Approximately 1.4 percent of K–12 students in the U.S. are undocumented. School officials might wonder about their legal obligations when serving this population of students. For example, are schools permitted to require a Social Security number during enrollment? Can school officials refuse to allow federal law enforcement on campus? Will turning over student data to law enforcement violate privacy laws? Let’s take a look at the current status of the law with regard to public school students who are undocumented.
In 1982, the U.S. Supreme Court decided that public school officials may not deny a child access to a public education based on their immigration status. At issue was the 14th Amendment’s Equal Protection Clause of the U.S. Constitution, which says in part, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” Under this provision, the court ruled that states cannot deny such an education to undocumented children without “showing that it furthers some substantial state interest.” The court noted that when schools deny undocumented students the same “free public education that it offers other children,” it would “foreclose any realistic possibility that they will contribute even in the smallest way to the progress of our Nation.” The court also observed that holding children accountable for their parents’ actions “does not comport with fundamental conceptions of justice.”
In a May 2011 “Dear Colleague” letter, the U.S. Department of Education and the U.S. Department of Justice reminded school administrators of their legal responsibilities and referenced the Plyler decision in this guidance (see www2.ed.gov/about/offices/list/ocr/letters). It stressed that school officials may not, for example, deny enrollment to students who are unwilling or unable to provide a Social Security number, or who provide a foreign birth certificate at the time of enrollment. In May 2014, these same agencies released a “Questions and Answers” document for public schools, which outlined what schools can request when students enroll, among other issues (see www.justice.gov/sites/default/files/crt/legacy).
Some states and localities have passed measures and adopted unofficial policies that arguably undercut the Plyler decision. To illustrate, the state of Alabama in 2011 attempted to enact laws that require school officials to determine the immigration status of newly enrolled students and to submit an annual report to the state board of education that included data obtained under the requirement. The state law was challenged, and a federal appellate court blocked the implementation of the provision—a settlement agreement was reached in 2013. Likewise, at least 55 schools in New Orleans were accused of having illegally collected information from undocumented students during enrollment. More recently, during testimony to a House committee, U.S. Education Secretary Betsy DeVos suggested school districts may permit their personnel to report suspected undocumented students and their families to the Immigration and Customs Enforcement agency, but she later clarified that “schools are not, and should never become, immigration enforcement zones.”
In response to recent attention on immigration enforcement, some school districts have adopted policies to try to protect students who are undocumented. In doing so, their school boards may have declared themselves “sanctuaries” or “safe zones.” Some districts have chosen not to use this terminology, but still take similar approaches. These declarations are meant to offer a welcoming environment to all students. School officials believe such declarations are necessary, as they find that some families keep their children home from school for fear of deportation.
To illustrate, in the Los Angeles Unified School District, a resolution was passed urging the superintendent to strengthen protections for students. In California, 113 school districts had declared safe zones in 2017. Likewise, the Denver Public School’s board of education passed a resolution to do everything in its lawful power to protect students. In Pittsburgh, the school board noted that its resolution declaring the district a sanctuary was largely symbolic and was intended to send a message to students that they will be supported. Sometimes the policies are more detailed, such as saying federal immigration agents would need a warrant to enter the campus; others require permission from the superintendent to enter.
School districts will want to ensure student privacy, but at the same time cooperate with law enforcement. School officials question whether recent measures might also lead to potential violations of the Family Educational Rights and Privacy Act (FERPA), which prevents schools from disclosing information in student files without parental consent. FERPA protects students’ educational records from third parties—including government agencies. There are some exceptions, which include a court order. However, while FERPA recognizes the need to comply with a judicial order or lawfully issued subpoena, there is no language in the law permitting access to student information by immigration and customs enforcement agents. Moreover, FERPA does not allow school officials to indiscriminately access records without a legitimate educational interest. Thus, it would seem that school personnel who investigate immigration status through students’ records and disclose such information would violate the law.
In light of recent immigration events, it is understandable that school leaders feel a greater degree of apprehension when it comes to students’ rights. Unequivocally, the responsibility for adhering to the law rests largely on school leaders, especially building principals. At a minimum, school principals need to consider (a) whether legal safeguards have been properly instituted and (b) whether all school personnel are fully aware of their legal responsibilities and restrictions with regard to treatment of undocumented parents and children. Principals are also advised to be thoughtful in how information is managed and communicated, and to establish legally sound procedures for handling these sensitive situations.
School leaders have a duty to demystify false notions, such as reporting and advising personnel on legal standards that are still enforceable under Plyler and other rulings. While the actions of parents are situated at the center of the immigration debate, the physical, emotional, psychological, and academic strains on the well-being of the child have been mostly an afterthought. Immigrant children are less likely to feel safe and secure and lack an internal locus of control.
Some suggest that children’s rights may be shifting from an authority-driven orientation to a more holistic framework that not only more broadly captures the interests of children, but also is empowering. Under this new “law of the child,” principals take greater interest in how children interact with peers and nonparental adults, their involvement in civic practice, their expectations of privacy, access to information and ideas, and how they are forming their identity.
Mario Torres, PhD, is professor at Texas A&M University in College Station and has published numerous articles on students’ Fourth Amendment rights. Suzanne E. Eckes, PhD, JD, is a professor at Indiana University in Bloomington, co-author of the forthcoming book Legal Rights of School Leaders, Teachers, and Students, and president of the Education Law Association.
Balingit, M. (2018, June 4). Lawmakers, civil rights groups call for Betsy DeVos to set the record straight on immigration and schools. The Washington Post. Retrieved from www.washingtonpost.com/news/education/wp/2018/06/04/lawmakers-civil-rights-groups-call-for-betsy-devos-to-set-the-record-straight-on-immigration-and-schools/?utm_term=.f7f3da927d77
Dailey, A. C. & Rosenbury, L. A. (2018). The new law of the child. Yale Law Journal, 127, 1448-1537.
Lal, P. & Phillips, M. (2018). Discover our model: The critical need for school-based immigration legal services. California Law Review, 106, 577-90.
Plyler v. Doe, 457 U.S. 202 (1982).
Strauss, V. (2014, Nov. 21), How many K–12 students are illegal immigrants? The Washington Post. Retrieved from www.washingtonpost.com/news/answer-sheet/wp/2014/11/21/how-many-k-12-students-are-illegal-immigrants/?utm_term=.749789b926d5
United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012).