Know Your Rights
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
2
Undocumented Children in Public School
3
•
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
Schools Are “Sensitive Locations”
4
•
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
Confidentiality of Student Information
Family Education Rights and Privacy Act (FERPA)
5
•
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
Legal Issues: ICE Subpoenas
6
•
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
The Bottom Line
7
•
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
Example: DPS’s Policy Decision
•
Denver Public Schools’ Board of Education
unanimously approved
“The Safe and Welcoming
School District Resolution”
on February 16, 2017:
8
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?
9
Give Personnel Detailed Instructions
10
•
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:
1.
Tell the agent that school policy requires you to contact the
legal department
2.
Tell the agent that the legal department needs certain
information in order to expedite review of the request
3.
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
11
4.
Ask the agent to wait
outside
while you contact
the legal department to pass on the relevant
information
5.
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
Example: Training Provided by DPS
12
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:
1.
Comply with the officer’s order
2.
Immediately
contact the legal department
at
(720) 423-3393
and/or the Department
of Safety at
(720) 423-3911
for further
guidance
13
ICE Enforcement:
Access to Information
•
Request for documents or information
(in-person or written)
•
What to do:
1.
Tell the agent that school policy requires you to
forward the request to the legal department
2.
Contact the legal department at ______________
NOTE: If the agent is aggressive or uncooperative, call
the Department of Safety immediately
14
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
15
Consider Creation of a Palm Card
1.
Contact information for the
legal department
2.
Contact information for the
Department of Safety
3.
Information to request from ICE agents
4.
Outline of policy and procedure to respond to
request
16
Increased immigration enforcement activities have raised concerns among students and families. This guide addresses legal issues and confidentiality surrounding student information, emphasizing the protections under FERPA and the challenges posed by ICE subpoenas.
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Presentation Transcript
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 2
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 3
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 4
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 5
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 6
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 7
Example: DPSs Policy Decision Denver Public Schools Board of Education unanimously approved The Safe and Welcoming School District Resolution on February 16, 2017: 8
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? 9
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 10
Example: Training Provided by DPS School secretaries, teachers, and other staff members: Immediately locate a school leader to handle the procedure What to do: 1. 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 2. 3. 11
Example: Training Provided by DPS 4. Ask the agent to wait outside while you contact the legal department to pass on the relevant information 5. 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 12
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: 1. Comply with the officer s order 2. Immediately contact the legal department at (720) 423-3393 and/or the Department of Safety at (720) 423-3911 for further guidance 13
ICE Enforcement: Access to Information Request for documents or information (in-person or written) What to do: 1. Tell the agent that school policy requires you to forward the request to the legal department 2. Contact the legal department at ______________ NOTE: If the agent is aggressive or uncooperative, call the Department of Safety immediately 14
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 15
Consider Creation of a Palm Card 1. Contact information for the legal department 2. Contact information for the Department of Safety 3. Information to request from ICE agents 4. Outline of policy and procedure to respond to request 16
