January 18, 2017
Sacramento County District Superintendents
Re: Legal Protections lnvolving Undocumented Students
Since the November 8, 2016 election, concerns have been raised about protecting undocumented students from unwarranted identification. We want to be sure that all districts are clear on current legal protections afforded to students in California. Our legal staff is available to help and provides a SUIT)mary below of how school districts may use current laws to assist and assure their students.
- Children have a right to attend school regardless of their immigration status. States cannot constitutionally deny students a free public education because of their immigration status. (Ply/er v. Ooe, 457 U.S. 202 (1982)). Nor can a state require public schools to deny admission to students not lawfully present in the United States, verify the immigration status of students and their parents or guardians, notify students and parents or guardians of their suspected unlawful status, or report such information to state and federal officials. Such action is preempted and has the effect of denying students a free public education. (League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755, 785-786 (C.D. Cal. 1995) (striking down portions of California's Proposition 187 regarding elementary and secondary schools)).
- Schools should avoid policies that inadvertently violate federal civil rights laws that prohibit public schools from discriminating on the basis of race, color, or national origin. The U.S. Department of Education has warned that schools must avoid procedures that have the direct or inadvertent effect of discriminating on the basis of race, color, or national origin. (U.S. Department of Justice and U.S. Department of Education, Dear Colleague, May 8, 2014, https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerlett er.pdf, citing 28 C.F.R. § 42.104(b)(2), 34 C.F.R. § 100.3(b)(2)). Documents, data, and information collected cannot discriminate against students. Far example, although a school district may ask questions about a student's race or ethnicity to satisfy federal and state reporting obligations, a school district may not deny admission if a student or parent refuses to provide the information.
- Schools should not inquire about a student's immigration status. Questions about a student's immigration status are unnecessary for establishing residency and may violate the Constitution and federal civil rights laws. (See, Hispanic lnterest Coalition of Ala. v. Governor of Ala., 691 F.3d 1236 (11th Cir. 2012) (holding that state law requiring school officials to verify students' citizenshíp and immigration status was unconstitutional)). For this reason, the U.S. Department of Education has advised districts against inquiring about a student's or parent's immigration status. (See, Dear Colleague letter, supra.) The Department also has noted that such questions may have a discouraging or chilling effect on student enrollment. (U.S. Dep't of Justice and U.S. Dep't of Educ., lnformation on the Rights of AII Children to Enroll in School: Questions and Answers for States, School Districts, and Parents, Revised May 8, 2014, http://www2.ed.gov/about/offices/list/ocr/docs/ga-201405.pdf.)
- Schools should avoid requiring documentation that discourages immigrant students from enrolling in school. Requiring certaín documentation (such as social security numbers and birth certíficates) may prevent undocumented students from enrolling in school. Governing boards should consider using other documentation to establish age, residency, and identification numbers.
A governing board of a school district may prescribe many documents to verify proof of age other than birth certificates, including baptismal certificates, affidavits, or "other appropriate means." (Cal. Ed. Code § 48002).A school district may not ban a student from enrolling because the student lacks a birth certificate or has records indicating a foreign place of birth. (See, Dear Colleague letter, supra).
lnstead of requiring social security numbers, schools should assign a unique identífier to students. Recently enacted California legislation prohibits schools from soliciting social security numbers or the last four digits of social security numbers from students or their parents or guardians unless otherwise required by law. (Cal. Ed. Code § 49076.7, added by AB 2097).
- The Family Educational Rights and Privacy Act (FERPA) generally prohibits schools from sharing student education records with lmmigration and Customs Enforcement (ICE) without parental consent, absent a court order or subpoena. FERPA defines education records broadly to include records, files, documents, and other materials that contain information directly related to a student maintained by an educational agency or institution. (20 U.S.C. § 1232g(a)(4)(A). Educational records cannot be released without parent consent, except in specifically designated circumstances. (20 U.S.C. § 1232g(b). Any information related to a student's immigration status is likely contained in educational records and should not be released to ICE without prior parental consent, a subpoena or court order.1 FERPA requires prior notice to parents when responding to a subpoena or court order. (20 U.S.C. § 1232g(b)(2)(B); 34 C.F.R. § 99.31(a)(9)). School districts may designate certain information as directory information, including a student's name, address, and place of birth. (20 U.S.C. § 1232g(a)(5)(A); 34 C.F.R. § 99.31(a)(11)). Schools must notify parents of the information it has categorized as directory information and give parents an opportunity to opt out of disclosure. (34C.F.R. § 99.37). Unless a parent has opted out, a district may release information it has designated as directory information without prior parental consent. However, FERPA does not require a district to release directory information. (See, Letter to Anonymous, 18 FAB 39 (FPCO 2015)).
- School officials may be able to limit ICE enforcement actions on campus. ICE's stated policy has been to avoid enforcement activities in schools absent exigent círcumstances. (U.S. lmmigration and Customs Enforcement, Letter on Enforcement Actions at or Focused on Sensitive Locations, Oct. 24, 2011, https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf.) Such enforcement actions have been challenged as interfering with a student's access to public education, and violating the constitutional protections enunciated in Ply/er. (See, Gonzalez ex re/. Doe v. Albuquerque Pub/. Sch., No. Civ. 05-580 JB/WPL, 2006 WL 1305032 (D.N.M. Jan. 17, 2006) (settling a lawsuit brought by undocumented children claiming that police interrogations on school grounds about their immigration status interfered with their right to access an education))
School officials should consult with school attorneys and administrators if ICE agents attempt to interview students at school. In addition, school districts should review their policies regarding law enforcement interviews on campus. At a mínimum, a school official should verify an ICE agent's credentials; ask the ICE agent why the interview must occur at school; remind the ICE agent of ICE's polícy of avoiding enforcement actions at schools, and inquire why it is not being followed. lf the district cannot stop an interview, it should notify the parents or guardians of the student unless the ICE agent has specifically instructed the district not to do so.
- School officials should not report undocumented students or their families to ICE. To the extent a school knows the immigration status of a student or a student's family, the school should not voluntarily report such information to ICE. Such reporting could discourage students from attending school, and could effectively deny them a public education in violation of the Constitution and federal civil rights laws.
- Schools may help families feel more comfortable by reaching out to them and notifying them they will continue to educate children in a safe, welcoming environment. Students who fear coming to school have higher absenteeism rates. In the first few months following anti-immigrant legislation in Alabama, the Hispanic student absence rate tripled and over 13 percent of Hispanic students withdrew from school. (Letter from U.S. Dep't of Justice, Civil Rights Div., to Ala. State Superintendent of Educ., Dr. Thomas R. Bice, May 1, 2012, https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf.) The U.S. Departament of Education has historically encouraged districts to notify parents of their rights to send children to school and to inform parents that all students who are district residents are welcome to attend. (See, lnformation on the Rights of AII Children to Enroll, supra.)
I encourage school districts within Sacramento County to continue to create a positive learning environment and welcome all students to your campuses. Providing a safe school environment benefits all students. As the U.S. Supreme Court noted in Ply/er, educating all students benefits both students and society. lf you have any questions, please do not hesitate to contact me.
David W. Gordon
Sacramento County Superintendent of Schools