Know Your Rights Responding to Immigration-Related Requests for Student Information September 2017

What Is Going On? Increased immigration-related enforcement activities Increased student/family concerns about potential for school-related enforcement action The Denver metro area is home to approximately 130,000 undocumented men, women, and children http://www.denverpost.com/2017/02/09/denver-illegal-population/ Executive orders issued so far signal more intensive law enforcement – eliminated some of the previously exempt categories for enforcement – allotted significantly more resources for enforcement agents & detention centers – etc.

Undocumented Children in Public School United States Supreme Court, Plyler v. Doe: Overturned Texas law excluding illegal immigrants from public education Effect: public schools must offer education without regard to immigration status United States Court of Appeals, Eighth Circuit, Hispanic Interest Coalition v. Alabama: Court of appeals overturned Alabama law requiring students to provide information on immigration status Decision based on chilling effect on education for undocumented children—attending school would create risk of deportation By analogy, ICE subpoenas could create similar chilling effect http://www.cnn.com/2017/02/23/us/public-schools-immigration-crackdown/ Emphasize here that the purpose of this presentation is to prepare teachers for the UNLIKELY event that an immigration official will approach them for access to student or student information.

Schools Are “Sensitive Locations” ICE Sensitive Locations Guidance Remains in Effect Enforcement-related activities are not to be directed at schools, including: Scholastic or education-related activities or events Marked school bus stops while children are present http://www.cnn.com/2017/02/23/us/public-schools-immigration-crackdown/ Emphasize here that the purpose of this presentation is to prepare teachers for the UNLIKELY event that an immigration official will approach them for access to student or student information.

Confidentiality of Student Information Family Education Rights and Privacy Act (FERPA) Generally, FERPA protects all personally identifiable education-related records from disclosure A school may disclose FERPA-protected information in response to a “lawfully issued subpoena” Schools must provide prior notice to family unless specifically directed to keep the subpoena confidential Production in response to a valid subpoena does not violate FERPA http://www.cnn.com/2017/02/23/us/public-schools-immigration-crackdown/ Emphasize here that the purpose of this presentation is to prepare teachers for the UNLIKELY event that an immigration official will approach them for access to student or student information.

Legal Issues: ICE Subpoenas ICE/USCIS usually issue administrative subpoenas Administrative subpoena is only enforceable by court order ICE/USCIS must bring federal court action to require response School (and family) will have an opportunity to oppose production FERPA creates a high burden for production: Information must be important to investigation: “impossible to prove” case without it Government must exhaust means of obtaining information elsewhere before seeking it from the school http://www.cnn.com/2017/02/23/us/public-schools-immigration-crackdown/ Emphasize here that the purpose of this presentation is to prepare teachers for the UNLIKELY event that an immigration official will approach them for access to student or student information.

The Bottom Line A school may produce education records in response to a valid subpoena—doing so will not violate FERPA Production is not necessarily required—there may be valid grounds to oppose production ICE/USCIS personnel may confuse the issue, suggesting that, because production is permitted, it is required This is a policy decision: compliance or opposition (based on good legal grounds) are viable, legal alternatives http://www.cnn.com/2017/02/23/us/public-schools-immigration-crackdown/ Emphasize here that the purpose of this presentation is to prepare teachers for the UNLIKELY event that an immigration official will approach them for access to student or student information.

Example: DPS’s Policy Decision Denver Public Schools’ Board of Education unanimously approved “The Safe and Welcoming School District Resolution” on February 16, 2017:

Specific Issues to Consider Under what circumstances will your schools allow access to students? Under what circumstances will your schools allow access to student records? Under what circumstances (if any) will your schools take legal action to protect student privacy? Should your schools implement policies to support students affected by immigration action?

Give Personnel Detailed Instructions Note that administrative staff will be on the “front line” Staff need clear instructions about what is expected—they are not used to dealing with federal subpoenas Generally, the plan should be immediate referral to inside or outside legal counsel

Example: Training Provided by DPS School secretaries, teachers, and other staff members: Immediately locate a school leader to handle the procedure What to do: Tell the agent that school policy requires you to contact the legal department Tell the agent that the legal department needs certain information in order to expedite review of the request Take notes and/or cell phone photos of the following: Agent’s name and badge number Agent’s supervisor’s name and phone number Purpose of the agent’s visit A copy of any warrants they have Any other documentation that may be helpful ICE agents must identify themselves Sheriff Furman said at a recent town hall meeting that it is difficult to know who they are The ones at the Denver courthouse were not dressed like law enforcement https://www.denverite.com/ice-agents-denver-courthouse-hallway-video-30231/ Agents don’t have a standard uniform, though they wear tactical gear on some operations, and they are allowed to wear street clothes to work, ICE spokesman Shawn Neudauer said in an email.

Example: Training Provided by DPS Ask the agent to wait outside while you contact the legal department to pass on the relevant information Call the legal department immediately at ______________ If you cannot reach the legal department, call the Department of Safety at _________________ NOTE: If the agent is aggressive or uncooperative, call the Department of Safety immediately

ICE Enforcement: Access to Students Emergency exception: If an agent is present and states that there is an emergency or a danger of imminent harm: Comply with the officer’s order Immediately contact the legal department at (720) 423-3393 and/or the Department of Safety at (720) 423-3911 for further guidance Emergency/ exigent circumstances/ lawful order is the ONLY exception

ICE Enforcement: Access to Information Request for documents or information (in-person or written) What to do: Tell the agent that school policy requires you to forward the request to the legal department Contact the legal department at ______________ NOTE: If the agent is aggressive or uncooperative, call the Department of Safety immediately

Other Potential Actions Remind parents to update emergency contact information for students Authorization for emergency contact to make child’s medical and legal decisions Encourage students to utilize school-based services Encourage families to create Family Preparedness Plans Distribute lists of resources for families and students United States Citizen children may suddenly be stranded if their non-citizen parents or guardians are detained for deportation. This is happening all over the country. https://cliniclegal.org/resources/due-process-concerns-associated-placing-immigrant-families-expedited-removal-proceedings?utm_source=CLINIC+Mail&utm_campaign=2bcbda9072-election_Jan27&utm_medium=email&utm_term=0_a33179621a-2bcbda9072-283981845 https://www.nilc.org/issues/immigration-enforcement/everyone-has-certain-basic-rights/ The fact sheet and memo were distributed to the school community here: https://www.dpsk12.org/wp-content/uploads/Student-Family-School-Supports-English.pdf More likely scenario than actual ICE officers on campus is simply (1) enforcement actions happening elsewhere (e.g. parents being detained) or (2) fear of enforcement actions (e.g. decrease in enrollment or socio-emotional impact on students – both immigrant and non-immigrant) – ways to support them

Consider Creation of a Palm Card Contact information for the legal department Contact information for the Department of Safety Information to request from ICE agents Outline of policy and procedure to respond to request United States Citizen children may suddenly be stranded if their non-citizen parents or guardians are detained for deportation. This is happening all over the country. https://cliniclegal.org/resources/due-process-concerns-associated-placing-immigrant-families-expedited-removal-proceedings?utm_source=CLINIC+Mail&utm_campaign=2bcbda9072-election_Jan27&utm_medium=email&utm_term=0_a33179621a-2bcbda9072-283981845 https://www.nilc.org/issues/immigration-enforcement/everyone-has-certain-basic-rights/ The fact sheet and memo were distributed to the school community here: https://www.dpsk12.org/wp-content/uploads/Student-Family-School-Supports-English.pdf More likely scenario than actual ICE officers on campus is simply (1) enforcement actions happening elsewhere (e.g. parents being detained) or (2) fear of enforcement actions (e.g. decrease in enrollment or socio-emotional impact on students – both immigrant and non-immigrant) – ways to support them