Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney
Dear Legal Mailbag:
It seems that we cannot turn on the television these days without hearing the ongoing debate about travel bans, immigration reform and the presence of undocumented foreign nationals in this country. But I must say that I was still surprised when the issue was raised at my quiet little elementary school. The other day I received an anonymous letter that caused me concern. This letter purports to inform me that I am violating federal law by “harboring illegals” at my school. This anonymous letter identifies three of my students, two siblings and a cousin, as undocumented foreign nationals who are here illegally. Moreover, the author of this terrible letter then berated me for “wasting” public funds by providing educational services to these children, the costs for which the writer claims I may be personally liable.
As you can imagine, I am steamed to get a nasty letter from a coward who is afraid to even sign his or her name. Moreover, the children he mentioned are good school citizens, and though their parents clearly come from modest means, they seem to be involved and caring. But I do want to be responsible and do my job. How do I go about asking these parents to prove that they are citizens entitled to send their children to my school?
Doing My Duty
The answer is simple: Don’t! A student’s status as citizen, legal resident or undocumented, is irrelevant to the question of eligibility for school privileges. As you know, a school-age child is entitled to free school privileges when he or she “resides” in your school district. Some thirty-five years ago, the United States Supreme Court ruled that school-age children are entitled to attend school without regard to their immigration status as a matter of constitutional right. Plyler v. Doe (1982). Thus, the premise of the nastygram is simply incorrect. Those children are entitled to attend your school if they reside within the attendance zone for the school.
Given that fact, your inquiring as to the immigration status of these children would serve no purpose. More generally, as recently shared by the Commissioner of Education, the Office of Civil Rights of the United States Department of Education, in conjunction with the United States Department of Justice, Civil Rights Division, has issued guidance admonishing school officials that inquiring as to citizenship or immigration status may support a claim that they are discriminating against a student in violation of federal law. Commissioner Wentzell, Guidance for Districts Regarding Refugee Students, January 30, 2017. Specifically, Title IV and Title VI prohibit discrimination against persons participating in educational programs on the basis of their race, color or national origin. Asking students or parents about their immigration status invites an inference that school officials may be discriminating against those parents or student on the basis of their national origin, because such information is not relevant to determining whether children are eligible for school privileges, as outlined above.
In these troubled times, some school officials are concerned that they may be confronted by agents of Immigration and Customs Enforcement (ICE), who may ask for information about students or even for access to those students for enforcement actions. Such actions are unlikely, because ICE has established a “sensitive locations” policy that discourages enforcement activities in schools (among other places). However, to be prepared, school officials should know that ICE officials do not have any special rights to demand student information or access to students without a court order or subpoena.
Specifically, school officials may not release personally-identifiable student information (other than director information) to ICE agents except as authorized under FERPA. To be sure, FERPA provides that school officials may release personally-identifiable student information “to comply with a judicial order or lawfully issued subpoena.” However, school administrators typically do not have the requisite legal training to determine the validity or scope of a judicial order or lawfully issued subpoena, and you should not make this determination on your own. Moreover, as a general rule, FERPA requires that school officials must notify parents (or eligible students) of the subpoena before complying so that the parents or eligible students may take protective action, should they choose.
Finally, if ICE agents ask for access to a student for enforcement action, they will need a warrant. Determining the scope and effectiveness of any such warrant, however, is clearly above your pay grade of a school principal. In that extremely unlikely event, you will want to get your superintendent on the telephone, who with district legal counsel can tell you what to do and what not to do in such a case.