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Presented by: Joshua Whiteside Immigration Enforcement, Students, and School Safe Havens CASCWA SCOE SARB Workshop August 31, 2017 Presented by: Joshua Whiteside 2

Big Picture: Schools as a Safe Place to Learn Safe for All Students Big Picture: Schools as a Safe Place to Learn

Is ICE Coming to Your School?

https://www.polleverywhere.com/multiple_choice_polls/06xpVAq9m3URgbk

ICE/DHS “Sensitive Locations” Policy Stated purpose: To ensure no enforcement actions occur at sensitive locations, such as schools Actions covered: arrests, interviews, searches, and surveillance Exceptions: Exigent circumstances Other enforcement actions have led officers to a sensitive location

ICE/DHS “Sensitive Locations” Policy Father arrested by ICE taking daughter to school State Superintendent of Public Instruction requested clarification of the policy Sensitive location policy still in effect

Safe Havens School District Resolutions State Superintendent of Public Instruction Tom Torlakson urges schools to declare themselves “safe havens” for students who are in the country illegally Progression of resolutions adopted between December 2016 to present

https://www.polleverywhere.com/multiple_choice_polls/A6mC01C4CkbpBfW

What does a “safe haven” mean?

Sanctuary Schools Can the Government Withhold Federal Funds from Sanctuary Jurisdictions? President Trump’s Executive Order Subsequent nationwide injunction Attorney General’s memorandum

Plyler v. Doe (1982) 457 U.S. 202 Students may not be denied education based on immigration status.

Guiding Legal Precepts School districts may not ask for information that “chills” undocumented student’s access to an education Enrolling undocumented students Methods for establishing residency and age

Social Security Numbers School may not collect or solicit social security numbers unless required by law.

Law Enforcement Requests How do you handle law enforcement request for copies of student documents?

Law Enforcement Requests California’s historical rule regarding school interaction with law enforcement: cooperation, no obstruction Qualification: Student records laws Qualification: Policy of parental notification Qualification: Confirming law enforcement compliance

Student Records Student records are confidential and cannot be disclosed to unauthorized persons, unless: Parents provide written consent An exception applies to the rule

Student Records Requests Lawfully issued subpoena or court order Parental consent not required before compliance But, reasonable advanced notice of intent to comply

Student Records Requests ICE agents may request student records or information, including records maintained regarding immigration status (if maintained), by way of: Lawfully issued subpoena Valid court order or search warrant Exigent circumstances Potential penalties for interference or “harboring,” etc.

Student Records Requests Local law enforcement: Access to student records and information parallel to ICE School resource officers: Cannot access student records for purposes beyond the scope of function within the district

Amending and Removing Student Records Parents may request that student records be amended. Upon request, the district must decide within a reasonable time whether to amend the records. If the district decides not to amend the records, it must notify the parents of their right to a hearing regarding the request.

Parent Not Available What if a parent does not show up to pick up a student from school?

How does the District approach this with students? Student Free Speech The District receives information that a protest to challenge immigration policy is planned during the school day. The protest organizers encourage people to stay home from work and school to participate in the protest. How does the District approach this with students?

Student Free Speech “It can hardly be argued that… students… shed their constitutional rights of speech or expression at the schoolhouse gate.”

Bullying: A Duty to Protect Students All school staff who witness bullying shall immediately intervene to stop the incident when it is safe to do so.

Practical Steps and Options Be sensitive to impacted communities Have practical and legally compliant support and policies Clarify the scope of schools’ authority and plan of action Facilitate community resources and partnerships

Other Resources U.S. Department of Education CDE CSBA Sample Policies http://familypolicy.ed.gov Privacy Technical Assistance Center http://ptac.ed.gov/ CDE http://www.cde.ca.gov/ds/dp/dataprivacyferpa.asp CSBA Sample Policies 5125 BP and AR Student Records 5125.1 BP and AR Directory Information 5125.2 AR Withhold Grades, Diplomas or Transcripts 5125.3 AR Challenging Student Records

Questions Questions Slide

Take-Aways

Back Slide Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600. Copyright © 2017 Lozano Smith All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client. 524489 30