1. Understanding Immigration Policies and Their Effects on Campus: A Workshop
February 9, 2018
Jackie Vimo
National Immigration Law Center

2. Outline Sources of Legal Authority in “Sanctuary” School Policies
Family Educational Rights and Privacy Act (FERPA): Limiting ICE’s Access to Information
Fourth Amendment Protections Against Unreasonable Searches and Seizures\
DHS’s Sensitive Locations Memos
City, County, and/or State Laws and Guidance
Additional Elements of School Policies
Best Practices for Creating Safer Environments for Immigrant Students

3. Sources of Legal Authority in “Sanctuary” School Policies
Part I:
Sources of Legal Authority in “Sanctuary” School Policies

4. Sources of Legal Authority
Family Educational Rights and Privacy Act (FERPA): Limiting ICE’s Access to Information
Fourth Amendment Protections Against Unreasonable Searches and Seizures
DHS’s Sensitive Locations Memos
City, County, and/or State Laws and Guidance
Additional Elements of School Policies
The authority for “sanctuary” school policies comes from many sources, including the U.S. Constitution and U.S. Supreme Court cases interpreting it; federal statutes that create rights; federal agency guidance; state constitutions, statutes, and agency guidance; and city, county, and other local ordinances or laws. School resolutions can draw on some common authority, but, depending on the state and locality in which the school is located, may have additional or unique protections to rely upon. Some of the most common sources of authority are discussed below.

5. Family Educational Rights and Privacy Act (FERPA):
FERPA: 20 U.S.C. § 1232g, 34 CFR Part 99
20 U.S.C. § 1232g(b) schools may not release the personal information of a student without the parent or eligible child’s prior consent, with several exceptions
“Personal information v. “Directory Information. Directory information includes the student’s name, address, telephone listing, date and place of birth, among other things.
“Public Notice” and ”Reasonable Time”
Schools should avoid asking students for information such as their place of birth or visa-related information, except where required by law.
provides a legal ground for protecting students’ personal information by regulating when and to whom that information may be disclosed. Since the 2016 presidential election, many students and educators have asked, “Can my school prevent ICE or CBP from accessing students’ personal data?” FERPA provides a significant layer of protection in this realm. FERPA applies to both K–12 and college students, so the analysis that follows is the same as applied to both. The only difference in application has to do with the age of the student. The parent holds rights under FERPA vis-à-vis their child’s information until the child turns 18, at which point the rights transfer to the child, who is called an “eligible child.” Children under 18 therefore rely on their parents to enforce their rights under FERPA, and people 18 and older must exercise their own rights. The main provision of FERPA upon which schools may rely is 20 U.S.C. § 1232g(b), which says that schools may not release the personal information of a student without the parent or eligible child’s prior consent, with several exceptions. None of these exceptions appear to be particularly vulnerable to use by immigration enforcement agents, but we will continue monitoring practices on the ground to see if agents begin using any of these exceptions to circumvent FERPA’s protections.15.
There is also a broad exemption under FERPA, however. The definition of “personal information,” which is the protected information under FERPA, does not cover “directory information.” Directory information includes the student’s name, address, telephone listing, date and place of birth, among other things. In the context of immigration enforcement, place of birth is an especially sensitive piece of information, as foreign birth is something the government has the burden to prove against an unauthorized immigrant in order to deport that person.16 The other information—addresses, dates of birth, etc.—are also sensitive in that ICE or CBP may request that information in order to find and detain the student outside of school or other individuals related to the student. Thus, “directory information” is not benign for individuals who are themselves at risk of immigration enforcement or have family members who are.

6. School Responses under FERPA
Schools should avoid asking students for information such as their place of birth or visa-related information, except where required by law.
Albuquerque Public Schools Resolution :Should an immigrant parent/legal guardian or student, for whatever reason, voluntarily offer a document generated by the Department of Homeland Security or the Department of Justice—such as a passport, resident alien card, or I-94—for identification purposes, the school shall take special care to refrain from recording:
any personal information from the document;
information concerning the type of document submitted;
that a document generated by the Department of Homeland Security or Department of Justice was submitted.
The school shall only record that personal identification was presented
Schools and district personnel shall take immediate action to remove any information regarding the immigration status of a student or a student’s parents/legal guardians from any and all school records.

7. When ICE Comes to Your Door

8. Judicial Warrant Look for: Issued by Court
Signed by judge or magistrate
Date
Address or Premises

9. Completed Judicial Warrant

10. Administrative Warrant

11. Fourth Amendment: Unreasonable Searches Seizures
The Fourth Amendment protects individuals from unreasonable searches and seizures, and states that no warrant shall issue without probable cause
“Reasonable expectation of privacy,”
“Can my school prevent ICE or CBP from physically entering campus?”
Open Campus v. Closed Campus
Dorms
search—school administrators, law enforcement officials, or school administrators in conjunction with law enforcement officials. Cases have found that school administrators conducting a dormitory search on their own does not trigger students’ Fourth Amendment rights, given that students often enter into contracts with the school that allow school administrators to conduct searches and inspections in the dorms. In addition, in some cases where a school administrator or employee assists a law enforcement official in entering a student’s dorm, courts have found that the student’s rights were not implicated. It is only when the law enforcement officer acts independently of the school administration that Fourth Amendment rights come into play.28 This case law underscores the importance of school policies that reaffirm that school police/security are not, and will not cooperate with, immigration enforcement agencies. The clearer the line between school police/security and immigration enforcement, the easier it will be for students to enforce their Fourth Amendment rights in dorms against intrusion by immigration enforcement officials.

12. University Responses Under 4th Amendment
Harvard University wrote a public to all students on November 28, 2016, which includes the following message:
[A]s a matter of longstanding policy, law enforcement officials seeking to enter campus are expected to check in first with the HUPD [Harvard University Police Department] and, in cases involving the enforcement of the immigration laws, will be required to obtain a warrant.
Training security guards, faculty, staff, and Residential Advisors in dorms

13. DHS Sensitive Locations Memo
Hospitals
Schools
Paces of Worship
Public Religious Assemblies (e.g., weddings, funerals)
Demonstrations
Special exceptions for sensitive locations
Someone who poses an imminent threat, such as a national security risk
Immediate pursuit of a felon or person who poses danger to the public
Risk of destruction of property

14. NYC Laws
Executive Order 41 (NYC): “Don’t ask/don’t tell” City Employees/NYPD
A City officer or employee, other than law enforcement officers, shall not inquire about a person’s immigration status unless:
(1) Such person’s immigration status is necessary for the determination of program, service or benefit eligibility or the provision of City services; or
(2) Such officer or employee is required by law to inquire about such person’s immigration status.
Law Enforcement Officers.
a. Law enforcement officers shall not inquire about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented alien.
b. Police officers and peace officers, including members of the Police Department and the Department of Correction, shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity.
c. It shall be the policy of the Police Department not to inquire about the immigration status of crime victims, witnesses, or others who call or approach the police seeking assistance

15. NYS Laws
Executive Order 170 (NYS) : NYS Confidentiality
Prohibits state agencies and officers from inquiring about or disclosing an individual's immigration status unless required by law or necessary to determine eligibility for a benefit or service. Law enforcement officers will also be prohibited from inquiring about immigration status unless investigating illegal criminal activity. This prohibition against inquiring into status includes, but is not limited to, when an individual approaches a law enforcement officer seeking assistance, is the victim of a crime, or is witness to a crime.

16. Best Practices: Creating Safer Spaces for Immigrant Students
Part II:
Best Practices: Creating Safer Spaces for Immigrant Students

18. How to build a safe campus
Components of Sanctuary Policies
Restricting ICE Access
Student Privacy
Student Records
Campus Security
Providing Resources and Information

19. Restricting ICE Access
Establish process for law enforcement and other visitors to request access to school site and any non-public areas of other type of campus
Ask for agent’s credentials, why access is requested, and to see a warrant; refer to Superintendent, General Counsel, or other designated staff
Review warrant to determine if:
is signed by a judge or magistrate (vs. DHS)
specifies address of premises to be searched
is executed during designated date/time range, if any
Observe & record any actions, object if exceeds those authorized by the warrant; take notes, photos, or videos.
Any request by immigration agents for information or to access a school site shall be immediately forwarded to the Superintendent and General Counsel for review and a decision on whether to allow access to the site, and/or a decision on whether the information will ensure District compliance with Plyler and other applicable laws. The request must be provided with adequate notice so that the Superintendent and General Counsel can take steps to provide for the emotional and physical safety of its students and staff.
Immigration agents must provide written authority from ICE instructing them to enter District property and for what purpose as well as a warrant signed by a by a federal or state Judge which specifies the name of the person under arrest.

20. Student Privacy The Family Educational Rights and Privacy Act (FERPA)
School cannot disclose personally identifiable information in student “education records.”
Exceptions: consent, court order, or subpoena
District can disclose “directory information” (including place of birth) without consent unless parents have opted out.
There may also be state privacy laws that are more protective.
The Family Educational Rights and Privacy Act (FERPA) generally prohibits school
districts from providing third parties such as ICE information about students
contained in student records.
More specifically, FERPA prohibits school districts from disclosing personally identifiable
information in a student’s “education records” to outside agencies without parental consent or a
subpoena. A student’s “education records” includes “records, files, documents and other materials
which contain information directly related to a student” and “are maintained by an educational
agency or institution.” If a school has recorded and maintained information about a student
being undocumented—which is not always the case—this information is part of a student’s
education records.
FERPA allows for the release of information from a student’s record to comply with a court
order or subpoena, typically with parental notification, but not consent. However, some
subpoenas may prohibit the district from disclosing the existence or contents of the subpoena to
parents or students.To navigate these nuances, some state education agencies explicitly direct
school districts to consult with their attorneys to review any subpoenas.
School districts may also disclose “directory” information without consent. Directory
information is information “that would not generally be considered harmful or an invasion of
privacy,” and includes the student’s place of birth. Districts must tell all parents which categories
of information the district has designated as directory information
and allow them a reasonable amount of time to request that the
district not disclose any or all directory information about their
child. School districts may not disclose directory information
relating to students who have “opted out” of such disclosure.
School districts can take several measures to prepare for potential requests for information
from immigration agents. First, school districts should explicitly define what information is
designated as directory information under FERPA. Particularly in states where directory data
must be released under state public records laws, school districts should consider excluding place
of birth from directory data to avoid having to reveal this information to ICE. Districts should
also verify that parents have not opted out of releasing directory information before fulfilling any
such requests. In addition, school districts should consider prohibiting employees from including
immigration status in students’ education records. Finally, if ICE makes a request for data from
student records, school districts should insist on a subpoena before releasing any information and
should consult with their school attorney when faced with a subpoena requiring them to produce
information in a student’s records.

21. Protecting Records
No communication with ICE about a student’s immigration status
Parents/students know they can opt out of directory information disclosure
University does not release data without subpoena and legal advice
District personnel shall not inquire about a student’s immigration status, including that of family members and pursuant to FERPA shall not disclose, without parental consent, the immigration status of any student or personal information.  
Any communication to an immigration agency or official initiated by a school or school personnel concerning any student in reference to the student’s real or perceived immigration status is prohibited, unless permission is granted by the student or student’s parent or guardian.
The district/university shall refuse all voluntary information sharing with immigration agents across all aspects of the college/university to the fullest extent possible under the law.

22. Campus Security
Campus security can help create a safe environment for students, educators, staff, and parents. Ensure everyone feels comfortable approaching and working with campus security.
Prohibit from inquiring about or recording any information regarding an individual’s immigration status.
Should not make inferences about a person’s status, e.g. based on race, ethnicity, or driver’s license.
Shall not participate in immigration enforcement efforts. Can help ensure that all procedures are implemented properly.
Campus security are prohibited from inquiring about or recording any information regarding an individual’s immigration status.
Campus police shall create a policy acknowledging that they have no authority to enforce federal civil immigration law and declaring that they will not participate in immigration enforcement efforts of federal authorities.
This includes campus police not holding people on ICE detainers, not responding to ICE notification or transfer requests, not making arrests based on civil immigration warrants, or allowing ICE to use campus facilities for immigration enforcement purposes.

23. Providing Resources and Information
Support for undocumented, DACAmented and Muslim students
Create resource and info centers
Pay for legal representation of students and family members facing deportation
Create rapid response plan for afterschool program should immigration agents arrive and/or detain a student’s parents
Protection for teachers and staff who support immigrant students
Train teachers, administrators & staff on response plan
Language access
Protections from bullying
Resolved further, that the Superintendent shall establish all K-12 school, early education centers, adult schools, and parent centers be established as resource and information sites for District students and their families;
Resolved further, That the Board encourages the Superintendent to increase and enhance partnerships with community-based organizations and legal services organizations who provide resources for families facing deportation;
Resolved further, That the Board directs the Superintendent to create a rapid response network to assist students who have been detained, or whose family members have been detained,
a plan for training teachers, administrators and other staff on how to respond to ICE personnel who are requesting information about students and families and are attempting to enter school property. The plan shall also include procedures for notifying families about ICE efforts to gain information about students and families, and how to support students whose family members have been displaced because of ICE. This plan shall be communicated to all school district families in all supported languages.

24. Safe Program policies: Limits and risks?
Administration threats to deny funding to states/ cities/ counties that violate federal law, prevent or hinder federal immigration enforcement.
Cities argue: Executive lacks this authority; any conditions must be related to purpose of funding; and federal government cannot coerce localities into enforcing federal immigration laws.
School programs can create a safe environment for students, but cannot guarantee blanket protection from DHS or ICE enforcement activities.
Safe school policies are grounded in a state’s power and obligation to provide access to education, and are fully consistent with federal law.

25. What educators and staff can do
Make sure students know their rights – let all students and their parents know where they can find information on their legal rights. Distribute “know your rights” materials.
Maintain a list of resources including local immigrants’ rights organizations, pro bono attorneys, and social workers to share with students and parents
Become an ally who stands in solidarity with students and their families
Support a safe schools resolution and policy
For free or low-cost immigration help:

26. Jackie Vimo