Undocumented Students And The Obligations To Cooperate With “ICE” –Take Two with Trump 2.0
Back in 2017, at the dawn of the first Trump administration, there was much concern about how school leaders should address issues involving “undocumented” students including the possibility of visits by the U.S. Immigration and Customs Enforcement [ICE] bureau, to Connecticut schools. As we noted in these pages at that time, Undocumented Immigrants, The Schools And The Obligations To Cooperate With “ICE”: Pullman & Comley, the Connecticut State Department of Education [SDE] issued guidance with respect to the schools’ ability to restrict action by ICE.
It goes without saying that at the commencement of the second Trump administration, and with a flurry of executive orders and other actions addressing illegal immigration, Connecticut schools are now again confronting complicated legal questions regarding the rights of non-citizen students and ICE enforcement response options. While some of what was written in 2017 may still be valid, there are important distinctions, such as the pronouncement that schools and other “sensitive locations” are no longer off limits to ICE enforcement actions. Statement from a DHS Spokesperson on Directives Expanding Law Enforcement and Ending the Abuse of Humanitarian Parole | Homeland Security
The following updated post should serve to 1) remind Connecticut schools of their obligations with respect to providing educational services to all students residing within the school district, whether “documented” or not; and 2) provide guidance as to student privacy rights and their intersection with potential ICE enforcement actions at schools.
The right to attend school. As we have advised in the past, based on Supreme Court precedent immigrant status has absolutely no effect on the right of a student to attend school, as long as the student otherwise “resides” within the particular school district. Specifically, in Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court held that a state may not deny access to public education to any child residing in the state, regardless of whether the child is present in this country legally. As such under the Plyer case, the undocumented or non-citizen status of a student (or his/her parents) is irrelevant to that student’s entitlement to public education. While a school can inquire as to whether a student or his/her parents reside within the town/school district (for example, requiring copies of utility bills or leases to establish residency within the school district), it cannot inquire into the student’s citizenship or immigration status (such as requesting a student’s social security number), as it is not relevant to establishing actual residency within the district.
Cooperation with ICE? While at this point in time it is uncertain as to whether ICE will be visiting Connecticut schools to inquire about the documented status of students, or to seek information or access to such students, school leaders should keep in mind the following should they receive a visit from ICE:
- The Family Educational Rights and Privacy Act (FERPA) protects the confidentiality of student records and personally identifiable student information. There are certain exceptions to this overall grant of student privacy rights. For example, the federal government (namely, the Department of Homeland Security and its ICE bureau) is permitted to essentially override FERPA and have access to student records in order to monitor the stay of international students attending our nation’s schools pursuant to the Student Exchange and Visitor Information System program. However, there is no general exemption to FERPA that grants ICE officials unfettered access to student information. Unless there is an issue concerning a student who has overstayed his/her visa, ICE would not be able to make inquiry of or seek access to an undocumented student.
- While FERPA permits school districts to disclose student information i) in compliance with a “judicial order or lawfully issued subpoena” (subject to the possible need to notify the parent so that he or she may attempt to “quash” the subpoena), ii) in connection with a health or safety emergency, and iii) in connection with a student engaged in a crime of violence or a sex offense; 34 C.F.R. §99.31; these exceptions would generally not be implicated by an undocumented student who has not engaged in any dangerous activity.
- In this context, ICE would have no right to access student records or the students themselves, with the exception of “directory information,” should the school have a policy permitting its release. The release of directory information should only be to the extent permitted by school district policy. Please note: A social security number does notconstitute directory information, and ICE would not be entitled to inquire about social security numbers (or lack thereof) for students.
Response to ICE: If ICE shows up at the proverbial schoolhouse steps and seeks access to student records or information or students themselves, school administrators should ask ICE personnel to identify themselves and the legal basis of their request. Unless there is a legally mandated basis for their actions, they need not and should not be permitted access to student information (besides “directory information,” to the extent permitted by school district policy), or students themselves. It is recommended that if an ICE agent should appear, the school district should follow policies governing school interaction with law enforcement personnel (which may mandate notification of the students’ parents), and the superintendent should be notified immediately before the district considers ANY action. The school’s attorney should then be notified to assess whether there is a colorable/legal basis for the presence of ICE on campus, or a right of ICE to access student information (or students themselves). For example, the attorney may be able to review the warrant or subpoena to determine if it is sufficient to implicate any FERPA exceptions (and whether notice of any subpoena must be given to the parents), and to ensure that the school adequately cooperates with ICE and complies with any warrant or subpoena to the extent required by law. Please note: Depending on the situation, ICE agents may possess and present “administrative warrants” that are not court orders signed by a judge. One should not assume that an “administrative warrant” gives ICE the authority to enter the building or obtain records (or take any other action).
Final Takeaways: Given the clear prioritization of illegal immigration as a federal issue it is essential that school administrators be familiar with relevant school policies and regulations/procedures governing student records/privacy, cooperation with law enforcement personnel, and student residency. In addition, school administrators should familiarize themselves with the above suggested protocols for contacting the superintendent and the school district attorney in the event of an ICE visit to school. Finally, the situation on the ground is fluid, and we will keep your abreast of updated guidance.
If you have any questions, please feel free to contact a member of our School Law practice.
