A lot of heat is emanating from Washington D.C. over enforcement of laws concerning “undocumented” immigrants. Especially controversial is the possibility of greater action by the U.S. Immigration and Customs Enforcement [“ICE”] bureau, including bureau agents making visits to the schools. This battle has led to competing visions, with Governor Malloy and Commissioner Wentzell issuing guidance with respect to the schools’ ability to restrict action by ICE, with a subsequent rebuttal issued by the White House. Notwithstanding our nation’s continuing political wars, the following should serve to a) remind the schools of their obligations with respect to providing educational services to all students residing within the school district, whether “documented” or not; and b) provide guidance as to student privacy rights and their intersection with potential actions by ICE at the schools.
The right to attend school. As we have advised you in the past, 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. Regardless of whether prior guidance from the Obama administration concerning the rights of immigrant students will be enforced by the new administration, the right of non-documented students to attend school is well-established by the U.S. Supreme Court. Unlike the Obama administration’s prior policy guidance, the U.S. Supreme Court’s decisions cannot be simply vacated by presidential directive or executive order. 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; 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? Notwithstanding heightened fears, it is questionable as to whether ICE will be visiting the schools to inquire about the documented status of students, or to seek information or access to such students. It has been the prior practice of ICE during the Obama administration to treat the schools as “sensitive locations”, and generally not visit or seek access to the schools. Regardless of whether this prior policy remains in effect, schools 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 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, namely, those students in our country pursuant to a “F”, “J” or “M” visa 8 CFR 214.3(g). 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), 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 not constitute 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 school house steps and seeks access to student records or information or the student themselves, the school administration should ask the ICE personnel to identify 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 such student information (besides “directory information”, to the extent permitted by school district policy). 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. For example, the attorney may be able to review the subpoena to determine if it sufficient to implicate the FERPA exception (and whether notice of the subpoena must be given to the parents), and to ensure that the school adequately cooperates with ICE and complies with the subpoena to the extent required by law.
A Final Note: Now may be the time for the school administration to become 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.
If you have any questions, please feel free to contact a member of our School Law practice.