Under Federal law, State and local educational agencies are required to provide all children with equal access to public education at the elementary and secondary level.  Student enrollment practices that may chill or discourage the participation, or lead to the exclusion, of students based on their or their parents’ or guardians’ actual or perceived citizenship or immigration status contravene Federal law.  The United States Department of Justice and the United States Department of Education (Departments) issued guidance in 2014 to remind districts of the Federal obligation to provide equal educational opportunities to all children residing within their district. 

Frequently Asked Questions Regarding School Interactions with the  U.S. Immigration and Customs Enforcement (ICE)

1. If the School Resource Officer (SRO) is a police officer, are they required to report undocumented students?

Generally, SROs are not required to report undocumented students.  However, there is a limited exception which could apply if the SRO is employed by your school district through the county’s local law enforcement and there exists an extraordinary circumstance involving public safety.  

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 added Section 287(g) (hereafter “287(g)”), performance of immigration officer functions by state officers and employees, to the Immigration and Nationality Act.  This section authorizes the Director of ICE to enter into agreements with state and local law enforcement agencies, permitting designated officers to perform immigration law enforcement functions, provided that the local law enforcement officers receive appropriate training and function under the supervision of ICE officers.  Currently, ICE has 287(g) agreements with 40 law enforcement agencies in 16 states.  Check the following website for a list of counties that currently have 287(g) agreements:  https://www.ice.gov/factsheets/287g#signedMOA.  If your county is on this list, you need to check with your local school district or law enforcement agency to see if your school district actually contracts with the county law enforcement agency for SROs.

Even if your school district contracts for SROs with local law enforcement that has authority to perform immigration enforcement function through a 287(g) agreement, schools are considered a “sensitive location” in which ICE officers and agents are to refrain from enforcement actions unless there is an extraordinary circumstance involving public safety (i.e. the commission of a crime).  See http://www.aft.org/sites/default/files/im_uac-educators-guide_2016.pdf for further information on “sensitive locations.”

2. What is the role of SROs in removing undocumented students? 

SROs generally have no role in the removal of undocumented students.  See above response for further information.

3. What are the FERPA protections and are they triggered and if so when?

Under the Family Educational Rights and Privacy Act (FERPA), school districts must maintain the confidentiality of all personally identifiable information in education records related to students.  20 U.S.C. §1232g; 34 CFR § Part 99.  Any and all records, including emails, student files, and personnel information, are generally exempt from disclosure, absent parental consent. However, under FERPA, schools may disclose “directory information” (which does not include social security cards) without consent, but they are required to allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. 

There are several exceptions to FERPA’s protections which apply in limited situations. For example, the Department of Homeland Security and its ICE bureau is permitted to have access to student records in order to monitor the stay of international students pursuant to the Student Exchange and Visitor Information System program, namely, those students in the 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 agents 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’s records.

Further, FERPA permits school districts to disclose student information i) in compliance with a “judicial order or lawfully issued subpoena” (subject to the need to notify the parent in order for the parent to obtain a protective order), 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 limited exceptions, however, would generally not be implicated by an undocumented student who has not engaged in any dangerous activity.

For more information on FERPA protections, see the following websites: http://www.aft.org/sites/default/files/im_uac-educators-guide_2016.pdf , http://www.familypolicy.ed.gov/ferpa-parents-students

http://familypolicy.ed.gov/faq-page/ferpa-school-officials, including the page “Sharing Information with School Enforcement Units and School Resource Officers.”

4. SAT/ACT data that is collected during test taking is that required to be turned over to authorities?

            SAT/ACT data collected during test taking is subject to FERPA requirements just like any other school record of a student’s and is not required to be turned over to authorities by school officials absent any of the applicable FERPA exceptions discussed above.  However, it should be noted that the private non-profits that administer the SAT/Act do collect “optional” personal data, including date of birth, race, social security numbers, and citizenship information of students, as part of the administration of the SAT/ACT, which they then sell to prospective colleges.

5. What are schools obligations if ICE comes to the office and wants access to students and student records?

Access to student records should only be allowed if the requesting agency has a valid court order or subpoena in compliance with FERPA or immigration laws or regulations.  8 U.S.C. § 1225; 34 CFR § 99.31(a)(9)(i).  If ICE shows up at the school office and seeks access to student records 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).  The school district’s attorney may be able to review the subpoena to determine if it is sufficient to implicate the FERPA exceptions discussed above (and whether notice of the subpoena must be given to the parents), and to ensure that the school adequately cooperates with ICE’s subpoena to the extent required by law.  See http://www.acsa.org/Advocacy/Federal-Issues/undocumented-students-families-facts and http://familypolicy/ed.gov/content/may-schools-comply-subpoena-or-cour-order-education-records-without-consent-parent-or. for additional information.

6. What info are schools allowed to collect from parents/families for enrollment?

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.  Thus, the undocumented or non-citizen status of a student (or his/her parents) is irrelevant to that student’s entitlement to public education.  Accordingly, while the school can certainly 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 or birth certificate), as it is not relevant to establishing actual residency within the district. 

Schools may additionally request information to establish a student meets the minimum age requirements, though schools must accept a variety of documents to establish a student’s age, including religious or medical records, bible entries of birth record, or affidavits from a child’s parents.  Schools may not require a birth certificate or social security number be provided as a condition of enrollment.

For more detailed information, see the May 8, 2014 guidance letter jointly issued by the Department of Education and the Department of Justice available at https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerletter.pdf as well as the fact sheet at https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerfact.pdf

Resource Document from 2017 COPAA Conference - What Special Education Attorneys and Advocates Need to Know About Immigration Consequences of School Based Behaviors