNITIES 2 FOR MIGRANT STUDENTS MICHELLE R. HOLLEMANt

I. Introduction ............................................... II. The Life of Migrant Farm Workers and Their Children .... A. General Demographics ................................ B. Interrupted Schooling ................................. C. Limited English Language Proficiency ................. D. Poverty and the Lack of Health and Nutrition ........ E. Work and Family Responsibilities ..................... F. Parental Involvement ................................. III. The History of the Federal Government in Education and the History of the Migrant Education Program ............ A. Congress' Role in Education ..........................

114 119 119 122 126 127 128 129 131 131

"- St. Mary's University School of Law, J.D., May 2001; The University of Texas at Austin, B.A. Government, May 1996. I would like to dedicate this comment to my mother whose spiritual and financial support I could not live without, and to my father whose patriotism and respect for democracy inspired my sense of justice. I would like to thank Professor Placido Gomez and Professor Roberto Juarez, my editors Norma Ortiz and Debra Luker, and the whole Scholar Team for believing that I had an important message to communicate regarding migrant students and their need for equal educational opportunities. 1. See 20 U.S.C. § 6391 (1994) (supporting educational programs which address the special needs of migrant children); OFFICE OF MIGRANT EDUCATION, U.S. Dnr'T OF
EDUC., HARVESTS OF HOPE, GUIDE TO TIE PROGRAM SERVICES OF THE OFFICE OF MiGRANT EDUCATION (stating the guiding principle of the Improving America's Schools

Act (IASA) of 1994 was the idea that all children can learn), available at http./I www.ed.gov/offices/OESE/MEP/PrelimGuidelbrochure.html (last visited Dec. 4,2001) (on
file with author).

2. See Equal Educational Opportunities Act of 1974, 20 U.S.C. § 1701 (1994) ("[AII children enrolled in public schools are entitled to equal educational opportunity without regard to race, color, sex, or national origin .... "); CYNTHIA M. FAGNONI, GEN.
ACCOUNTING OFFICE, MIGRANT CHILDREN: EDUCATION AND HHS NEED To IMPROVE THE EXCHANGE OF PARTICIPANT INFOPMATION 3 (1999) (providing educational services to

migrant children); Debbie Goldberg, Keeping Up with Students on the Move, WASH. POST, Aug. 6, 1995, at R10 (indicating that transferring migrant student records is just a small part of the challenge facing schools attempting to educate migrant students), available at
1995 WL 9256001.

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B. Legislative History of the Migrant Education

Program .............................................. 132
IV. Migrant Student Record Transfer System (MSRTS) ....... 135 A. Herrera v. Riley: An Effort to Save the MSRTS ...... 137 B. Migrant Education Without the MSRTS ............... 138 V . Proposal .................................................. 140 A. New Generation System (NGS) ....................... 141 B. Congress Must Get Involved .......................... 145 VI. Conclusion ................................................ 147 When I moved here I had no one at all. But you showed up and broke my fall. You believed in me When no one else would. When I was down You told me I could. Thanks for all the things You've done. Thanks to you I just might have finally won.'
I. INTRODUCTION

The United States Supreme Court has determined education is one of the most important functions of state and local governments;4 however, it fails to protect education as a fundamental right under the United States 6 Constitution.' Beginning with Brown v. Board of Education, the Court
-3. Frank Gonzalez, Migrant Students and the Influence of Teachers, IDRA NEWSL. (Intercultural Dev. Research Assoc., San Antonio, Tex.), Feb. 1998, at 8. This poem was written on the last day of school by a tenth grade migrant student at Wynn Public School to his teacher Nina Spencer, thanking her for the help and motivation needed to succeed. See id. 4. See Plyler v. Doe, 457 U.S. 202,222 (1982); Goss v. Lopez, 419 U.S. 565,576 (1975); Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (voicing the Supreme Court's decision that "[t]he American people have always regarded education and acquisition of knowledge as matters of supreme importance which should be diligently promoted"). 5. See, e.g., Papasan v. Allain, 478 U.S. 265, 285 (1986); Plyler, 457 U.S. at 221; Craig v. Boren, 429 U.S. 190,216-17 (1976) (Burger, C.J., dissenting); Goss, 419 U.S. at 586 (Powell, J., dissenting); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (stating education is not a right explicitly protected nor implicitly protected under the Federal Constitution); see also Catherine Ross Fuller, Comment, Access to Education: A Constitttional Right, 51 U. CIN. L. REv. 819, 823-24 (1982) (supporting the argument that education is not a fundamental right by explaining "[t]he Constitution neither explicitly or

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concluded that once a state undertakes to provide children with educational opportunities, such education services must be made available to all children on equal terms. 7 The Court also addressed the effect of denying education to specific groups of children, and how such a denial directly conflicts with the intent of the Equal Protection Clause of the United States Constitution.' Congress adopted the Equal Protection Clause in an effort to end governmental barriers that place insurmountable obstacles on individuals, thereby denying them the right of personal advancement. 9 Chief Justice

Warren found it "doubtful that any child may reasonably be expected to 0 1
succeed in life if he is denied the opportunity of an education."

implicitly protects the right to education"); Roni R. Reed, Note, Education and the State Constitutions: Alternativesfor Suspended and Expelled Students, 81 CORN .LL REV. 582, 589 (1996). 6. 347 U.S. 483 (1954). The landmark case Brown v. Board of Education is a class action suit originating from four different states. See id.Each case sought to allow African-American children to attend nonsegregated public schools within their community. See id. 487. The question before the Court was whether separate schools for the two at races deprived children in the minority group an equal educational opportunity even though they had equal physical facilities as well as other 'tangible' factors being equal. See id. at 493. The Court held "in the field of public education the doctrine of 'separate but equal' has no place" and therefore plaintiffs and all others that are similarly situated had been "deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment." Id. at 495. 7. See Brown, 347 U.S. at 493; see also Lynn H. Frank, Comment, Behind the Schoolhouse Gate: The Acadenzic Rights of American Students, 35 Loy. L REv. 143, 148 (1989) (discussing the Court's use of the Fourteenth Amendment to secure equal educational opportunities for minority students). 8. See U.S. CONST. amend. XIV, § 1 ("No state shall ... deny to any person within its jurisdiction the equal protection of the laws."); see also Plyer,457 U.S. at 221-22 (espousing that education is the means by which people raise themselves to the level of the majority). 9. See Plyler, 457 U.S. at 221-22. In Plyler v. Doe, the question before the Court was whether the state of Texas could deny illegal aliens free public education that the state offered to legal aliens and U.S. citizens or whether this denial of education violated the Equal Protection Clause of the Fourteenth Amendment. See id. at 205. First, the Court held that the Equal Protection Clause states "No State shall 'deny to any person within its jurisdiction the equal protection of the laws."' Id. 210 (emphasis omitted). The Court at interpreted this to include children who had entered the United States illegally. See id. The Court continued by ruling children of illegal aliens cannot be held responsible for the illegal activities of their parents, and therefore there was no substantial state reason to deny these children the equal protection under the law which afforded them the right to a free public education in Texas. See id. at 219-20, 230; Sam Ervin, Jr., Good Schools, Not Forced Busing, CIaARLOrM OnSERVER, July 23, 1981, at Al, reprinted in132 CoNG. REc. 12,186 (1986) (giving the purpose of the Equal Protection Clause). 10. Plyler,457 U.S. at 223 (quoting Brown, 347 U.S. at 493); see also Brown, 347 U.S. at 493 (discussing the importance of education as a function of state and local government).

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Even though the Supreme Court rarely addresses a student's right to an education, the Court has set minimum standards to which our system of public education must adhere.1 Once states offer a public education system, they must allow all children the benefits of such a system, otherwise the denial of this opportunity violates the Equal Protection Clause 2 of the Constitution.' Today, all states are required by their respective constitutions to offer a public education system.' 3 Therefore, it is necessary to ensure that states provide all students an equal opportunity to learn and to receive an adequate education. 4 This challenge places a tremendous burden on states

11. See Goss v. Lopez, 419 U.S. 565, 579 (1975) (establishing that a school cannot suspend a student for ten days without first conducting a due process hearing); Reed, supra note 5, at 589. 12. See Brown, 347 U.S. at 493 (stating that once a state provides an opportunity for an education, it becomes a right). 13. See ALA. CONsT. art. XIV, § 256, amended by ALA. CONST. amend. CXI, § 256; ALASKA CONST. art. VII, § 1; ARuz. CoNsT. art. XI, § 1; ARK. CoNsT. art. XIV, § 1; CAL. CONsT. art. IX, § 1; CoLO. CONsT. art. IX, § 1; CoNNr. CoNsT. art. VIII, § 1; DaL. CoNs. art. X, § 1; FLA. CONST. art. IX, § 1; GA. CONsT. art. VIII, § 1, para. I; HAv. CoNsr. art. X, § 1; IDAHO CONST. art. IX, § 1; ILL. CONsT. art. X, § 1; IND. CONsT. art. VIII, § 1; IowA CoNsr. art. IX, 2nd, § 3; KAN. CoNST. art. VI, § 1; Ky. CoNs'r. § 183; LA. CoNsT. art. VIII, § 1; ME. CONsT. art. VIII, pt. 1, § 1; MD. CONsT. art. VIII, § 1; MASS. CONsT. pt. 2, ch. 5, § 2; MIcH. CONST. art. VIII, § 2; MIiNN. CONsT. art. XIII, § 1; Miss. CoNsr. art. VIII, § 201; Mo. CoNsr. art. IX, § 1(a); MONT. CoNsT. art. X, § 1; NEB. CoNsr. art. VII, § 1; NEV. CONsT. art. II, § 1; N.H. CONST. pt. 2, art. LXXXIII; N.J. CoNsT. art. VIII, § 4(1), (2); N.M. CONsT. art. XII, § 1; N.Y. CoNsr. art. XI, § 1; N.C. CONST. art. IX, § 2; N.D. CoNsT. art. VIII, §§ 1, 2, 4; OHIO CONST. art. VI, § 2; OKLA. CONST. art. XIII, § 1; OR. CONSr. art. VIII, § 3; PA. CONST. art. III, § 14; R.I. CONsT. art. XII, § 1; S.C. CONST. art. XI, § 3; S.D, CoNsT. art. VIII, § 1; TENN. CONsT. art. XI, § 12; TEx. CONST. art. VII, § 1; UTAH CoNsr. art. X, § 1; VT. CoNsT. ch. II, § 68; VA. CoNsT. art. VIII, §§ 1, 2; WAsH. CoNsT. art. IX, § 2; W. VA. CONsT. art. XII, § 1; WIs. CoNsT. art. X, § 3; Wyo. CoNsT. art. VII, §§ 1, 9 (reporting that schools are provided for in every state statute, and many state constitutions include language that children have the right to free education); see also Gregory E. Maggs, Innovation in ConstitutionalLaw: The Right to Education and the Tricks of the Trade, 86 Nw. U. L. REv. 1038, 1042 (1992) (establishing every state provides for an education in its statutes and many establish education as a right under their state constitutions); Kelly Thompson Cochran, Comment, Beyond School Financing: Defining the Constitutional Right to an Adequate Education,78 N.C. L. REv. 399, 408 (2000) (affirming all fifty states' constitutions have provisions for free public education); Peter W. Hahn, Note, Recognizing the Disability: Extending the (Tenuous) Rights of English-Language-Deficient Students in Public Schools, 53 WASH. U. J. URB. & CoNrEMP. L. 271,272 n.9 (1998); Reed, supra note 5, at 582 (arguing that even students who have been suspended or expelled still maintain a right to an education under the respective state's constitution). 14. See Equal Educational Opportunity Act of 1974 § 1701, 20 U.S.C. § 1701 (1994); 20 U.S.C. § 6301 (1994) (stating it is a "policy of the United States that a high-quality education for all individuals... and [the] equal opportunity to obtain that education are a societal good"); Brown, 347 U.S. at 493 (establishing that once a state provides its children a free public education, it must be provided to all on equal terms).

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English proficiency.' 5 This comment focuses on one of these special tion.'
16

as they try to educate special student populations with particular educational needs, such as learning disabilities, emotional disorders, or limited populations-migrant students. Many educators believe "migrant students are a unique at-risk popula-

Educators hold this belief because migrant families relocate as a

result of temporary employment in agriculture or fishing, creating frequent educational interruptions for their children. 7 Furthermore, migrant students are an isolated group due to their transient status, language barriers, and low socioeconomic situation. These obstacles make providing educational services to these students even more challenging. 8 Since the highest court in this nation has placed an extreme importance on education, 19 it is imperative for states to provide equal educational opportunities to migrant students.

15. See generally Holly A. Currier, The ADA Reasonable Accommodations Require-

ment and the Development of University Services Policies: Helping or HinderingStudents with Learning Disabilities?,30 U. BALT. L.F. 42, 51-52 (2001) (exploring the applicability of the reasonable accommodations requirement of the Americans with Disabilities Act as it applies to students with learning disabilities at the university level); Theresa Glennon,
DisablingAmbiguities: Confronting Barriersto the Education of Students with Emotional Disabilities,60 TENN. L. REv. 295,296-97 (1993) (examining the inability of the Individuals

with Disabilities Education Act to meet the needs of emotionally disturbed children); Dale S. Freeman, Comment, S61o Quiero la Misma Oportunidad. Developing a Model of AppropriateEducation for Middle Sdzool Inmigrants, 10 LA RAzA LJ.691, 696-707 (1998) (describing the problems of middle school immigrant education, the role of bilingual education, the movement to eliminate it, and a model of immigrant education); Hahn, supra note 13 (proposing federal legislation to equalize educational opportunities for Englishlanguage-deficient students).
16. Linda Ashton, Tag-Team Education: Washington, Teras Cooperate to Teach MigrantStudents, CoLUmBiAN, Apr. 30, 1999, at B9 ("As a group, these mobile children are

very much at risk for failure."), availableat 1999 WL 6513261; Basmat Parsad et al., Title MigrantEducation ProgramSummier-Term Projects: 1998, EDuc. STAT. Q., Spring 2000, at 70, available at http'J/nces.ed.gov/pubs2000/2000061.pdf (last visited Dec. 7, 2001); Abelardo Villarreal & Anita Tijerina Revilla, Creative EducationalOpportutities for Migrant

Students, IDRA NEwsL (Intercultural Dev. Research Assoc., San Antonio, Tex.), Feb. 1998, at 1 (asserting migrant students are "perhaps the most educationally disenfranchised group of students in our schooling system"). 17. See 20 U.S.C. § 6399 (1994) (defining a migratory child as one who in the preceding thirty-six months has moved to a different school district, moved to a different administrative area in a state with only one school district, or moved twenty miles or more for fishing); Parsad et al., supra note 16.
18. See 20 U.S.C. § 6391 (1994); Anneka L. Kindler, Educationof Migrant Children in the United States, DMncrloNs INLANGUAGE & EDUC. (Nat'l Clearinghouse of Bilingual

Educ., D.C.), Fall 1995, at 1, available at httpJhwvw.ncbe.gwvu.edu/ncbepubsldirections/ 08.htm (last visited Dec. 20, 2001); Parsad et al., supra note 16. 19. See Ambach v. Norwick, 441 U.S. 68,76 (1979) (holding education as the "primary vehicle for transmitting 'the values on which our society rests"'); Abington Sch. Dist. v.

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This comment examines the educational services currently being provided to the sub-population of migrant students, analyzes why the legal mandate of providing equal educational opportunities is not being met, and proposes a workable solution that states can implement in the vital quest to achieve the Court's goal of providing all children an equal education.2 °

Part II provides a historical background on the life of migrant farm
workers and their children, demonstrating how this unique lifestyle creates special educational needs for the migrant student. Part III discusses Congress' historical role in education and the legislative history of the Migrant Education Program (MEP). 21 Part III also examines the eligibility qualifications for the MEP, state funding allocations, and local and state accountability under the MEP. Part IV examines how the Migrant Student Records Transfer System (MSRTS)2 z originated, evolved over approximately thirty years, and how it was eventually dismantled. Part IV also analyzes how the MEP fails to meet the needs of migrant students without a national database, such as the MSRTS, to track and disseminate student information.

Schempp, 374 U.S. 203, 230 (1963) (Brennan, J., concurring) (recognizing "the public schools as a most vital civic institution for the preservation of a democratic system of government"); Meyer v. Nebraska, 262 U.S. 390, 400 (1923) ("The American people have always regarded education and [the] acquisition of knowledge as matters of supreme importance .... "). See generally Brown v. Bd. of Educ., 347 U.S. 483 (1954). 20. See generally Brown, 347 U.S. at 493 ("[T]he opportunity of an education.,., where the state has undertaken to provide it, is a right which must be made available to all on equal terms."). 21. See 20 U.S.C. § 6391 (1994). The Migrant Education Program was established by Congress as an attempt to provide migrant students with the opportunity to overcome educational disruptions such as cultural barriers, social isolation, and health-related problems. See id. § 6391(4). The MEP also seeks to ensure migratory children are given the same opportunity to meet states' academic standards that all children are expected to meet. See id. § 6391(3); Herrera v. Riley, 886 F. Supp. 45, 47 (D.D.C. 1995). 22. The Migrant Student Record Transfer System (MSRTS) was a computer program based in Little Rock, Arkansas that was used as a central repository for academic and medical records of migrant students. See Patricia Cahape, The Migrant Student Record Transfer System (MSRTS): An Update, ERIC DIGEST (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Mar. 1998, at 1, available at http:llwww.ed.gov/databases/
ERICDigests/ed357909.html (last visited Feb. 2, 2002). Once a migrant student moved from one part of the country to another, the MSRTS was utilized to transfer the migrant student's records to the new school. See id.; Tim Collie, Advocates for Migrants Gather: 3Day Conference Is Held to See How to Improve Education, TAMPA TRw., Oct. 27, 1995, available at 1995 WL 13831066; TWila Decker, ComputerKeeps Track of Migrant Students, ST. PETERSBURG TIMES, Nov. 27, 1989, available at 1989 WL 6819511; Andrew Mollison, Panel: System to Help Educate Migrant Students Flawed, ATLANTA J. & CONST., Aug. 30, 1991, available at 1991 WL 7814926.

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Part V proposes a Congressionally-mandated national database to transfer student records be implemented to serve America's migrant students. Helping migrant students receive educational services that address their special needs will ensure these at-risk students have a chance to receive the same academic opportunities as non-migrant students.5 Such a result would give meaning to and effectuate the Supreme Court's intent of educational opportunities being available to all children on equal terms.2 4

1B.
A.

Tim LIFE OF

MIGRANT FARM WORKERS AND THEIR CHILDREN

General Demographics

A migrant student is one whose family migrates along established geographic routes to find work consisting mostly of harvesting seasonal agricultural crops? 5 Studies demonstrate that traditionally migrant families travel three significant routes across America: the East Coast Stream, the Mid-Continent Stream, and the West Coast Stream (see Figure 1).26 For
23. See 20 U.S.C. § 6391 (1994); see also Student Turnover Repeated Transfersfrom School to School Impede Learning, DALLAS MOmNING NEWS, Apr. 25,2000, at 12A (developing the idea that high student mobility lowers student achievement). See generally 20 U.S.C. § 6301 (1994) (stating in subsection (c)(1) that "[a]ll children can master challenging content and complex problem-solving skills ... including low-achieving children ... when expectations are high and all children are given the opportunity to learn challenging material"); Len Biernat & Dr. Christine Jax, Limiting Mobility and Improving Student Achievement, 23 HAmuI L. REV. 1, 8 (1999) (discussing how mobility compounds challenges to academic achievement, and how special MEP funds might not be made available to the mobile student). 24. See Brown, 347 U.S. at 493; see also Frank, supra note 7, at 148. 25. See 20 U.S.C. § 6399(2) (1994); Mary Lou Fulton, Making a Difference: El Rancho District Scores 'Little Victories' with Migrant Pupils Who Attend School on Saturdays, L.A. TIMiEs, Jan. 28, 1988, at 1, available at 1988 WL 2304616; Kindler, supra note 18, at 2; Susan C. Morse, Unschooled Migrant Youth: Characteristics and Strategies to Serve Them, ERIC DIGESr (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Mar. 1997, at 1, available at http'Jwwv.ed.gov/databaseslERIC.-Digestsled405158.html (last ,isited Feb. 2, 2002). 26. See CHARIES BOWSHER, GEN. ACCOUNTING OFFICE, ANALYSIS OF MIGRATION CHARACTERISTICS OF CIILDREN SERVED UNDER THE MIGRANT EDUCATION PROGRAM 3 (1983); JOSEPH 0. PREwrrr DiAz ET Al., THE EFfEcTs OF MIGRATION ON CHILDREN: AN ETHNOGRAPIUC STUDY 8, 8 map 1 (1989); FAGNONI, supra note 2, at 5 fig.2; JOH, D. PERRY, U.S. DEP'T OF EDUC., MIGRANT EDUCATION: THIRTY YEARS OF SuCCESS, nur CHALLENGES REMAIN 9 (1997); Nancy Feyl Chavkin, Family Lives and ParentalInvolvement in Migrant Students' Education,ERIC DIGEST (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), May 1991, at 1, available at http://wvv.ed.gov/databasesl ERICDigests/ed335174.html (last visited Feb. 2,2002); Kindler, supra note 18, at 2. This migration is illustrated by the demand for migrant workers: A quarter of U.S. crops must be picked by hand. Without migrant labor, the price of California strawberries, Florida citrus and Vashington apples ... would soar. Labor

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example, migrant students from Texas usually travel with their families along the Mid-Continent stream, which begins in South Texas and moves north into the Mid-Western states.27 As a result, a migrant student can begin the academic year at a school in South Texas and finish the year at a school in Minnesota.2 8
FIGuRE

1: TRADITIONAL MIGRATION RouTEs ACRoss AMERICA2 9

To further complicate the attainment of education, migrant worker families can live in as many as four different places in one year.3 In 1993, sixty-seven percent of crop-worker families lived in two to three
requirements for crops can be enormous: In Washington state, 52,000 are needed to pick apples in September and October. In Florida, about 60,000 are used in citrus orchards, and in California, 55,000 harvest table grapes and 20,000 pick strawberries. While in Michigan, 50,000 harvest apples, cherries, and sugar beets. Mark Potok, The Migrant Reality: Interdependence,USA TODAY, Sept. 30, 1996, at 19A, available at 1996 WL 2070270. 27. See Chavkin, supra note 26, at 1; Kindler, supra note 18, at 2 (discussing the geographical distribution of migrant workers); see also FAGNONI, supra note 2, at 4 (identifying traditional travel patterns of migrant workers). 28. See TEx. EDuc. AGENCY, THE TEXAs MANUAL FOR THE IDENTIFICATION AND RECRUITMENT OF MIGRANT STUDENTS 3 (1991); FAGNONI, supra note 2, at 8; Kindler, supra note 18, at 2 (discussing the geographical distribution of migrant workers). 29. PREwrrr DIAZ ET AL., supra note 26, at 8 map 1. Figure reprinted with permission from the Pennsylvania Division of Migrant Education. 30. See FAGNONI, supra note 2, at 4 (stating that eleven percent of migrant families lived in four locations per year); Marie Arana-Ward, For Children of the Fields, Education

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locations, while only twenty-two percent lived in one location.31 However, traditional migration patterns have been changing since the 1980s.' Instead of following crops as the seasons change, today's families are moving from a home base directly to one destination where they work for a season before returning home again (see Figure 2)3
FIGuRE 2:
MIGRATION PATrERN FROM WESLACO INDEPENDENT

SCHOOL DISTRICT TO ONE DESTINATION AND BACKe
Count (by state) of Weslaco ISD Migrant Students (total ldentfled) For 2000.2001 Regular School Year

VESLACO INDEPENDENTSCHOOL DISTRICT

IGRAND TOTAL = 7,358* 1

Is Elusive; Battling the Odds, ProgramSeeks to Provide Classes,Continuity for Young Migrants, WASH. PosT, Aug. 4, 1997, at Al, available at 1997 WL 12879688. 31. See FAGNONI, supra note 2, at 4; see also Fulton, supra note 25 ("On the national average, children of migrant workers move three times a year between kindergarten and sixth grade ....). 32. See FAGNON, supra note 2, at 5; Potok, supra note 26. 33. See FAGNONI, supra note 2, at 6 fig.3 (describing how children in Weslaco Independent School District traveled from South Texas to schools in a minimum of 40 different states); Pi~wrrr DLz Er AL., supra note 26, at 9 map 2; Ashton, supra note 16; Fulton, supra note 25; Potok, supra note 26. 34. E-mail from Linda Taormina, Federal Programs Specialist, Migrant Education, Weslaco Independent School District, to The Scholar (Feb. 8,2002,21:38:48 GMT) (on file

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In 1990, there were approximately 597,000 migrant students making the yearly relocation. 35 A study projected that by 2000, the number of migrant students increased by thirty-two percent to include an estimated 790,000 migrant students. 36 The need for a student record tracking system is clearly illustrated by the fact that in 1997, 22,225 schools across the nation enrolled migrant students during either the regular school year or the summer term.3 7 Migrant students are arguably the most disadvantaged group of students in today's education system.38 Migrant students face many challenges that non-migrant students do not, such as interrupted schooling,

limited English proficiency, poverty, lack of health and nutrition, pressures from work and family responsibilities, and lack of parental involvement in their education.3 9 All of these challenges lead to the inability of migrant students to succeed in school. B. Interrupted Schooling The relocation of migrant students from one school to another during

the same academic year causes many problems and disrupts their educawith author); see also PR.wrrr DIAz Er AL., supra note 26, at 9 map 2. Figure reprinted with permission from Weslaco Independent School District. 35. See PERRy, supra note 26, at 5; Debbie Goldberg, Migrant Children in the Classroom, WASH. POST, Aug. 6, 1995, at R10 (acknowledging there are approximately 580,000 migrant students receiving benefits from the Migrant Education Program), available at 1995 WL 9256000. But see Joel Williams, Migrants' School Woes Discussed: Panelists Cite Social, Government Obstacles, DALLAS MORNING NEWS, Dec. 4, 1990, at 24A (stating an estimated 680,000 students migrate), availableat 1990 WL 7260102. 36. PERRY, supra note 26, at 5-6 (explaining that the increase in migrant students was restricted to a small part of the United States, because in "1996-1997, three states, California, Texas and Florida, had 53 percent of the nation's full time equivalent students (FTEs)"). See generally Fulton, supra note 25 ("[L]ess than 10% of the nation's 750,000 migrant children finish high school .... "). 37. See ALLISON HENDERSON, U.S. DEP'T OF EDUC., DATABASE OF ScHooLs ENROLLING MIGRANT CHILDREN: AN OVERVIEW 1 (1998) (espousing the need for a nationwide database of student records); see also James Pinkerton, More Children of Migrant Workers Face the Annual Challenge of Balancing School and Working Up North/Sttdents on the Move, Hous. CHRON., Jan. 14, 2001, at 1 (quoting Patricia Meyertholen, a Texas Education Agency program director with the Austin migrant division, as saying, "[w]ithout a nationwide database, I don't think there is any effective, accurate way of measuring [academic progress]"), available at 2001 WL 2992517. 38. See PERRY, supra note 26, at 2; Williams, supranote 35 ("Children of migrant farm workers are a 'minority within a minority' .... ").
39. See 20 U.S.C. § 6391(4) (1994); EDGAR LEON, MICHIGAN DEP'T OF EDUC., CHAL
SOLUTIONS FOR EDUCATING MIGRANT STUDENTS 8 (1996); Arana-Ward, supra note 30 (stating migrant students are "among the poorest children in the nation"); Fulton, supra note 25; Goldberg, supra note 35. LENGES AND

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tion.4° Curriculum incompatibility4 ' is one such problem. The migrant student is burdened with adjusting to each state's different standard of knowledge, so while New Mexico requires the teaching of its own history,42 Texas requires the student to "Remember the Alamo! ' 4 3 This differing standard can be very stressful and even overwhelming for the migrant student, which may result in obstacles to learning."I Another challenge of interrupted schooling is that the students often miss weeks of instruction at a time due to the traveling caused by seasonal work.4" Families sometimes leave six weeks before school is out in the Spring and return home six weeks after school has started the next year.4 6 In the meantime, the migrant students do not enroll in another

40. See generallyAshton, supra note 16 ("[I]t was not uncommon for migrant students to attend school only six months out of the year. .. ."); Karen Hastings, Challenging Courses: School Year Often Cut Short for Migrants, DALLAS MoRnN NEws, May 28, 2000, at 41A (describing the social and educational disruptions of being a migrant student by relating one migrant student's experience---"While classmates at Harlingen High School South sign yearbooks, 17-year-old Maria Guadalupe Garcia sleeps off a long day's work in the onion fields near Las Cruces, N.M."), available at 2000 WL 22755440; Karlayne R. Parker, Seasonal Learning, TAMPA TRin., May 14, 2000, at I (quoting the head of the University of South Florida's Center for the Study of Migrant Education as saying, "The biggest challenge for migrants is educational continuity"), available at 2000 WL 5582032. 41. See Biernat & Jax, supra note 23, at 8 (stating that variations in school curricula is a significant problem for new students); Ashton, supra note 16; Mike Clary, For Migrants' Educations,A New Degree of Stability, Innovative Dade County School Program Aims to Follow Students as They Travel with Parents in Seard of Seasonal Work, LA. TIMEs, Nov. 27, 1997, at A5 (stating that credits do not transfer from one school to another, causing the migrant student to fall further behind), available at 1997 WL 14004621; Fulton, supra note 25; Juan R. Palomo, A Child of Migrants Travels front Texas to Illinois and Finds That Experts Are Right Today, Computers Can Make All the Difference in the World, USA WEEKEND, Aug. 17, 1997, at 16, available at 1997 WL 7698901; Pinkerton, supra note 37. 42. See Hastings,supra note 40. 43. See id. 44. See 20 U.S.C. § 6391(1) (1994) (stating one purpose of the MEP is to "help reduce the educational disruptions and other problems that result from repeated moves"); Biernat & Jax, supra note 23, at 8 (explaining how the concept of local control prevents a centralized curriculum, thereby compounding the academic challenges of students with high mobility); Clary, supra note 41; Migrant Educational Panel Criticalof Federal Rules, Hous. CHRON., Dec. 4, 1990, at 34 ("[S]tudents often find themselves shifted from grade to grade as they move between states and school districts with differing sets of requirements.. . available at 1990 WL 2976321; Palomo, supra note 41. 45. See Goldberg, supra note 35; Hastings, supra note 40; Michelle Jones, Earl)' Return of Migrants Strains Social Services, ST.PErERSBURG TiMEs, Aug. 8,1988, at 1B,available at 1988 WL 6521198; Pinkerton, supra note 37; U. of Texas at Austin Devises WebBased Math Coursefor Children of Migrants, CHRON. HIGHER EDUC., Apr. 14, 2000, at A57, available at 2000 WL 8881559. 46. See Goldberg, supra note 35; Parker, supra note 40; Pinkerton, supra note 37; U. of Texas at Austin Devises Web-Based Math Course for Children of Migrants,supra note 45.

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This interruption of the children's education creates gaps in their knowledge and causes them to be educationally delayed compared to other children. 48 Accordingly, due to their constant relocation, more than one-third of migrant students are at least one grade behind their age-appropriate level of education.4 9 rupted schooling.5" Reading achievement test scores in California reported a twenty point drop "for students who moved three or more times" per year as compared to "students who did not move."5 1 The travesty of interrupted schooling is even more pronounced in Texas, where migrant students do worse than any other student population on the tenth grade "Exit Level Texas Assessment of Academic Skills" (TAAS) test.5

Poor results on standardized tests illustrate the problems with inter-

47. See Ashton, supra note 16; Clary, supra note 41; Hastings, supra note 40; Parker, supra note 40. 48. See Ashton, supra note 16; Clary, supra note 41; Hastings, supra note 40; Parker, supra note 40 (detailing how one migrant student who should be in the third grade is learning at a kindergarten level). 49. See NAT'L COMM'N ON MIGRANT EDUC., INVISIBLE CHILDREN: A PORTRAIT OF MIGRANT EDUCATION IN THE UNITED STATES 30 (1992); Arana-Ward, supra note 30 ("By second grade, half of them [migrant students] are more than one year older than the average public school child in their grade."); Parker, supra note 40; see also Biernat & Jax, supra note 23, at 6 (stating that the Michigan Department of Education found migrant students to be three to four years behind academically). 50. See generally Placido Gomez et al., The Texas Assessment of Academic Skills Exit Test-"Driverof Equity" or "icket to Nowhere?", 2 SCHOLAR 187, 187 (2000) (affirming that in Texas standardized assessment tests define educational success); see also Del Stover, Schools Grapple with High Student Mobility Rates, SCHOOL BOARD NEwS (Nat'l Sch. Bd. Assoc., Va.), June 13, 2000, at 1, http://www.nsba.org/sbn/00-jun/061300-2.htm (last visited Dec. 19, 2001). See generally Denise C. Perritt, Can Technology Increase Course Opportunitiesfor Migrant Students?, 81 NASSP BULLETIN (Nat'l Assoc. Secondary Sch. Principals, Va.) 587, Mar. 1, 1997, at 15 (expressing that low achievement is prevalent among migrant students), availableat 1997 WL 24931246. 51. Stover, supra note 50. 52. The Texas Assessment of Academic Skills (TAAS) test measures statewide curriculums in reading, writing, math, and most recently science and social studies. See Student Assessment Div., Tex. Educ. Agency, About the Student Assessment Program, http:ll www.tea.state.tx.us/student.assessment/about/overview.html (last visited Jan. 30, 2002). Reading and math are tested from third to eighth grade as well as at the exit level exam, which is administered during tenth grade. See id. Writing is tested in fourth, eighth, and the exit level, while science and social studies are tested during eighth grade. See id. Students are required to pass the exit level TAAS test as a prerequisite to graduating from high school. See id. For a more in depth discussion of the TAAS test, see Blakely Latham Fernandez, Comment, TAAS and GI Forum v. Texas Education Agency: A CriticalAnalysis and Proposalfor Redressing Problems with the Standardized Testing in Texas, 33 ST.
MARY'S

L.J. 143, 148-50 (2001).

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Migrant students score a mere forty-four percent passage rate on all TAAS tests taken.53 Yet another result of interrupted schooling is the increased dropout rate among migrant students. 54 Migrant student drop out rates are the

highest of any student sub-population in the country.55 Statistics show
that "five times as many migrant students are enrolled in the second grade as in the twelfth grade, and migrant educators place the dropout

rate for migrant students anywhere from fifty to ninety percent."56 Due
to the nomadic nature of their lives, it is difficult for migrant students to

accrue enough academic credits to remain at the appropriate grade

53. See Villarreal & Revilla, supra note 16, at 2; see also Mike Jackson, Patchwork
Learning: Families Who Move with the Seasons Create Challengesfor Dallas Educators, DALLAS MORnNG NEws, Apr. 16,2000, at 1A ("'[M]obile' students score an average of 21

points lower per subject than other students on the standardized Texas Assessment of Academic Skills tests .... "), available at 2000 WL 17631198. 54. See LEON, supra note 39, at 6; see also Fulton, supra note 25; Perritt, supra note 50; Pinkerton, supra note 37; Megan K Stack, We Have to Bring Ourselves Up/Ieary from Working in NorthernFields, MigrantStudents Head South for School, Hous. CHROX., Dec.

10, 2000, at 6 (quoting the Cesar E. Chavez Institute for Public Policy at San Francisco State University that "[l]ess than thirty percent of U.S. children of migrant farmers graduate from high school"), availableat 2000 WL 24533445. See generally U. of Tras atAustin
Devises Web-Based Math Course for Children of Migrants,supra note 45 (explaining the

process migrant children must face to continue their education).
55. See Lori Nessel & Kevin Ryan, Migrant Farnworkers,Homeless and Runaway Youth. Challengingthe Barriersto hIclusion, 13 L v & INEO. 99, 117 (1994); High School Dropouts, by Race-Ethnicity and Recency of Migration, INDICArOR OF micn Momf (Nat'l

Center for Educ. Stat., D.C.), June 2000, at 1 (stating Hispanics attain lower levels of education and drop out of school at a higher rate than non-Hispanics), available at http'./ nces.ed.gov/pubs2000/2000009.pdf (last visited Feb. 2, 2002); see also Arana-Ward, supra note 30 (indicating that no population in the country has a lower graduation rate than
migrant students); Bruce D. Butterfield, The New Harvest of Shame: For Farm Workers' Children, Cycle of Poverty and Work Unbroken, BOSTON GLOiE, Apr. 26, 1990, at 1 (as-

serting that the dropout rate for migrant students in Florida is approximately eighty percent and is almost ninety percent in Texas), availableat 1990 WL 5816852; Parker, supra note 40 (stating over fifty percent of migrant students drop out, which is two times the national average); Pinkerton, supra note 37 (declaring that barely half of all migrants can
get a high school diploma); Anne Salerno, Migrant Students Who Leave School Early:

Strategies for Retrieval, ERIC DIGEsT (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), May 1991, available at http'lvww.ed.gov/databasesERC-Digestsl ed335179.html (last visited Dec. 20, 2001). 56. Chavkin, supra note 26, at 2; see also Hastings,supra note 40 (stating that in Texas, as well as nationally, just half of migrant students finish high school).

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level.57 This typically leads to frustration which results in the student giving up and dropping out.5 8

C. Limited English Language Proficiency In addition to interrupted schooling, a contributing factor to the high 59 migrant student dropout rate is the language barrier in the classroom. For seventy-five percent of migrant students, English is not their first language." In fact, eighty percent of migrant students are identified as Hispanic, 6 and ninety percent speak another language besides English.6"

This lack of fluency in English impedes classroom instruction for approximately forty percent of migrant students; additionally, over forty
percent of migrant students are estimated to be reading below the thirtyfifth percentile.6 3 In light of this statistical data, it is clear that limited English language proficiency is very problematic; it is difficult for children to receive equal educational opportunities if they are not able to understand their teach-

57. See Butterfield, supra note 55. One migrant student who left school by the age of fifteen said, "By the time we get here, the other kids are already ahead of us. The material is different. We are always behind. We just can't keep up." Id.; see also Chris Coats, University of Texas at Austin: University of Texas Recognizes Programfor Migrant Students, DAILY TEXAN, Mar. 28, 2000 ("The Continuing and Extended Education Migrant Student Graduation Enhancement Program allows about 1,000 [migrant] students a year ... take classes .... ."), available at 2000 WL 17589877; Palomo, supra note 41 (claiming to that "high-tech" tutelage could solve the problems of poor education for migrant students). 58. See Kindler, supra note 18, at 4; Parker, supra note 40 (recounting some leave because of the frustration and some leave in order to contribute to the family's income); see also Coats, supra note 57 (claiming that without these programs, migrant students probably would not graduate); U. of Texas at Austin Devises Web-Based Math Coursefor Children of Migrants,supra note 45. 59. See Joan Gaustad, Identifying PotentialDropouts, ERIC DIGEsr (ERIC Clearinghouse on Educ. Mgmt., Eugene, Or.), Nov. 1991, at 1, available at http://www.ed.govl databases/ERIC_.Digests/ed339092.html (last visited Dec. 20, 2001). Students coming from a low socioeconomic status and from non-English language family backgrounds are more likely to drop out of school. See id.; see also Goldberg, supra note 35 (claiming that migrant students move so often that their understanding of English falters, which causes them to be enrolled in courses that concentrate on teaching the English language). 60. LEoN, supra note 39, at 8. 61. See Helping Migrant, Neglected, and Delinquent Children Succeed in Schook Hearing Before the House Comm. on Educ. and the Workforce, 106th Cong. 1st Sess. 4 (1999) (statement of Francisco Garcia, Dir., Office of Migrant Education, U.S. Dep't of Educ.); Kindler, supra note 18, at 4. 62. See PERRY, supra note 26, at 3; Kindler, supra note 18, at 4 (stating that ninety percent of migrant students do not speak English at home). 63. NAT'L COMM'N ON MiGRATr EDUC., supra note 49, at 30.

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ers or the content of the information being taught due to difficulties in language comprehensionf '
D. Poverty and the Lack of Health and Nutrition

Migrant students are also some of the poorest students in our public schools. Reports have shown the average income for a migrant farm worker ranging from $5,000 to $6,500 annually."5 A national profile of migrant students completed in 1992 found that eighty-four percent qualified for the free or reduced lunch program and over fifty percent qualified to receive Title I funds, which are used in schools with low-income families. 67

Partly because of their low socio-economic status, as compared to the general population, migrant children and their families are significantly poorer in health.68 Studies have shown the health of migrant children is poorer than the health of children in the general population; 69 one study indicates that "[t]he infant mortality rate among migrants is 125 percent
64. See Freeman, supra note 15, at 692. Children struggling with the language barrier

"will always be a step behind." Id. See generally Hahn, supra note 13 (arguing that the
standard of accommodations applied); U. of Texas at Austin Devises Web-Based Math Course for Children of Migrants,supra note 45. 65. See LEON, supra note 39, at 13; Butterfield, supra note 55; Mark McDonald, Pablo and Zulema, American Dreamers: One Migrant Family Sees the Future,and It Isn't Working/lIn the Fields Series: Chasing the Harvest, DALLAS MORING NEws, July 7,1991, at FI, available at 1991 WL 4723592. Compare Philip Martin, Migrant Farm Workers and Their Children, ERIC DIGEST (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Nov. 1994, at 2, available at http:/wwwv.ed.gov/databasestERICDigestsLed376997.html (last visited Feb. 2, 2002), with Chavkin, supra note 26, at 2. "he family's S9,000 income does not come close to meeting the federal poverty level of $26,857 for a family of nine. See McDonald, supra; see also Melissa S. Monroe, Moving Toward a Better Education, CounselorFosters Migrant Students' Dreams,SAN ANTONIO EXi'RESS-NEws, Feb. 9,2000, at H2 (stating parents fed five children on a $300 monthly income), availableat 2000 WL 27450127; Parker, supra note 40 (quoting the U.S. Commission on Agricultural Farmworkers that two-parent migrant families have an annual salary of less than S10,000); Jeremy Schwartz, Migrant Kids Face Daunting Obstacles/SocialIssues: Life on the Move Keeps Success out of Readz for Many Students, OR AGE CouNrv REG., Mar. 7, 1999, at A35, available at 1999 WL 4288302.

66. See NAT'L COMM'N ON

MIrGRr EDUC.,

supra note 49, at 30; Nutrition Programs

for Children, ERIC DiGesr (ERIC Clearinghouse on Elementary and Early Childhood Educ., Ill.), June 1994, at 1, available at httplJ/www.ed.gov/databasesERICDigests/ ed369580.html (last visited Feb. 2, 2002). 67. See Elementary and Secondary Education Act of 1965, tit. I, pt. A, 20 U.S.C. § 6315 (1994); PERRY, supra note 26, at 7. 68. See Gary Huang, Health ProblemsAmong Migrant Farmworkers' Children in the U.S., ERIC DIGEsr (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Jan. 1993, at 1, available at httpJ/wwwv.ed.gov/databaseslERIC-Digests/ed357907.html (last visited Feb. 2, 2002). 69. See LEON, supra note 39, at 12; PERRY, supra note 26, at 8; Huang, supra note 68.

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higher than the general population, and the life expectancy of migrant 70 farm workers is 49 in contrast to the nation's average of 75 years."1 The decrease in life expectancy is linked to living in poverty and subsequent malnutrition.7 '

Migrant children suffer from calcium and iron deficiencies. 72 Furthermore, migrant children are more likely to have respiratory disease para-

sitic conditions and skin infections. 73 These children also face high-risk

occupation-related health problems from working in the agricultural 74 fields as a result of pesticide poisoning and farm injuries. E. Work and Family Responsibilities

Not only do the previously discussed problems increase academic challenges for migrant students, but so do the pressures of work and family. In migrant families, children are often expected to either work in the fields or take care of their younger siblings.75 While in the fields, children of migrant workers face challenging climates ranging from extreme heat to freezing temperatures.7 6 Rosa Maria Rodriguez remembers her childhood in the fields. 7 7 She would begin the day at five in the morning helping her mother prepare tortillas before spending ten hours in the fields picking cucumbers, tomatoes, or strawberries.78 She also remembers the injustice of picking toma-

70. Huang, supra note 68 (citing statistics from National Migrant Resources Programs 1990). 71. See id. 72. See id. 73. See LEON, supra note 39, at 8; J. SHOMAND, FULL FIELDS, EMPTY CUPIBOARDS: THE NUTRmONAL STATUS OF MIGRANT FARMWORKERS IN AMERICA (1989). 74. See Huang, supra note 68; see also Michael A. Pignatella, Note, The Recurring Nightmare of Child Labor Abuse-Causes and Sohtions for the 90s, 15 B.C. TnIRD WORLD LJ. 171, 189 (1995) (the death risk for child laborers is "the highest for any occupation in the nation"); McDonald, supra note 65 ("They've vomited from breathing pesticides."). 75. See Arana-Ward, supra note 30 (describing how Roxana Machado, a migrant student, fell behind in her studies because she had to take care of her newborn brother instead of going to school); Kindler, supra note 18, at 5; McDonald, supra note 65; Parker, supra note 40; Pinkerton, supra note 37 (stating that some children had to work in the fields during the day and attend classes at night); Schwartz, supra note 65. 76. See Rosa Maria Rodriguez, HarvestingSuccess for Migrant Students, 19 NEA To. DAY (Nat'l Educ. Ass'n, Washington, D.C.) 2, Oct. 2000, at 7, available at 2000 WL 7893253. 77. See id. 78. See id.

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toes while crop dusters flew overhead spraying pesticides over the crops and the workers.7 9 A corollary phenomenon to the expectation of children working in the fields is that migrant students are often put in the unbearable situation of choosing between their needs and the needs of their families.' Cristela, a migrant student, must choose either to stay in North Dakota sorting potatoes to earn money for school clothes, or return home to Texas before her family so she can catch up on school work.8 Cristela expressed her dilemma, "If I work, I help out my family. If I go to school, I ' help out myself... I am still thinking about it." The decision to support the family often has tragic results." Instead of Algebra, seventeen-year-old Maria Guadalupe Garcia practices simple math: "Two buckets of clipped onions equals a burlap bag. A few hundred burlap bags equals her share of the family's modest annual income."' With the pressures of work and family, it is no wonder children of migrant farmworkers are likely to have difficulties in school or drop out altogether. F. ParentalInvolvement Parental involvement in migrant families plays a significant role in shaping the character of migrant students. Besides fostering a sense of work ethic and stressing the importance of duty to one's family, parental involvement also affects the student's education. Parents of migrant students, however, rarely become involved in the education of their children. Migrant parents view schools as institutions of authority.s It is the school that knows what is best for their child; therefore, parents often look to the educational expertise of the school without becoming too involved.86 Most parents of migrant students believe it is the responsibility of the school system to educate their children. 7 Therefore, many parents
79. See id. (wondering why she received twenty-five cents for a bucket of tomatoes when they sold five for a dollar at the grocery store). 80. See Pinkerton, supra note 37. The defining moment of Geronimo M. Rodriguez Jr.'s life was when he told his parents that he wanted to leave the Northwest and return to the Rio Grande Valley in time for the start of school. See id. 81. See Hastings, supra note 40. 82. Id. 83. See id. 84. Id. 85. See PERRY, supra note 26, at 8; PRwrrr DiAZ ET ALt, supra note 26, at 77. 86. See Alicia Salinas Sosa, Involving Hispanic Parents in Improving EducationalOpportunitiesfor.TheirChildren, in CHmLDREN OF LA FRONTERA: BINATIONAL EFrowrrs TO SERVE MEXICAN MIGRANT AND IMMIGRANT STUDENTS 341, 343 (Judith Le Blanc Flores ed., 1996); see also PERRY, supra note 26, at 8; PRnwrrr DIAz E-r At., supra note 26, at 77. 87. See Chavkin, supra note 26, at 2; Kindler, supra note 18, at 1.

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their child will only interfere and ultimately hinder the child's learning.88

distance themselves from the system for fear that any attempt to help

Mexican-American parents, who comprise the majority of migrants, believe it is their job to instill respect and proper behavior in their children, while it is the role of the school to instill knowledge.8 9 Furthermore, parents of migrant students are themselves not well-educated, with only forty percent having completed eighth grade. 90 This often results in an inability on the part of the parent to understand the

problems their children may face at school and hinders their ability to
help with schoolwork. 9 Therefore, although they may have the desire to be involved and to help their children with schoolwork, migrant parents are often unable to do so.92 Compounding the cultural differences between the views held about the role of parents and schools is the unfortunate history of many migrant parents having their own negative experiences with the educational system.9 3 Like their children, these parents have faced discrimination and humiliation for speaking Spanish. 94 Such negative experiences often further discourage parental participation in their children's educational 95
process.

The language barrier causes yet another hindrance to parental involvement because many migrant workers either do not speak English or lack adequate command of the language. 96 This lack of proficiency in the En-

88. See Chavkin, supra note 26, at 2; Carmen Simich-Dudgeon, Parent Involvement and the Education of Limited-English-ProficientStudents, ERIC DIGEST (ERIC Clearinghouse on Language and Linguistics, D.C.), Dec. 1986, at 1, availableat http://www.ed.gov/ databases/ERICDigests/ed279205.html (last visited Feb. 2, 2002); see also Nancy Feyl Chavkin & Dora Lara Gonzalez, ForgingPartnershipsBetween Mexican American Parents and the Schools, ERIC DIGEST (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Oct. 1995, at 1, available at http:llwww.ed.gov/databases!ERICLDigests/ ed388489.html (last visited Feb. 2, 2002). 89. See Chavkin & Gonzalez, supra note 88, at 1. 90. Helping Migrant,Neglected, and Delinquent Children Succeed in School: Hearing Before the House Comm. on Educ. and the Workforce, 106th Cong. 1st Sess. 61 (1999) (Nat'l Ass'n for Migrant Educ. Inc., "Taking Migrant Educ. into the Next Millennium," A Comprehensive Plan for the Educ. of America's Migrant Children); see Biernat & Jax, supra note 23, at 10; Parker, supra note 40; Rodriguez, supra note 76. 91. See Fulton, supra note 25. 92. See SOSA, supra note 86, at 347; Parker, supra note 40. 93. See Chavkin & Gonzalez, supra note 88, at 3. 94. See id. 95. See id. Another problem that prevents migrant parents from being involved in their children's learning process is that migrant parents work long days, often far from their children's schools. See PERRY, supra note 26, at 4. 96. See Chavkin & Gonzalez, supra note 88, at 1.

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glish language often makes migrant parents resist necessary and benefi97 cial interactions with the American system of public education. It is no wonder with all the challenges migrant students face, they are arguably considered the most at-risk population of students in schools today. However, just because they are poor, or because they travel from school to school, or even state to state, does not mean that our system of education should turn its back on these children. It is this constant relocation that causes schools and communities to refuse to claim these children and their families. However, it is precisely due to the struggles these families face, as well as the services they provide our society, that we must work to ensure migrant students have every opportunity to achieve what all children deserve-equal education. Ill. THE HISTORY
OF THE FEDERAL GOVERNMENT IN EDUCATION

AND THE HISTORY OF THE MIGRANT EDUCATION PROGRAM

A. Congress' Role in Education Even before the adoption of the Constitution, the federal government played a significant role in American education.98 In 1785, the Continental Congress passed the Land Ordinance Act of 1785,11 which set aside a single lot of land in each township "for the maintenance of public schools within said township." 1" Thereafter, Congress passed the Northwest Ordinance in 1787,101 which declared that "religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.""Ica

97. See Fulton, supra note 25; Rodriguez, supra note 76. 98. See Michael Heise, Goals 2000: Educate America Act: The Federalizationand Legalization of EducationalPolicy, 63 FoRuDHAu L REv. 345, 364 (1994); Elisabeth Jaffe,
Note, A Federally Mandated NationalSchool Curriculum: Can Congress Act?, 24 Sa-TON

LEGis. J. 207, 221 (1999) (stating that the federal government has been involved in the promotion of education since the Articles of Confederation). 99. See Jaffe, supra note 98, at 221 (citing An Ordinancefor Ascertainingthe Mode of Disposing of Lands in the Western Territory, 28 JOUR.NALS OF n CoNnNEN-TAL CONGRESS 1774-1789, at 375 (J.C. Fitzpatrick ed., 1933)). 100. Jaffe, supra note 98, at 221. 101. See Gerald Unks, The Illusion of Intrusion: A Chronicle of FederalAid to Public Education,49 EDUC. F. 133,135 (1985) (citing FLETCHER H. Swrr, FEmDEAL AND STATE POLICIES IN PUBLIC SCHOOL FINANCE IN THM UNITED STATES 12 (1931)); see also Heise, supra note 98, at 221. 102. Jaffe, supra note 98, at 221; see also 2 THE FEDERAL AND STATE CoNsrrTnToNs,
HALL COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES, H.R. Doc. No. 59-357, at 961 (Francis Newton Thorpe ed., 1909) (noting the

importance of education in the formation of the U.S. Northwest territories during the

1700s).

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Eventually, Congress required all states to provide for education in their constitutions as an admission requirement for statehood. 0 3 Even without explicit mention of education in the Constitution, the federal government has consistently used its power to further education in America. In fact, the federal government took steps through the passage of the Land Ordinance Act of 1785 and the Northwest Ordinance of 1787 to educate the general population far before the states did." Throughout the history of the United States, the federal government has acted to regulate education in many ways under the power of the Commerce Clause. 0 5 Operating under the assumption that a decline in education leads to a decline in commerce, the federal government has exercised the right to regulate education through the Commerce Clause. 0 6 Congress' exercise of the right to be involved in education is based on the idea that without proper education, an individual will be unable to obtain a job. 0 7 Furthermore, schools themselves are businesslike entities that impact commerce.' 8 Based on these realizations, it is evident the federal government has the right to regulate education through the Commerce Clause. 10 9 B. Legislative History of the Migrant Education Program

Congress exercised its powers to regulate education under the Commerce Clause when it first addressed the educational problems of migrant students with the Migrant Education Program (MEP) through the Elementary and Secondary Education Act (ESEA) of 1965.110 The MEP created a grant program based on formulas that provided federal funds 11 to state educational agencies for the purpose of serving migrant students.
103. See Heise, supra note 98, at 364.
104. See generally Jaffe, supra note 98, at 221-28 (discussing the history of education

and federation). 105. See U.S. CONST. art. I, § 8, cl. 3 ("Congress shall have the power to... regulate Commerce with foreign Nations, and among the several States.... ."); Jaffe, supra note 98, at 228. 106. See U.S. CONST. art. I, § 8, cl. 3; Jaffe, supra note 98, at 229.
107. See Jaffe, supra note 98, at 230.

108. See id. at 229. 109. See U.S. CONST. art. I, § 8, cl. 3; Jaffe, supra note 98, at 229-33. 110. 20 U.S.C. §§ 6391-99 (1994); see DEP'T OF EDUC., THE EDUCATIONAL EXCELLENCE FOR ALL CHILDREN ACT OF 1999: AN OVERVIEW OF THE CLINTON ADMINISTRATION'S PROPOSAL TO REAUTHORIZE THE ELEMENTARY AND SECONDARY EDUCATION

Act 1

NAT'L COMM'N ON MIGRANT EDUC., KEEPING Up wiTH OUR NATION'S MIGRANT STUDENTS: A REPORT ON THE MIGRANT STUDENT RECORD TRANSFER SYSTEM

(1999);

(MSRTS) 5 (1991) (briefing the history of ESEA and noting Congress amended Title I in

1966). 111. See 20 U.S.C. § 6392 (1994);

NAT'L COMM'N ON MIGRANT EDUC,, supra note 49, at 18; Al Wright, Reauthorized Migrant Education Program: Old Themes and New, ERIC

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The initial funding authorization was $9,737,000.112 The allocation had grown to $255,744,000 by 1983, and more than 3,000 projects were supported nationwide for about 600,000 pre-school, elementary, secondary, and post-secondary migrant students. 113 As recommended by the Senate, the projected 2001 Congressional budget for the MEP is 114 $380,000,000, an increase of $25,311,000 over the 2000 budget allocation. Although funding has increased annually to help migrant students, the per capita allocation of funds through the MEP has decreased significantly." 5 There have been significant increases in funding since the MEP began allocating grant funds in 1966; however, the funding has not grown as rapidly as the increase in migrant students." 6 In 1980, there were 463,000 identified migrant students in the United States with approximately $950 allocated per child. 117 However, in 1999 there were 752,000 identified migrant students which equated to a per child funding of only $461.118 To provide equal educational opportunities for migrant children, funding must be maintained so that specifically tailored educational services, such as bilingual classes and summer programs, can be provided." 9 In order to better facilitate this grant program, Congress required states, beginning in 1974, to determine the number of migrant students served by the MEP.12 ° State funding allocations are based on the number

DIGEST (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Mar. 1995, at 2, available at http:ll/v.ed.govldatabaseslERICDigestsed380267.html (last visited Feb. 2, 2002). 112. See Eugene Binder, Alternative Funding Sources for Migrant Education, ERIC DIGEST (ERIC Clearinghouse on Rural Educ. and Small Schs., W. Va.), Sept. 1984, at 2, available at http.//www.ed.gov/databases/ERIC-Digeststed260872.html (last visited Jan. 2, 2002). 113. See id. at 1. 114. See S. REP. No. 106-293, at 380 (2000). 115. See generally Wright, supra note 111, at 2 (discussing the reauthorization of the Migrant Education Program). 116. See Deborah Robiglio, Schols in Orange Offer Er-Migrant Worker Rich Harvest, NEws & OBSERVER (Raleigh, N.C.), Mar. 13,1999, at BI (expressing concern regarding the ability of government programs to pay as the migrant student population increases), available at 1999 WL 2742323; see also Wright, supra note 111, at 2. 117. See Interstate Migrant Educ. Council, The Value of Migrant Education, at http./I enl.endiva.net/migedimeclpub/Ll2.asp (last visited Feb. 2,2002). 118. See id. 119. To some, it might appear these programs give migrant students more opportunities than what is provided to non-migratory students, and that migrant students already have the equal opportunity to an education but they simply do not take advantage of the current education system. However, special education services are essential to provide every opportunity to allow these children to succeed. Without more funding and special educational services, migrant students will never receive the education that the Supreme Court and Congress intended. See Hahn, supra note 13, at 271. 120. See NAT'L COMM'N ON MIGnrrA EDUC., supra note 110, at 5.

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of eligible children identified within each state.' 21 Therefore, it is important for states to be proactive in identifying and recruiting students who qualify for the MEP funding. 122 Based on this state-identified number, the State Education Agencies apply for grants requesting funds from the United States Department of Education."z These funds are then used by the states to provide services for migrant students. 2 4 Under the current statute, which was reauthorized 1 25 in 1994, a student qualifies for MEP services if he or she is a child between the ages of three to twenty-one and meets the definition of "migratory." 12 6 The educational services provided by the MEP are restricted to children of migratory agricultural workers who are "currently migrating."' 2 7 Eligibility under this standard is based on having moved at least once in the past three years, whereas prior legislation based eligibility on a single move within the past six years. 28 Although this reduction in eligibility seems drastic, there are three exceptions that allow a child to receive services after the three years have expired. First, the child is allowed to receive services for the duration of the academic year in which the eligibility expired.' 29 Second, if compara-

121. See OFICE OF MIGRANT EDUC., supra note 1; PERRY, supra note 26, at 12, 122. See PERRY, supra note 26, at 12. 123. See NAT'L COMM'N ON MIGRANT EDUC., supra note 49, at 18; Div. of Migrant Educ., Tex. Educ. Agency, Migrant Education in Texas, at http:llwww.tea.state.tx.us/migrant/miged.html (last visited Oct. 8, 2001). 124. See NAT'L COMM'N ON MIGRANT EDUC., supra note 49, at 20; Div. of Migrant Educ., supra note 123. 125. "Authorize" means to give legal power to. See MERRIAM-WEBST.R DicrONARY 65 (1997). 126. See 20 U.S.C. § 6399 (1994). A migratory child is: a child who is, or whose parent, spouse, or guardian is, a migratory agricultural worker, including a migratory dairy worker, or a migratory fisher, and who, in the preceding thirty-six months, in order to obtain, or accompany such parent, spouse, or guardian in order to obtain, temporary or seasonal employment in agricultural or fishing work(A) has moved from one school district to another; (B) in a State that is comprised of a single school district, has moved from one administrative area to another within such district; or (C) resides in a school district of more than 15,000 square miles, and migrates a distance of 20 miles or more to a temporary residence to engage in a fishing activity. Id.; see also Goldberg, supra note 35; Wright, supra note 111, at 3. He or she "moves from one school district to another in order for one or more family members to seek temporary or seasonal work in agriculture or fishing." Wright, supra note 111, at 1. 127. See 20 U.S.C. § 6399 (1994); 34 C.F.R. § 200.40 (1999); NAT'L COMM'N ON MI. GRANT EDUC., supra note 49, at 30. 128. See Wright, supra note 111, at 2. 129. See 20 U.S.C. § 6394(e)(1) (1994); see also Wright, supra note 111, at 1 (commenting on eligibility requirements).

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ble services are not provided through other programs, then a child whose eligibility expired prior to the beginning of the school year may be served for an additional year. 0 Third, credit accrual programs may continue to serve secondary students until graduation.13 ' Students receiving continuing MEP services under these three exceptions are not counted in the limited than intended; this shortfall of grant money may prevent the state 33

state's funding allocations. 32 Therefore, MEP services might be more from providing continuing services altogether.
The reauthorization of the MEP shifted the focus to providing services to the migrant children who are failing, are at risk of failing, or are unable to meet state standards."3 Under the new priorities program, benefits are taken away from some migrant students to help those considered more "at risk." Educators who view all migrant students as "at risk" are

concerned that this shift in the priority of services will negatively impact
migrant students. 3 5
IV. MIGRANT STUDENT RECORD TRANSFER SYSTEM

(MSRTS)

Following a federal mandate to coordinate nationwide services offered to migrant students, including the transfer of student records, the State Directors of the MEPs created the Migrant Student Record Transfer System (MSRTS).' 6 The MSRTS computer database was designed to exchange migrant students' health and education information among the states as the children make their annual migration through the country with their families.' 3 7
130. See 20 U.S.C. § 6394(e)(2) (1994); see also Wright, supra note 111, at 1. 131. See 20 U.S.C. § 6394(e)(3) (1994); see also Wright, supra note 111 at 1. 132. See Wright, supra note 111, at 1. 133. See generally id. at 1 (discussing the exceptions from continuing services). 134. See 20 U.S.C. § 6394(d) (West 2000); Wright, supra note 111, at 1. 135. See 20 U.S.C. § 6399 (West 2000) (defining migrant students); see also Wright, supra note 111, at 1-2. 136. See Education Amendments of 1974, Pub. L No. 93-380, § 122, 88 Stat. 484,541, 551-53 (1974) (amending Title I of the Elementary and Secondary Education Act of 1965) (ordering the Commissioner of Education to use the statistics gathered by the MSRTS to determine the number of migrant students); see also NAT'L Co.&t~'N ON MioRA,-r EDUC., supra note 110, at 5. When Congress authorized the Migrant Education Program in 1966, it charged the states with coordinating programs and projects to help address the unique educational needs of migrant students. See NAT'L COMM'N ON Mlca.N"r EDuc., supra note 110, at 5. One task, the transfer of migrant student records, led to the creation of the MSRTS. See id.; see also Cahape, supra note 22, at 1; Janis K. Lunon, Migrant Student Record Transfer Systent What Is It and Who Uses It?, ERIC Dio-sr (ERIC Clearinghouse on Rural Educ. and Small Schs., Las Cruces, N.M.), Mar. 1986, at 1, availableat http'./ www.ed.gov/databases/ERIC.-Digests/ed286700.html (last visited Feb. 2, 2002). 137. See NAT'L COMM'N ON MfIGRANT EDUC., supra note 110, at 5. Each state spent a portion of its MEP funding towards creating the new system, which was maintained and

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Once Congress mandated the use of the MSRTS to track eligible migrant students and thus determine state funding allocations, the original intent of the system was destroyed.13 8 Furthermore, the system was antiquated and unresponsive to the needs of the classroom teacher.1 39 For these reasons, Congress prevented MSRTS from achieving its intended goal of providing continual education services to migrant students. In 1994, due to the many problems with the MSRTS, Congress decided to dismantle the system under the reauthorization of the MEP.14 Thus, 1 on February 14, 1995, the MSRTS ceased transferring migrant student records. 4 1

supported by the Arkansas Department of Education. See id.; see also Cahape, supra note 22, at 1; Lunon, supra note 136, at 1. 138. See Education Amendments of 1974, Pub. L. No. 93-380, § 122, 88 Stat. 484, 541, 551-53 (1974) (amending Title I of the Elementary and Secondary Education Act of 1965); NAT'L COMM'N ON MIGRANT EDUC., supra note 110, at 5-6. Instead of being utilized by the classroom teacher in an attempt to better educate the migrant student, the MSRTS was used solely by the State Education Agencies to meet reporting requirements set by the U.S. Department of Education. NAT'L COMM'N ON MIGRANT EDUC., supra note 110, at 7. Schools eventually became so overwhelmed with the recording requirements that only the minimum reporting necessary to continue federal funding was maintained. See id. 139. See id. at 10. Student records were reported to the system through a lengthy three-step process. See id. First, the local education agency would collect the student's records from the teachers, then forward the records to the state education agency, which would in turn send the records to the centralized database. See id. As if the process was not already involved, it was exasperated by the fact that it was all done by paper and pencil. See id. Moreover, local educators had no direct access to the student records. See id. All this led to educators waiting up to ninety days for the student's records. See id. 140. See Pub. L. No. 103-59, 107 Stat. 281 (1993); see also Herrera v. Riley 886 F. Supp. 45, 47 (D.D.C. 1995). The Public Law states: notwithstanding any other provision of Federal law, the Secretary of Education shall extend the contract for the operation of the migrant student record transfer system under section 1203(a)(2)(A) of the Elementary and Secondary Education Act of 1965 to operate such system until such time as the Secretary of Education determines is necessary, but shall not extend such contract beyond June 30, 1995 Pub. L. No. 103-59, 107 Stat. 281 (1993). As the MSRTS grew and data collected on each student increased, problems such as inaccurate and incomplete records became prevalent, See NAT'L COMM'N ON MIGRANT EDUC., supra note 110, at 6. The incompleteness of the data became so pervasive that a MSRTS user could often receive a returning student's records and the last entry would be the information they entered several months prior. See id. at 7. Furthermore, the system lacked standards for accuracy and security of student information, but most importantly the system failed to enforce state accountability. See id. at 17-19. Although Congress required student records to be transferred between states there was no requirement that the information transferred was conducted through the MSRTS, as participation was purely voluntary. See id. at 19; see also Wright, supra note 111, at 1. 141. See Herrera,886 F. Supp. at 47; Parker, supra note 40 (recognizing that in 1995 the federal government cut the MSRTS program).

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A. Herrera v. Riley: An Effort to Save the MSRTS Despite the weaknesses of the MSRTS, parents of migrant students sought an injunction to prevent discontinuance of the MSRTS by the Secretary of Education.1 4 The court focused on two issues (1) the likelihood of success on the merits and (2) the degree of irreparable injury.14 3 By considering the plaintiffs' likelihood of success on the merits, the court found that the parents' chances of prevailing were slim.' 44 The plaintiffs asserted the MSRTS was more successful in guaranteeing the continuity of transferring migrant student records than any other system in existence. 1 45 Moreover, they argued that without such a system to transfer records, migrant children would face substantial harm to their educational fights."4 The defendant, the Secretary of Education, claimed the plaintiffs erroneously stated the effectiveness of the MSRTS. 1 47 The Secretary asserted the system was too complicated, expensive, and inefficient to justify continuing to fund the database. 48 The plaintiffs countered by arguing the Secretary was mandated by Congress "to ensure effective records transfer and to maintain continuity in related services for migrant children[;]' 1 49 therefore, the court should prevent the Secretary from discontinuing the MSRTS until an alternative record transfer system was inplace. 150 However, the Secretary claimed the language of the statute left the option of whether or not to operate the MSRTS at his discretion.' 5 ' The court considered this dispute a simple case of statutory interpretation when determining whether to issue the injunction. 52 The court

142. See Herrera,886 F. Supp. at 47-48.

143. See id.48-53. To obtain injunctive relief the party seeking it must demonstrate at
a substantial likelihood of prevailing on the merits of the claim, the denial of the injunctive relief will cause irreparable harm to the plaintiff, the issuance of the injunctive relief would not substantially harm the other party's interest, and the injunction is in the best interest of the public. See id. 48. at

144. See id.
145. See id. at 47-48.

146. See id. at 48. 147. See 1d. at 47. 148. See id.
149. Id. at 49 (quoting 20 U.S.C. §§ 2781-83 (1988)) (emphasis added). In 1988, sec-

tions 2781 through 2783 of the United States Code mandated federal grants for educational programs that targeted migrant children. See 20 U.S.C. §§ 2781-83. These sections were
amended by the Elementary and Secondary Education Act of 1965, title 1, 20 U.S.C. §§ 6391 et seq. (1994). 150. See Herrera, 886 F. Supp. at 49.

151. See Id. 152. See id. at 48 (acknowledging the case rests on statutory interpretation, with the plaintiffs arguing the Secretary of Education is obligated to transfer records through the

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found the statute's language was clear,"5 3 deciding that Congress intended the Secretary to have discretion in determining the future of the MSRTS.' 54 Once the court decided the termination of the MSRTS was at the Secretary's discretion, it examined the degree of irreparable injury to the plaintiffs. 5 5 In holding that it did not injure the plaintiffs, the court focused on whether termination of the MSRTS would injure a substantial portion of the class itself. 5 6 There were three reasons for the court's holding. First, the court reasoned the MSRTS was an imperfect system, and the Secretary would continue to find alternative systems to efficiently transfer student records.' 57 Second, the dissolution of the MSRTS would release two million dollars to the states to create alternative record transfer systems, thereby mitigating the harm caused to the plaintiffs by discontinuation of the MSRTS.'5 s Lastly, the court ruled the severity of possible injury was not strong enough to counterbalance the weak show59 ing of a likelihood of success on the merits.' The court was skeptical of the irreparable harm claimed by the plaintiffs based on the absence of a nationwide system of transferring migrant students' records. 60 The court claimed that if the parents were sophisticated enough to participate in a lawsuit attempting to enjoin the MSRTS from being dismantled, then they were obviously capable of ensuring the transfer of their children's academic r~cords.' 61 Thus, the injunction failed and the Secretary of Education abandoned the MSRTS on February 14, 1995, without erecting a replacement student record transfer system.162 B. Migrant Education Without the MSRTS

Since the dismantling of the MSRTS, most states rely onl telephone, mail, internet, and fax to transfer migrant students' records.' 63 At least
MSRTS, while the defense asserts that the Secretary has discretion whether to continue using the MSRTS). 153. See id. at 50. 154. Id. 155. See id. at 51. 156. See id. at 52-53. 157. See id. at 53. 158. See id. 159. See id. 160. See id. at 52. 161. See id.; Parker, supra note 40 (noting that since the MSRTS, schools now deal with incomplete records). 162. See generally Herrera,886 F. Supp. at 52 (denying the plaintiff's motion for preliminary injunction). 163. See DEP'T OF EDUC., supra note 110, Pinkerton, supra note 37.

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nineteen states have electronic systems in place to track student records; however, the systems are used mostly for record maintenance and not for transferring records from one school to another. 164 This stunted use of the systems is authorized because Congress has only charged the Secretary of Education with establishing minimum standards for what must be maintained in student records. 6 Establishing minimum standards of what must be maintained within student records, however, does not require that records be maintained. The 1994 reauthorization of the MEP does, however, require student records to be exchanged. 6 6 Congress requires state grantees to provide educational continuity by "timely transfer of pertinent school records, including information on health."' 6 7 This leads one to question: whether there is a continued exchange of student records without a national database, and if so, what burdens have been placed on local education agencies to guarantee this exchange. Without national standards requiring a uniform system for records transfers, students suffer from delays in accessing special educational services, duplicate immunizations, and inappropriate levels of academic instruction.'6 8 Simply providing greater incentives for state cooperation in improving delivery of services' 6 9 does not account for the fact that educators need the academic records to properly assess and place the migrant students in the classes that best match their levels of knowledge. A federal system is necessary to guarantee migrant students' records are being maintained and transferred. Congress creates no accountability or protection for migrant students by merely requiring the Secretary to solicit information on how student records are transferred from school to school.' 7 0 There is no consequence to state or local education agencies
164. See DEP'T OF EDUC., supra note 110, at 40. 165. See H.R. REP. No. 106-394, pt. 1, at 43 (1999). 166. See 20 U.S.C. § 6394(b)(3) (1994); 20 U.S.C. § 6398(b)(1)(A) (1994); Wright, supra note 111, at 1. Since the dismantling of the MSRTS, most states rely on telephone, mail, internet, and fax to transfer migrant students' records. See DEP'T oF EDuc., supra note 110; Pinkerton, supra note 37. At least nineteen states have electronic systems in place to track student records; however, the systems are used mostly for record maintenance and not for transferring records from one school to another. See DEP'T OF EDUC., supra note 110, at 40. 167. 20 U.S.C. § 6394(b)(3) (1994). 168. See Helping Migrant, Neglected, and Delinquent Children Succeed in Schoo: Hearing Before the House Con. on Educ. and the Workforce, 106th Cong. 1st Sess. 70 (1999) (Nat'l Ass'n for Migrant Educ. Inc., "Taking Migrant Educ. into the Next Millennium," A Comprehensive Plan for the Educ. of America's Migrant Children). 169. See 20 U.S.C. § 6394(b)(3) (1994); 20 U.S.C. § 6398(a)(1) (1994); Comm. O% EDUC. Am THE WORKFORCE H.R., STUDENr REsuLrs Acr OF 1999, H.R. Rm. No. 106394 (1), at 544 (1999). 170. See 20 U.S.C. § 6398(b)(1)(A) (1994).

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for failing to properly maintain student records. Nor is there a consequence for state or local education agencies in failing to transfer the student records. The only consequence is that the migrant student, who is already faced with challenges of poverty, language deficiency, and mobility, now must also try to cope with a system that fails to provide an equal educational opportunity. Without a federally-mandated national database to transfer migrant student records, local educators cannot meet the special needs of these students. 17 1 It is the duty of the classroom teacher to prepare a child for the workforce, but without knowledge of a child's academic record, educators will fail to provide an opportunity for a life outside of migrant farm work. Although states are working together in consortiums to pool their fiscal resources,17 2 this does not protect the child's interest because the local educator does not have the tools necessary to properly educate the student. "The lack of a national efficient and cohesive system for transferring the records of migrant students impedes schools' abilities to provide appropriate education and related services to migrant students and their families."' 7 3 It is the responsibility of the federal government to provide the means for efficient and effective transfer of migrant student records. Federal leadership is needed to ensure the transfer of student records. Without federal legislation mandating the transfer of migrant student records through a unified national system, there is no guarantee such transfers will occur.
V. PROPOSAL

Although the federal government currently provides funding for migrant students through the Migrant Education Program, this system falls short of effectively serving these at-risk children. To properly serve the migrant child, the federal government must provide a method that ensures the migrant child will be taught with as little variance as possible as the child moves from one school to another. As part of the Migrant Education Program, Congress should mandate that students' records be transferred through a national database. Congress should charge the United States Department of Education with implementing and authorizing a national database that will enable teachers,
171. See Pinkerton, supra note 37 (admitting that there is no way to measure the academic progress of migrant students without a national database). 172. See 20 U.S.C. § 6393(d) (1994); Wright, supra note 111, at 1. 173. Helping Migrant,Neglected, and Delinquent Children Succeed in School: Hearing Before the House Comm. on Educ. and the Workforce, 106th Cong. 1st Sess. 70 (1999) (Nat'l Ass'n for Migrant Educ. Inc., "Taking Migrant Educ. into the Next Millennium," A Comprehensive Plan for the Educ. of America's Migrant Children); see also Pinkerton, supra note 37.

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administrators, and other local school officials to transfer migrant student records. With advances in technology, such as increasing access to and speed of the Internet, not only is such a program possible, it is also fimancially feasible. 7 4 The use of a federally-mandated national database would provide educators essential information about migrant students regarding their health and academic progress. Without a national database that tracks and efficiently disseminates migrant student information, the Supreme Court's ultimate goal of providing equal educational opportunities to all children is unachievable. 175 To truly guarantee an equal educational opportunity, Congress must provide a means for migrant students' records to be transferred from state to state, because without such a system, migrant students are not afforded opportunities equal to those available to students who remain in the same school the entire academic year. Some might argue, however, that the government is not forcing migrant farm workers to move from one state to another;, accordingly, it is not the government's fault that the migrant student is not receiving an equal opportunity to an education. However, an individual's freedom of movement is protected by the Constitution. 7 6 The Supreme Court has held that "all citizens must be free to travel throughout the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.""7 Therefore, not only must a state ensure equal educational opportunities for migrant students, but it must also provide this opportunity regardless of the seasonal migration of the child's family. A. New GenerationSystem (NGS) One possible model for a federally-mandated national database to transfer migrant student records is the New Generation System (NGS). 178
174. See TEXAS A&M UNIV., KINGSVILLE, NEv GENERA-nON Sysmii: AN IN-RSTATE INFORMATION NErWoRK SERVING AMERICA'S CjLDRrN 1 (1996). 175. See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).

176. See U.S. CONST. art. IV, § 2, cl. 1; U.S. CONT. amend. V (encompassing the right to travel as part of the "liberty" interest which a citizen cannot be deprived of without due process of law under the Fifth Amendment); U.S. CONST. amend. XIV; Shapiro v. Thompson, 394 U.S. 618, 670 (1969) (Harlan, J., dissenting). 177. Shapiro, 394 U.S. at 629. The United States Supreme Court emphasized:

This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.
Id.

178. See TEXAs A&M UNIV.,

KINGSVILLE,

supra note 174, at 1; Pinkerton, supra note

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The NGS is a computer network designed to transfer migrant student

records. 1 79 Currently, twenty-nine states use the NGS, which was created

in response to the dismantling of the MSRTS. 18 ° The NGS system includes many of the features that the MSRTS lacked: the NGS is easy to use, provides "real-time information," creates security for student information, maintains data integrity, produces reports for all levels of the educational system, is cost-effective, and is capable of multimedia incorporation.18 ' All of these improvements make the NGS the best system available; therefore, the federal government should require states to transfer 2 migrant students' records through the Next Generation 8 System.' 8 The NGS is easy to use because it is designed with the user in mind. 1 3 Essentially, it uses the Internet to transfer student records and is compatible with both Macintosh and IBM computers." 8 This is highly beneficial for educators because districts tend to vary between these two types of computers. All required data could easily be entered using default settings.' 85 Once the new data is entered into the system, all prior data entered on that student is used to fill in the blanks.' 8 6 Furthermore, the capability to view photographs is a feature that was not available on the

179. See FAGNONI, supra note 2, at 38; TEXAS A&M UNIV., KINGSVILLE, supra note 174, at 1. States include Colorado, Delaware, District of Columbia, Illinois, Montana, New Mexico, Ohio, Texas, Utah, Washington, and Wisconsin. See FAGNONI, supra note 2, at 38; see also Pinkerton, supra note 37; New Generation System, How NGS Works, at http:// ngsmigrant.com/serv0l.htm (last visited Oct. 5, 2001) (describing the NGS as a system that efficiently and effectively records and transfers migrant student educational information). 180. See TEXAS A&M UNiv., KINGSVILLE, supra note 174, at 1 (stating the NGS is supported by a 29-state consortium). But see Jackson, supra note 53 (stating the NGS is part of a 16-state network); E-mail from Pat Meyertholen, Texas Education Agency, to Michelle R. Holleman (Aug. 26, 2001, 15:03:26 CST) (stating that approximately eleven states use the NGS) (on file with author). 181. See generallyTEXAS A&M UNiv., KINGSVILLE, supra note 174, at 1-3 (describing the benefits); New Generation System, supra note 179 (stating the key benefits of the NGS). 182. Although the Department of Education could create a new system, the NGS is adequate. See Pinkerton, supra note 37. 183. See TEXAs A&M UNIV., KINGSVILLE, supra note 174, at 1; New Generation System, About NGS, at http://ngsmigrant.comlindex.htm (last modified May 22, 2001). The NGS was created with the educator as the primary client. 184. TEXAs A&M UNIV., KINGSVILLE, supra note 174, at 1; New Generation System, FrequentlyAsked Questions (detailing the hardware needed for either a Windows-based or Macintosh computer), at http://ngsmigrant.comlpr02.htm (last modified May 22, 2001). 185. See TEXAS A&M UNIV., KINGSVILLE, supra note 174, at 1. 186. See id.

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MSRTS. 18 7 There is also a system in which questions and comments can be sent between the user and the NGS staff instantaneously. 111 In stark contrast to the MSRTS, the NGS is designed with speed in mind.' 8 9 Students' records are updated and obtained in "real-time," meaning that as soon as the user's request is made, the information is displayed on the computer screen.' 9° Teachers who request students' records do not have to wait days or even weeks before the documents 1 arrive in the mail, as was common under the MSRTS.' 9 The capability other state.192 Moreover, the NGS system offers drop-down menus instead of data codes. 9 3 For example, when entering the student's race, instead of using a coded number, the user merely clicks on the appropriate race from the list provided.' 9 4 The use of standardized data input is another feature

of "real-time" display is even available when requesting records from an-

that allows for data integrity.' 95 Utilizing the user's identification number, the system determines what state, district, and campus the educator is representing; the1 system then automatically defaults the fields with the 96 user's information. In addition to its speed, the NGS provides state-of-the-art security to protect confidential student records.' 97 To gain access into the NGS, the user must first complete password authentication. 98 Once the educator
187. See id. 188. See id.; New Generation System, supra note 179 (stating that the response from
the system occurs within seconds). 189. See TEXAS A&M UNIV., KINGSVILLE, supra note 174, at 1; Palomo, supra note 41. 190. See TEXAS A&M UNv., KINGSVILLE, supra note 174, at 1; Palomo, supra note 41 (stating that within seconds of entering the student's name into the system, academic, medical, and dental records appear); New Generation System, supra note 179. 191. Compare NAT'L COMM'N ON MIGRANT EDUC., supra note 110, at 10, wit): TEXAS A&M UNIV., KINGSVILLE, supra note 174, at 1. 192. See TEXAS A&M UNIV., KINGsVILLE, supra note 174, at 1; New Generation System, supra note 179 (stating that all information is available instantly). 193. See TExAs A&M UNIv., KIG sVIL.E, supra note 174, at 2. 194. See id. 195. See id. (describing the various ways data can be entered, thus ensuring its integrity). 196. See id. 197. See id. 1; Pinkerton, supra note 37; New Generation System, supra note 184. at To access the NGS, an educator must complete a security affirmation form. The educator's immediate supervisor must then approve it before it is submitted to the Division of Migrant Education at the Texas Education Agency. After it is forwarded to the TEA, the

NGS staff assigns a User ID and password. Once the local educator receives this information, they are ready to access the system. See New Generation System, supra note 184. 198. See TEXAS A&M UNIV., KINGSVILLE, supra note 174, at 1; Pinkerton, supra note

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is permitted access and records are obtained, they are transmitted cryptically using a system created by Netscape Corporation. 99 This system ensures data security while in transit.2 00 If there is a breach of the system, the NGS staff can determine whose username and password login was used.2 0 ' They can then ensure that the data remains in the system and is not accessed by a person impersonating an educator. 2 2 Furthermore, the NGS is protected behind a "firewall," or user barrier, which prevents unauthorized database modifications.20 3 Besides speed and security, data integrity is another goal that the NGS has worked to achieve.2 4 The NGS strives to maintain student records that are accurate and not duplicated within the system. 20 5 If the student's data was contained in the MSRTS, the NGS uses that same identification 2 number. 6 If, however, the student does not have a MSRTS number, he or she is assigned a unique student identification number.2 0 7 The system runs a check to determine if there are any matches. 208 If there are possible duplications in the students' identification numbers, they are displayed for the user to compare.20 9 In addition to the individualized student information that may be provided, NGS is also capable of creating many different reports from the state, district, and local levels. 2 10 Reports are automatically created and sent back to the user in formats such as Microsoft Word. 211 These reports are beneficial at all levels of the educational system. They are especially

199. See TEXAS A&M UNIV.,

KINGSVILLE,

supra note 174, at 1.

200. 201. 202. 203. 204.

See id. See id. See id. See id. See id.

205. See id. at 1-2; New Generation System, supra note 179. 206. See TEXAS A&M UNrv., KINGSVILLE, supra note 174, at 2; New Generation System, supra note 179.

207. See TEXAS A&M UNIV.,
tem, supra note 179.

KINGSVILLE, KINGSVILLE,

supra note 174, at 2; New Generation Syssupra note 174, at 2 (stating that the NGS

208. See TEXAS A&M UNIV., 209. See id.

also keeps track of social security numbers for state use). 210. See id. (emphasizing the system can create over two dozen standard reports); see also New Generation System, supra note 179 (listing the various reports the NGS is capable of generating).

211. See TEXAS A&M UNIV.,

KINGSVILLE,

reports, namely Write (the stock Windows application), Microsoft Word, or plain text file); see also New Generation System, supra note 179 (mentioning that reports can be customized in Microsoft Excel).

supra note 174, at 2 (discussing formats of

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helpful in providing critical information to the state education agencies when drafting grants for funding.21 2 Despite all of these advances, the most important factor for the NGS's success is its cost-effectiveness. 2 13 The twenty-nine states that are part of the NGS consortium provide the entire funding for the system through membership fees. 214 The only cost to the local campus is that of providing Internet connections.21 5 The software necessary for NGS to communicate with the server is also cost-efficient. 216 Netscape Navigator is the Internet browser used to communicate with the NGS, which is provided free of charge to educational institutions.2 17 Once the software is updated on the server, Netscape automatically recognizes it2181 Finally, the NGS provides for the future use of multimedia2 19 In addition to seeing a picture of the student, the NGS vili eventually provide the user the opportunity to hear the student read. 0 It will also be possible to view a handwriting sample, review past work, and even see the student giving a presentation before his or her class 2 It is clear that the New Generation System is the best available technology for the transfer of migrant student records. The entire system works to help the local educator better serve the migrant student. It even provides the all-important reports necessary for states to prepare grant proposals requesting funding from the federal government. It is time for the federal government to insist that all recipients of federal MEP funds become paying members of the New Generation System. B. Congress Must Get Involved

Despite the New Generation System's improvements from the MSRTS, all of which are necessary to provide equal educational opportunities to migrant students, the NGS is only used by a twenty-nine state consor-

212. See New Generation System, supra note 179 (stating that district and campus reports select students meeting the federal reporting requirements). 213. See generally TEXAS A&M UNIV., KINGSVILLE, supra note 174, at 2 (evaluating the cost-effectiveness of NGS). 214. See id. (noting that Netscape Navigator is provided free of charge to educational institutions).
215. See id. 216. See id. 217. See id. See generally New Generation System, supra note 184 (stating that the necessary browser software is either Netscape Navigator or Microsoft Internet Explorer). 218. See TEXAS A&M UNrv., KinGSVILt., supra note 174, at 2. 219. See id. at 3. 220. See id. 221. See id.

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Congress must demand that all states receiving federal funds through the Migrant Education Program use the NGS. The goal of equal education for all children will be achieved only through federally required state cooperation and collaboration. It is apparent that allowing the states to determine on their own how they will transfer student records, as allowed by federal law, is not adequate to truly provide equal educational access for migrant students. Opponents of a national database argue that providing student information through an Internet connection poses a threat to student privacy under the Federal Education Rights and Privacy Act (FERPA).22 3 Congress enacted FERPA to ensure access to educational records by students and parents while protecting those records from being accessible to the public at large.22 4 Funds supporting any. education agency or institution are conditioned upon protecting student educational records from being accessed by those outside of the educational system.22 FERPA provides three major fights to parents and students: (1) the right to access their educational records, 226 (2) the right to a hearing to contest information in the records,22 7 and (3) the right to have control over disclosure of the students' records. 228 Regardless of the right of the parents or students to have control over disclosure, FERPA permits nonconsensual disclosure to appropriate state and local education authorities.229 Furthermore, under section 1304(b)(3) of the Elementary and Secondary Education Act, state and local education agencies have a duty to promote interstate and intrastate coordination of services, specifically including the transfer of the records of migrant children."' Therefore,

222. See id. at 1. 223. See generally 20 U.S.C. § 1232g (1994 & Supp. V 1999). 224. See Achman v. Chisago Lakes Indep. Sch. Dist., 45 F. Supp. 2d 664, 672 (D. Minn. 1999); see also Student Press Law Ctr. v. Alexander, 778 F. Supp. 1227, 1228 (D.D.C.

1991).
225. See 20 U.S.C. § 1232g(b) (1994 & Supp. V 1999); see also Student Press Law Ctr.,

778 F. Supp. at 1228. 226. See 20 U.S.C. § 1232g(a)(1)(A), (B) (1994). See generally 20 U.S.C. § 1232g (1994 & Supp. V 1999). 227. See 20 U.S.C. § 1232g(a)(2) (1994). See generally 20 U.S.C. § 1232g (1994 & Supp. V 1999). 228. See 20 U.S.C. § 1232g(b) (1994 & Supp. V 1999). See generally20 U.S.C. § 1232g (1994 & Supp. V 1999). 229. See 20 U.S.C. § 1232g(b)(1)(A)-(J) (1994 & Supp. V 1999); 20 U.S.C. § 1232g(b)(2)(A), (B) (1994); see also NAT'L CTm. FOR EDUC. STATIsTics, DEn'T OF
REcoRDs 1-2. (1997), availa. ble at http:llnces.ed.gov/pubs97/97859.html (last visited Sept. 18, 2001). 230. See Improving America's Schools Act of 1994, Pub. L. No. 103-382, § 1304, 108 Stat. 3518 (1994) (codified as amended in scattered sections of 20 U.S.C.); see also Dn"'i
EDUC., PROTECrING THE PRIVACY OF STUDENT EDUCATION OF EDUC., PRELIMINARY GUIDANCE FOR MIGRANT EDUCATION PROGRAM, TITLE I, PAiRT

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when complying with the MEP requirement to transfer student records, "the nonconsensual disclosure of education records of migratory children, or personally identifiable information from these records, to authorized local and state education officials is permissible under FERPA."'I There is no logical reason for Congress not to mandate the use of the New Generation System by all states receiving federal migrant education funds. The shortcomings of the MSRTS that led Congress to discontinue its use are not present in the NGS. Paper and pencil reporting that took as long as ninety days to receive has been replaced with a "real-time" display of student information. Through the ease of the Internet, local educators have direct access to the student records. Therefore, the NGS significantly reduces the problems of incompleteness and inaccuracy found in the MSRTS through the use of pre-set defaults, photo images of students, drop-down menus, system checks for possible duplicate student records, and reports for state funding. 3 2 The NGS also greatly improves the security and privacy of student records as compared to the MSRTS. The NGS uses password authentication, cryptic transmission of student information, and is protected by firewalls in the event of a breach in security? 33 Furthermore, the NGS encourages advancements in technology with the use of multimedia,' which the MSRTS never obtained. Overall, the NGS offers a means by which student records can be transferred, without the drawbacks and shortcomings of the MSRTS. It is time for Congress, once again, to ensure that migrant students are included in America's system of education. To accomplish this, Congress must insist that all states participate in the transferring of migrant students' records, through a system like the New Generation System, as a prerequisite to federal MEP funding.
VI. CONCLUSION

Although education is not a fundamental right under the United States Constitution, the Supreme Court has set minimum standards that the states must comply with when providing the opportunity for a free public

C PUBLIC LAW 103-382: INTERSTATE, INTRASTATE, AND INTERAGENcY COORDIAnON 5 (2001), available at http:lwwv.ed.gov/officeslOESEIMEPIPrelimGuide/ptle.html (last visited Feb. 2, 2002). 231. DEP'T OF EDUC, supra note 230, at 4; see Improving America's Schools Act of 1994, Pub. L. No. 103-382, § 1304, 108 Stat. 3518 (1994) (codified as amended in scattered sections of 20 U.S.C.). 232. See TEXAs A&M UNIV., KINGSVILLE, supra note 174, at 1. 233. See id. 234. See id. at 3.

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education." 5 This Constitutional minimum applies to the states, regardless of whether the student has special needs." 6 Therefore, when educating migrant students, states must work even harder to achieve equality. In response to the concerns of migrant students and their unique educational needs, Congress passed the MEP, which allocated funds to states in an effort to facilitate equal access to education. 3 7 Throughout the history of the IMEP, many programs have been implemented in an attempt to serve migrant students, including the MSRTS. 3 Although it was intended to create a means for local educators to access records and better accommodate migrant students as they relocated, 2 39 the MSRTS became a bureaucratic system used for state reporting. Eventually, the MSRTS was dismantled and states were left to transfer 2 student records themselves. 4 ° State independence in transferring records is preventing the MEP from properly meeting the needs of migrant students. Without federal legislation mandating the orderly and consistent transfer of migrant students' records, the Court's directive for equal education to all will not be met. Thus, the New Generation System, which is already voluntarily being used by twenty-nine states, offers an attractive and efficient alternative.2 4 ' Using the NGS on a national level will guarantee all children the American value of providing equal educational opportunities to all.

235. See Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (stating that separate but equal public education facilities deprive minorities of equal educational opportunities); Frank, supra note 7, at 148 (discussing the Court's use of the Fourteenth Amendment to

secure equal educational opportunities for minority students). 236. See Brown, 347 U.S. at 493 (stating that once a state provides an opportunity for an education, it becomes a right).
237. See NAT'L COMM'N ON MIGRANT EDUC., supra note 110, at 5; DEP'T OF EDUC., supra note 110, at 39. 238. See NAT'L COMM'N ON MIGRANT EDUC., supra note 110, at 5. 239. See id. at 6-9 (discussing difficulties with entering data and reporting). 240. See Herrera v. Riley, 886 F. Supp. 45,47-48 (D.D.C. 1995); see also Wright, supra note 111, at 1. 241. See TExAs A&M UNrv., KINGSViLLE, supra note 174, at 1.

Files

Citation

Michelle R. Holleman, “All Children Can Learn: Providing Equal Education Opportunities for Migrant Students (Comment),” St. Mary's Law Digital Repository, accessed December 9, 2019, http://lawspace.stmarytx.edu/item/STMU_TheScholarStMarysLRev_v04i1p0113_Holleman.

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