New America Schools as Immigrant Friendly (“Sanctuary”)
Campuses: Legal Possibilities?
Ann McCollum, Matthews Fox, P.C.
March 2017
I. Introduction
The concept of a “sanctuary campus” evolves from the idea of a “sanctuary city.” There is no single consistent definition of sanctuary city, though its most benign meaning is that a city will not expend municipal dollars to help the federal government in the enforcement of immigration laws. Some cities have taken a stronger stance, vowing to “shield” undocumented immigrants from federal agents even if it means a sacrifice of federal funds and taking on court battles with the federal government.[1] At its core, the concept of “sanctuary” means to provide a safe space or safe environment.
Since the election of President Trump and his expressed commitment to a “deportation force,” his tightening of enforcement of immigration laws, and more recently his executive order announcing as executive branch policy that “jurisdictions that fail to comply with applicable federal law do not receive federal funds, except as mandated by law,”[2] cities and school campuses have reaffirmed their commitment to immigrant welfare and safety from the threat -- perceived or real -- of deportation. Though Trump’s recent executive order did not mention school campuses, especially provocative to colleges and universities is Trump’s promise to end President Obama’s immigration actions, including the Deferred Action of Childhood Arrivals program (“DACA”). (See more detailed discussion of DACA below.) DACA provides some protections to undocumented immigrants who were brought to the U.S. as children by their parents (and thus not by their own actions), aka “Dreamers,” as long as they meet certain requirements. Today Dreamers fear that Trump will reverse course, cancel DACA, and use their personal information in immigration actions against them.
Responding to these fears, colleges and universities have adopted policies intended to affirm immigrant student fears and assure them of a safe learning environment. These policies include such provisions as school law enforcement agents not asking a student’s immigration status and school officials refusing to share student records with immigration officials.[3]
After the November 2016 election, public school districts have begun adopting similar policies and resolutions. For example, the Sacramento City Unified School District (CA) (“SCUSD”), of which one third of students are English Language Learners or non-native speakers who can speak English, began hearing from parents that students feared being deported.[4] The district also saw an increase in hate-speech.[5] These reported feelings and behaviors prompted SCUSD to adopt a resolution declaring itself a “safe haven” school district, stating “The Sacramento City Unified School Board of Education is committed to the success of all students irrespective of their immigration status, ethnicity, race, religion, sexual orientation, ability, sex and gender identity, socio-economic status or beliefs.”[6] Following SCUSD’s resolution, California’s State Superintendent of Public Instruction urged other California schools to follow suit, asking them to “remind families about existing laws that protect them and their students’ records from questions about immigration status.”[7]
If the Network wishes to consider taking a formal stance on the issue for its member campuses, the Network could glean valuable insight and guidance from the “sanctuary movement” at all levels and could consider developing a policy resolution that proactively expresses support and provides relevant information to its undocumented students and their families while complying with applicable state and federal laws.
This paper outlines the current rights of immigrant students (Section II), public schools and immigrant friendly policies or resolutions (Section III), what to do if immigration enforcement agents come on to school campus (Section IV), and options for schools in addressing these issues (Section V).
II. Current Rights of Immigrant Students
The rights provided to individuals under the U.S. Constitution are extended to immigrants – documented or undocumented -- and include:
· First Amendment right to speak freely,
· Fourth Amendment right to be protected from unreasonable searches and seizures,
· Fifth Amendment right to remain silent if one is questioned by law enforcement, and
· Fourteenth Amendment rights to due process and equal protection.
Immigrants also have protections granted to them by legislative law, case law, and agency policy or executive action. The Deferred Action for Childhood Arrivals (“DACA” or Dreamers program) is an immigration policy of the Department of Homeland Security (“DHS”),[8] announced by President Obama on June 15, 2012. As immigration policy of the DHS, DACA reflects the exercise of the federal government’s prosecutorial discretion in enforcing federal immigration laws[9], deferring deportation of and providing work permits to undocumented immigrants who entered the United States as children as long as they meet certain requirements, have submitted an application, and have been accepted into the DACA Program.[10] DACA also provides key protections to those immigrants applying for the program such as a promise that personal information, including addresses and telephone numbers, would not be used against them in a deportation action unless there is a national security or other concern.[11] One intent of DACA is to allow immigration enforcement to focus on higher priority deportation cases.[12] Individuals who meet the guidelines for consideration of DACA but have not submitted an application, who encounter ICE or other immigration enforcement, and are placed into deportation proceedings may be able to access the DACA program.[13]
Undocumented immigrant children also have a right to attend public schools. In 1982, the U.S. Supreme Court ruled that all school-age immigrant children are persons within the law and are thus entitled to equal protection under the law and the right to a free public education provided by the state.[14] The New Mexico Constitution mandates the establishment of a system of free public education “open to all the children of school age in the state.”[15] In New Mexico, a school age person is defined as a person who is at least age five on September 1 of the school year and who has not received a high school diploma or GED, with a maximum age of 21 for a special education student but no maximum age for non-SPED students.[16] Colorado’s State Constitution also mandates the establishment of a system of free public schools open to “all residents of the state, between the ages of six and twenty-one years.”[17]
Regarding privacy, the Family Educational Rights and Privacy Act (“FERPA”) protects the privacy of student records of all students, and a school is prohibited from releasing school records "to any individual, agency, or organization" without the written consent of the parent (or student if age 18 or over) except in limited circumstances (e.g. judicial subpoena, see discussion on relevant FERPA exceptions below).[18] FERPA rights are granted to parents and are automatically granted to the student when he or she is 18 or over (“eligible student”).
Under FERPA, schools may, but are not required to release "directory information" without consent from parents or eligible students as long as the school has provided public notice to parents and eligible students about its potential release of directory information.[19] Directory information includes but is not limited to "student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended.”[20] Within its policy, a school may determine what information it considers directory information and must give parents or eligible student the option to “opt out” of the school’s release of directory information.[21] Before the school releases such information, the school should confirm a parent’s or student’s status on opting out. A school’s policy can also prohibit keeping any record of immigration status and the collection of a student’s place of birth.[22] (See below for discussion of developing a school policy.)
Schools resolving to be an immigrant friendly campus are in part resolving to uphold, affirm and educate students about current laws relating to immigration, student privacy and safety, and an individual’s right to a free public education.
III. Public Schools as Immigrant Friendly Campuses
While the idea of “sanctuary” campus has, until recently, been within the domain of post-secondary schools, in light of President Trump’s campaign and post-election rhetoric and actions regarding immigration enforcement, public school districts across the country have more proactively considered their options on behalf of their immigrant communities. As discussed above, SCUSD passed a “safe haven” resolution.[23] Other public school districts around the country that have passed resolutions or policies regarding the rights of undocumented and immigrant students include Portland Public Schools (OR)[24], Clark County School District (NV)[25], Los Angeles Unified School District (CA) (“LAUSD”)[26], Denver Public Schools (CO) (“DPS”),[27] and Pittsburgh Public Schools (PA).[28] Notably, as a result of a 2006 settlement agreement in Gonzalez ex rel. Doe v. Albuquerque Public Schools[29], Albuquerque Public Schools implemented new policies[30] that affirm and guarantee the right of all students to attend the public schools regardless of immigration status.[31]
Factors common to available public school policies or resolutions and adopted by the public school districts include:
· Non-use of the term “sanctuary” but rather use of terms such as “safe and supportive,” “safe haven,” and “safe zones.”
· Affirmation of and commitment to student safety and safe environments.
· Affirmation of student privacy regarding student information.
· Procedures for employees to follow if immigration agents enter the school premises.
· Provision for community partnerships and equal protection and treatment of students and community members.
· Commitment to staff and employee training on policies related to immigration issues.
The LAUSD resolved further that all district schools, “early ed centers, adult schools, and parent centers are resource and information sites for students and their families” and to create a “rapid response network . . . to assist children whose family members have been detained.”[32] And SCUSD resolved to providing events and opportunities such as a “day of understanding” and “unifying activities.” Of those reviewed, DPS is the only district policy that specifically requires a federal official “to present a valid search warrant issued by a federal or state judge or magistrate” when requesting access to students unless in the case of “very narrow and rare” exceptions outlined in the ICE Sensitive Locations Policy.[33]
IV. Immigration and Customs Enforcement (ICE) on Campuses
Immigration is within the purview of the federal government, and state and municipal entities, such as public schools, are not legally required to participate in immigration efforts by the federal government, even if asked.[34] However, schools should know the boundaries of such “non-cooperation” in federal immigration enforcement.
Pursuant to the ICE Sensitive Locations Policy, in effect since 2011[35], schools are identified as sensitive locations, and ICE will avoid entering school premises for enforcement actions. According to the policy, “any planned enforcement action at or focused on a sensitive location . . . must have prior approval” from specific DHS officials listed in the policy.[36] There are a few exceptions to the ICE policy including when “exigent circumstances exist,” “other law enforcement actions have led officers” to the school, or “prior approval is obtained.”[37] Thus, there is no clear-cut guidance on a school's responsibilities or freedoms if ICE does come onto a school’s campus. On February 21, 2017, the Trump administration released policy directives aimed at broadening the scope of Homeland Security and ICE enforcement actions.[38] However, the ICE Sensitive Locations Policy remains in effect as of March 6, 2017.[39]
Further, the Supreme Court case, Plyler v. Doe[40], extends the right to a free public education to immigrant school-age children. Plyler protects immigrant students from interference in their access to education (i.e. attendance and participation at school). Because of Plyler and ICE Sensitive Locations Policy, ICE will likely not enter a school campus and interfere with a school-aged student’s participation in school by pulling them out of class for questioning nor engage in other enforcement actions on a school campus. However, even with the ICE policy and compelling Supreme Court case law in place, schools are preparing for the potential that ICE policy and behavior will change.
Under the Immigration and Naturalization Act (the “Act”), U.S. Citizenship and Immigration Services (USCIS) agents, formerly INS or the Immigration and Naturalization Service, may question “any alien or person believed to be an alien as to his right to be or to remain in the United States.”[41] However, the Fourth Amendment of the U.S. Constitution protects individuals from warrantless searches and seizures.[42] Thus, for an immigration agent to enter a school to speak with a student, the school can require, pursuant to its policy, that an immigration agent present a valid judicial warrant. A judicial warrant, signed by a judge, authorizing the request to enter a campus to search for a student as reasonable under the Fourth Amendment, is distinguished from an administrative warrant which is simply an authorization by an ICE official. An administrative warrant does not authorize an ICE agent to enter a premises to enforce and immigration action.[43] If federal agents come on campus, the school and its employees should follow the School’s policy addressing this issue. (See discussion on development of School policy below.) Federal agents must also have a warrant or subpoena to access student records.
An exception to FERPA’s protection from disclosure of student records without consent allows for a school to disclose student educational records in compliance with a judicial order or “lawfully issued subpoena.”[44] Under this exception, the school must make a reasonable effort to notify (but here consent is not required) a parent or eligible student of the subpoena for student records prior to compliance, unless the subpoena was issued for law enforcement purposes and the court or issuing agency has ordered that the contents of the subpoena not be disclosed.[45] Importantly, within the 15 exceptions to the requirement of parental consent listed in the regulation, FERPA allows but does not require a school to disclose student records without consent of parent or eligible student.[46] If ICE agents ask for school records of a student, therefore, school personnel should ask to see a judicial order or subpoena and follow the School’s policy regarding handling such a request, which should involve a parent notification process. (See discussion on developing school policy below.) The school’s policy also should include a requirement to notify the school’s attorney to review the subpoena prior to compliance.