Border region school district forced to 'disenroll' legitimate U.S. citizens

AJO – Maria Barragan has a business in Mexico and a home in Arizona. Her three children, all U.S. citizens, attend school in the Ajo Unified School District.

So when she received a letter from the school asking her to prove her residency and people started taking video of her children boarding the bus for school, she was confused.

“I don’t know why they still say we live all the time in Mexico, when we don’t. Another thing they say is that my kids are Mexican, but they are not; they are American citizens,” she said.

But the reasons for the questions and the video are now clear. The state Department of Education in May 2010 released an audit, charging that 105 students, some of whom are U.S. citizens, are attending schools in Ajo but are actually living across the border in Mexico and not entitled to a free education in Arizona schools. The state fined the Ajo Unified $1.2 million, the amount the state claims was spent to educate those students.

Barragan, along with the families of the 104 other students who did not live in the city of Ajo but claimed residency in unincorporated areas of Pima County, were asked to provide documents to prove that they reside in Arizona. In the meantime, the district has implemented new identification measures for students from the more remote parts of Pima County to show that they are authorized to board the bus in Lukeville.

And while most families claimed they did live in the state, the Arizona Department of Education maintains that many didn’t. As proof, the department released a video showing cars crossing the border at the Lukeville port of entry, 40 miles to the south, and dropping students off for a Pima County bus headed for Ajo. The audit also charged that the families tried to claim Arizona residency by using sham addresses including those for vacant lots and abandoned buildings and in some cases even paid people to act as their children’s guardians so they could go to the Ajo schools.

The fine has hit the small school district, which has an annual budget of $2.8 million, and its students hard. The district is contesting the fine and the audit’s findings. The case was being heard by the Arizona Office of Administrative Hearings, but the proceedings are in recess while both the Ajo school district and Arizona Department of Education review evidence each other’s evidence, Dooley said.

“In my opinion the audit was flawed,” said Robert Dooley, the district’s superintendent.

Shortly after the audit was released, the district appealed the case to the Arizona Department of Administrative Hearings. But for some of his high school students, the appeals process wouldn’t be fast enough, about 30 of them were in danger of not graduating on time if they didn’t finish the school year.

Principal Joen Painter said her students were angry. “They were worried that kids that were going to school here, that have been going to school here for their whole lives, weren’t going to be able to graduate with their peers,” she said.

If kindergartners are taken out of school, they can be re-enrolled in at any grade level, but if high school students don’t finish the school year, they are automatically on the five-year plan to graduation, Dooley said.

Worse, he said, is if a student is expelled because any public school can refuse to educate an expelled student.

To get around the potential consequence of expelling students, Dooley said, “We created a word, ‘disenroll.’ I don’t even know if that is a word. We wanted to be fair to the kids and we also wanted to be honest. If we were not completely confident that we had sound proof of a student’s residency, we disenrolled them.”

That happened the day after school year was out.

Ultimately, only 15 of those 30 students weren’t allowed to come back because of residency problems, Dooley said.

The district has also provided the necessary documents for several other students, leaving about 56 out of the original 105 still in question, though Dooley said the district can provide proof of residency documents for those students as well.

The Ajo district has offered to pay $300,000 for the students for which it hasn’t been able to provide proof-of-residency documents. The Department of Education lowered its initial penalty but is still seeking as much as $700,000 from the district, according to Dooley.

For parents like Barragan, the whole process has been frustrating.

Barragan said she has noticed that many students have left the Ajo school district for other cities or states, some even moving to Mexico for school to avoid any being pulled out in the middle of the year over any residency disputes. She said many are U.S. citizens.

“The kids are American citizens and they are scared … Why are they scared? We aren’t doing anything wrong. We just want an education for our kids, and I am not asking for anything else, not money, not anything,” she said.

Residency

The most fear came from the youngest students, Dooley said. His students were aware of what was going on, he said, and they told him, “They don’t want me in this school.”

Dooley tried to assure his students that it wasn’t about being unwanted.

It is about residency, however, then-Superintendent of Public Instruction Tom Horne said in a press release in December 2009 in which he announced the investigation. Horne, the recently elected state attorney general, said the audit of Ajo, was conducted after his office received several complaints and the video footage of children crossing from Mexico into Arizona at the Lukeville Port of Entry.

Under a U.S. Supreme Court case, Plyler v. Doe, public schools are forbidden from inquiring about citizenship for enrollment purposes but Arizona law requires that students must be residents.

“Arizona law is clear: Public school students, regardless of their citizenship, must reside within the state,” Horne stated in the press release. Horne and his office didn’t respond to multiple requests for interviews.

In Arizona Revised Statutes, any student can attend any public school in Arizona that can accommodate them. Therefore, the Ajo district cannot deny students enrollment because they reside outside of the district, Dooley said.

In addition, school-age children who reside outside of any school district must be provided an education by the county, he said. In this case, Pima County chose to bus students to the Ajo school district.

However, students must still provide documents that show they are residents of Arizona to be able to attend school. Those documents can include a rental agreement, mortgage, utility bill, tax return or any other official document that includes a home address.

The audit by the Department of Education, conducted by Arthur Heikkil, the chief auditor for the department, states that while many of these students provided such documents, many claimed addresses were for uninhabitable trailers, empty lots or abandoned buildings. For other students, visits to their home addresses or phone calls to their listed guardians revealed that the students weren’t actually living there.

It is the definition of residency that is the main point of contention between the state and the school district.

In the audit, the state cites a precedent from a 1959 Arizona attorney general’s opinion that says residency must be established not just through documents but through an actual intent to establish domicile in the state, which includes actually sleeping at the residence and having sufficient possessions for living at the residence.

Dooley said the state is arguing that the 1959 opinion applies to children as well; that is, if they aren’t consistently sleeping at their parents’ or guardians’ listed Arizona home, they aren’t considered residents.

However, Roger Murray, division director of the Pima County probate and criminal unit, said that Arizona law is clear that no matter where minors sleep, their residency status is unequivocally the same as their guardian’s. There are no exceptions, Murray said, even if a student spend most of their time in Mexico, if their legal guardian is a resident of Arizona, the student is also a resident.

The audit also notes also notes that several guardians of the students were either unaware that they were still guardians or admitted to being paid to act as a guardian. In Arizona, it is illegal to establish guardianship of a minor for the sole purpose of being able to attend school in the state.

As for temporary or permanent guardianship, Murray said, a superior court is responsible for rejecting or accepting the reasons for the petition and awarding guardianship accordingly, not the schools.

Ajo

The city of Ajo, population 3,700, sits about 40 miles from the Mexico-U.S. border, with the even smaller and unincorporated communities of Why and Lukeville in between. The median household income is just nearly half of the national average, and there are almost twice as many individuals below poverty level, according to 2000 U.S. Census Bureau data.

Today, the Lukeville port of entry is the main route to Puerto Penasco, better known to American tourists and vacationing college students as Rocky Point, Mexico. In 2009, about 1.2 million people crossed the border at the port, said Brian Levin, chief Customs and Border Patrol officer and public affairs liaison in Tucson.

“There are some people who cross back and forth on a regular basis but most of them are people that are visiting Mexico,” he said.

For the people who live in the area, commuting across the border every day is a matter of survival, Barragan said. She owns a party supply store just across the border in Mexico, but adamantly points out pays property and sales tax because she lives in Arizona.

“It’s not only me, all of the parents, most of them, have businesses in Mexico,” she said. “There are only so many jobs … We don’t have another choice, how are we going to get money?” she said.

Ajo was a copper mining town from the mid-1800s until the 1980s, when the vast open-pit mine shut down. The town’s population of 5,189 in 1980 dropped by more than half by 1990, according to the U.S. Census Bureau data.

Luis Raya has two children who go to school in Ajo. His oldest daughter, an American citizen, decided to go to school in Mexico after some students were disenrolled because of the audit. He lives in a trailer in Lukeville, not far from the border checkpoint, and works at a convenience store within a couple hundred feet of the fence.

Raya, who became a U.S. citizen after 22 years on a green card, said it would be easier for his children, all three of whom are U.S. citizens, to go to the school in Mexico, which is right across the border. Instead, the two youngest wake up very early to get on the bus at 6:30 a.m. and spend a long day at school looking forward to a long bus ride home.

“These kids work really hard to go to school. It’s not like they cross the border and go to school right there,” he said.

Raya said he doesn’t understand why there is a problem with his children going back and forth across the border when they are so close to it and are U.S. citizens.

“All the U.S. is made of people from all other countries, so why are they pointing to this problem so much with the kids?” he said. “If they don’t have school today how are they going to be good citizens later?”

Raya’s and Barragan’s children have been added to the list of children allowed on the Pima County bus heading for Ajo schools every morning. Like the other students still riding the bus, their residency has been verified through a County Certificate of Educational Convenience, said Ricardo Hernandez, chief financial officer for the Pima County school superintendent. The certificate confirms to the Ajo school district that the Pima County Superintendent’s office has reviewed and has a record of their residency documents, he said.

The Ajo school district didn’t use CECs until this year, Hernandez said, something that the Arizona Department of Education criticized in the audit of the district. Hernandez said he didn’t know why they had not been used but that the county only issues CECs upon the direct request of a district. However, the county has always collected residency documents for the students.

“We have been transporting kids from the Lukeville area to Ajo school district for years,” he said. In order for a student to be picked up by the bus, he said, they have to submit a transportation application each year, which requires them to prove that they live in an unorganized territory of the county. In fact, these residency documents that the students have been providing to the county for years are the same documents used to issue a CEC, he said.

Though the standard for being able to ride the bus from the Lukeville area to Ajo schools has remained unchanged, Hernandez said that there are fewer students who applied to ride the bus this year.

“Unfortunately the kind of publicity this received coincided with the conversation with SB 1070. Everybody thought that what we were doing was requiring proof of citizenship or proof of permanent residency … that is not the case” he said, adding, “Because of the publicity this turned off a lot of parents and a lot of kids.”

Dooley said that it was on the recommendation of someone in the county office that the school district never requested county-issued CECs but added that if the district had, the audit probably wouldn’t have happened.

Right now, insurance is paying for the litigation expenses, but if the district had to pay even the $300,000 fine, Dooley said it might have to raise the town’s taxes similar to what has happened in other areas where school districts have had to pay off large lawsuits or fines. The district, under state law, would have two years to pay off the fine, he said, though the district would probably appeal to the legislature to request a special extension to give them more time.

However, Dooley said he believes that his case is strong enough that he would try to appeal to the Arizona Superior Court. All that is a long way off and for now, Dooley’s task is sorting through 15 large binder volumes of evidence from the Arizona Department of Education and preparing his own evidence, including a cadre of supportive parents, Barragan among them, who are willing to testify.

Dooley hopes the parents’ testimony won’t be necessary either and that if the case can be resolved through negotiations during the current recess in the hearings. If not, Dooley said he believes at this point that the proceedings are going in his favor.

“At this point I am guardedly optimistic,” he said. “I think that is as excited as I can get.”