What’s a school to do? Undocumented students, sanctuary districts and ICE enforcement
Jollee PattersonMiller Nash Graham & Dunn
ExecutiveOrders on “Protecting the Homeland”
President has issued several ExecutiveOrders collectively called “Protecting the Homeland”Schools most immediately impacted by EO “EnhancingPublic Safety in the Interior of the United States”Federal government will increase enforcement efforts against “removable aliens”Federal government "shall ensure that [sanctuary] jurisdictions … are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes..."
DHS Implementation Orders
On Feb. 21, DHS issued comprehensive policy guidance implementing the Executive Orders, signaling moreintensive lawenforcement:Elimination of mostof the previously exempt categories forenforcement“Sparing” use of parolein lieu of detentionand only inthe case of “demonstrated urgent humanitarian reasons or significant publicbenefit”Higher level of proof for asylum claimsElimination of privacy rights for those in immigrationproceedingsSignificant new resources for enforcementagents and detentioncenters
What about “sensitive location enforcement”
2011 “SensitiveLocation”enforcement policy “ismeant to ensure that ICE officers and agents exercise sound judgment when enforcing federal law at or focused on sensitive locations and make substantial efforts to avoid unnecessarily alarming local communities. The policy is not intended to categorically prohibit lawful enforcement operations when there is an immediate need for enforcementaction …”Onlyapplies toarrests, interviews, searches, and surveillance.“Actionsnot covered by this policy include actions such as obtaining records. documents and similar materials from officials or employees, providing notice to officials or employees, serving subpoenas [etc.]”2017 DHS Orders indicate that “sensitivelocationsguidance” remainsineffect
What is a “sanctuary jurisdiction?”
No common definition – depends on the jurisdiction and contextFor schools, commonly means that district officials:will not provide student or family information to ICE agents except as required by lawwill establish procedural safeguards for ICE agentswill take other actions to support immigrant studentsConcern that “sanctuary” overstates the power of schools to protect students andfamiliesDHS Orders do not address sanctuary jurisdiction
Oregon law regarding “sanctuary”
“Nolaw enforcement agencyshalluse agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws."Executive order extends this to otherstateagencies.Doesnotapply to school districts employees (except if designated law enforcement agents)School districts have to establish their own policy regarding cooperation with federal law enforcement
Rights of undocumented students
Plyler v. Doe– US Supreme Court case affirming the right of undocumented students to attend school“Bydenying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation."“Evenif the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent's misconduct against his children does not comport with fundamental conceptions of justice."
UnderPlyler, schools should not take actions that would discourage enrollment and success of students based on immigration statusDo not ask about immigration statusDo not request or maintain records related to immigration status
Student rights – harassment and bullying
All students are entitled to aschool environmentfree of harassment and bullyingState law requires policy and practices regarding bullying andharassmentInform students and families about how to reportTake concerns seriously and investigatepromptlyIf harassment is found, take effective remedial actionIf concerns arise, be prepared for media attention and potential legal action
Release of education records
FERPA prohibits release of student education records without prior parental consentNo exception thatclearly appliesto ICE enforcement – not a health and safety emergencyDesignated directory informationmaybe released without parental consentCurrent practice regarding release of directory information may only apply to local law enforcementDecide what practice your district will follow for federal agents, and clearly communicate to your schools
Release of education records - subpoenas
Schools must produce education records in response to a subpoena, but FERPA requires “reasonable effort” to notify parents before respondingSchool staff should direct subpoenas to central office to ensure consistent response in accordance with policies
Student interviews by ICE agents
Review policies and practices regarding making students available to law enforcement during the school dayFormal or informal agreements with local law enforcement may not apply to federal agentsSignificant risk in not providing prior notice to parents of law enforcement interviews, except in cases of child abuse, imminent harm or warrant
Student interviews by ICE agents
If an ICE agent comes to school seeking to interview a student, best practice is for school staff to take agent’s contact information and tell him/her that someone will be in touch promptlySchools should not release student information or make students available for interview on the spotSchool should not confirm that student is in attendance
Do sanctuary districts risk loss of federal funds?
Very complexquestion under Tenth AmendmentGenerally understood that federal government cannot require states to assist with federal law enforcementNumerous legal challenges to executive order that purports to sanction states and local jurisdictionsMost federal funds for schools come through congressional appropriation. Substantive changeswouldrequire congressional approval.2017 DHS Orders solicit – but do not require – local law enforcement cooperation with §287(g) program
What about DACA and visa holders?
President indicated intent to review DACA (Deferred Action for Childhood Arrivals) but has not issued any orders orguidance. 2017 DHS Orders “do not affect DACA recipients.”For school staff on visas, be cautious and consult individual legal counselExecutive Order “Protectingthe NationfromForeign Terrorist Entry into the UnitedStates” currently on holdVisa holders from named countries should be very cautious about leaving the U.S.
Best Practices- Records
Update emergency contact information for studentsReviewpolices regardingdirectory informationDirectschool staff to consult with central office before responding to a request for information or a subpoenaAssign central office person to respond to requests to ensure correct and consistent practiceDon’t collect or maintain records related to immigration statusInform community of district policy and practice
Best Practices – LawEnforcement
Review policies and practices on cooperation with local and federal law enforcementRisky to make students available for law enforcement interviews with law enforcement, except in cases of child abuse, imminent harm or a warrantSchool personnel should not confirm attendance status of student before communication with central officeSchool personnel should take agent information and coordinate through central officeReview district policy with local law enforcementInform community of district policy and practice
Best practices – School Climate
Review policies on bullying andharassmentEnsure students are informed about how to report concernsThoroughly investigate concerns of harassment and bullying, take action where substantiatedAffirm importance of safe and supportive environment for all students
Best practices – communicate and be prepared!
Determine district policyCommunicate to your schools, students and familiesRespond to concerns and keep documentationPrepare in advance for media coverage