Since 1981, the United States has recognized a right to public education regardless of a student’s immigration status. See Plyler v. Doe, 457 U.S. 202 (1982). Under Section 1.240 of the Illinois Administrative Code, “no school system may deny access to its schools or programs to students who lack documentation of their immigration status or legal presence in the United States, and no school system may inquire about the immigration status of a student.” 23 Ill. Admin. Cd. 1.240(b).  

Effective January 1, 2026, Public Act 104-0288 takes this right even further to address denial of a free public education, policies and procedures, disclosure of immigration or citizenship status, and creation of a civil remedy for aggrieved parties. In this E-Note, the impact of Public Act 104-0288 and the changes to the Illinois School Code are unpacked.  

Purpose of Public Act 104-0288 

The Public Act creates a new section of the School Code, codified as 105 ILCS 5/22-105. The purpose is “to secure the right of every child to equal access to a free public education and a school that is safe from intimidation and fear, consistent with the landmark United States Supreme Court decision in Plyler v. Doe, 457 U.S. 202 (1982), as in effect on January 1, 2025, which held that it is unconstitutional for states to deny children a free public education based on immigration status.” 105 ILCS 5/22-105(a).  

To accomplish this, schools are required to “take steps to protect the integrity of school learning environments for all children, so that no parent is discouraged from sending and no child is discouraged from attending school, including from the threat of immigration enforcement or other law enforcement activity on a school campus.” 105 ILCS 5/22-105(a). 

The purpose is achieved in three ways: (1) creation of a civil remedy for aggrieved parties; (2) directions on what schools must not do; and (3) requirements for what schools must do.  

Aggrieved Parties & Civil Remedies  

Starting July 1, 2026, any party aggrieved by conduct that violates 105 ILCS 5/22-105(c) may bring a civil lawsuit. 105 ILCS 5/22-105(e). Prior to discussing what conduct falls under Section (c), the parameters and potential consequences of the civil lawsuit are addressed.  

First, an action authorized under Section (e) must be brought within two (2) years of the alleged violation. There is no requirement for exhaustion of an administrative complaint process before seeking civil remedies.  

Second, willful violations of Section (c)(1), (2), or (3) may result in the court awarding actual damages. Any violation of Section (c) may result in a permanent or preliminary or negative injunction, temporary restraining order, or other order.  

Third, the Court may also award attorney’s fees/costs to the “prevailing party.” The “prevailing party” is defined as any party who obtains some of their requested relief through a favorable judicial judgment or a court-approved settlement agreement, or whose pursuit of a non-frivolous claim is the catalyst for unilateral change by the opposing party relative to the requested relief.  

What Schools Must Not Do Under Section (c)(1), (2), and (3)  

The overarching theme of Section (c) is that:  

“No child may be denied a free public education through secondary school while in this State based on the child’s perceived or actual immigration status or the child’s parent’s or guardian’s perceived or actual citizenship or immigration status.”  

720 ILCS 5/22-105(c) 

Schools are therefore prohibited from the following:  

• Excluding a child from participation in or denying the benefits of any program/activity based on perceived/actual immigration status of the child or their parent/guardian  

• Using policies/procedures or engaging in practices that have the effect of excluding a child from participation in or denying the benefits of any program/activity based on perceived/actual immigration status of child or their parent/guardian, or the effect of excluding the child’s parent/guardian from parental engagement activities or programs. This includes policies, procedures, or practices that: (1) requests or collects information or documentation about a student’s or parent/guardian’s citizenship or immigration status, unless required by state or federal law; and (2) designating immigration status, citizenship, place of birth, nationality, or national origin as “directory information.”  

• Threatening to disclose anything related to actual or perceived citizenship/immigration status of a child or person associated with the child to any person, entity, or an immigration or law enforcement agency. 

• Disclosing anything related to the perceived citizenship/immigration status of the child or any associated person to any other person, entity, or an immigration or law enforcement agency if the school does not have direct knowledge of the child’s or associated person’s actual citizenship/immigration status* 

• Disclosing anything related to the actual citizenship/immigration status of a child or a person associated with the child to any other person or nongovernmental entity if the school has direct knowledge of actual citizenship/immigration status* 

The last two points may not be construed as prohibiting or restricting an entity from sending to/receiving from the Department of Homeland Security or other federal, state, or local governmental entity information about the citizenship/immigration status of an individual under Sections 1373 and 1644 of Title 8 of the U.S. Code  

What Schools Must Do Under Section (c)(4)  

Public Act 104-0288 creates a requirement for schools to develop procedures for reviewing and authorizing requests from law enforcement agents attempting to enter a school or school facility. The deadline for creating these procedures is July 1, 2026.  

At minimum, the procedures must create a process for:   

• Reviewing/contacting a designated authorized person at the school or school facility and the district superintendent’s office or school administrative office, who may contact the school’s legal counsel, and procedures for that authorized person or legal counsel to review requests to enter a school or school facility, including judicial warrants, nonjudicial warrants, and subpoenas  

• Monitoring or accompanying and documenting all interactions with law enforcement agents while on the school’s premises  

• Notifying and seeking consent from a student’s parent/guardian (unless student is over 18 years of age or emancipated) if a law enforcement agent requests access to a student for immigration enforcement purposes, unless such action is in compliance with a judicial warrant or subpoena that restricts the disclosure of information to the parent/guardian. 

The procedures must also comply with Section (c)(1), (2), and (3), as outlined above. 

What Now?  

Schools should be prepared for and aware of the implications behind Public Act 104-0288. This statute will further codify the right to free public education regardless of citizenship or immigration status but also opens the door to civil litigation for any violations. As July 1, 2026, approaches, schools should develop the policies as outlined in the Public Act, confer with legal counsel on the sufficiency of those policies, and prepare to implement them. Schools should, as always, maintain student privacy as required by FERPA and ISSRA, and refrain from disclosing immigration or citizenship status unless permitted under federal or state law, and as outlined in the Public Act.  

Vocabulary  

Many of the terms used in Public Act 104-0288 will have familiar meanings. This vocabulary lesson is from 720 ILCS 5/22-105(b), and applies to the terms as used above:  

• “Citizenship or immigration status” means all matters regarding citizenship of the United States or any other country or the authority or lack thereof to reside in or otherwise to be present in the United States, including an individual’s nationality and country of citizenship.  

• “Law enforcement agent” means an agent of federal, State, or local law enforcement authorized with the power to arrest or detain individuals or manage the custody of detained individuals for a law enforcement purpose, including civil immigration enforcement.  

• “Law enforcement agent” does not include a school resource officer as defined in Section 10-20.68 of this Code.   

• “Nonjudicial warrant” means a warrant issued by a federal, State, or local agency authorized with the power to arrest or detain individuals or manage the custody of detained individuals for any law enforcement purpose, including civil immigration enforcement. “Nonjudicial warrant” includes an immigration detainer or civil immigration warrant as defined in the Illinois TRUST Act. “Nonjudicial warrant” does not include a criminal warrant issued upon a judicial determination of probable cause, in compliance with the requirements of the Fourth Amendment to the United States Constitution and Section 6 of Article I of the Illinois Constitution.   

• “Prevailing party” includes any party:   

• (1) who obtains some of his or her requested relief through a judicial judgment in his or her favor;  

• (2) who obtains some of his or her requested relief through a settlement agreement approved by the court; or  

• (3) whose pursuit of a non-frivolous claim was a catalyst for a unilateral change in position by the opposing party relative to the relief sought.  

• “School” means every public school, school district, and governing body, including a special charter district or charter school, organized under this Code, and its agents, including a contracted party. 

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