Photo by Element5 Digital on Unsplash
By Pamela Duran
Uncertainty and fear are two feelings that are prevalent in the immigrant community.[1] President Donald J. Trump’s administration has emphasized that one of its primary objectives is to reduce illegal immigration, which has consequently brought increasing changes (1) to policy and more notably (2) in how agencies enforce said policies.[2] These polices have a dangerous effect in public schools where many immigrant children are legally obtaining their education.[3] Their aspirations are being threatened by the looming fear that the U.S. Immigration and Customs Enforcement (ICE) will be acquiring information about their lives through school resource officers; however, this acquisition of information leads to negative consequences and a violation of the students’ constitutional rights.[4]
President Trump has signed several Executive Orders, and judges have established precedent through case law, that affect the immigrant population in different ways.[5] One such example is the Executive Order of January 25, 2017, in which President Trump delineated how he was going to enhance public safety in the interior of the United States.[6] The order announced a substantial broadening of immigration enforcement powers via ICE.[7] Most importantly, the order revitalized what is known as the 287(g) program of the Immigration and Nationality Act (INA), which authorizes state and local police officers to collaborate with the federal government to enforce federal immigration laws.[8] The program had been dormant after years of funding cuts and low levels of participation by law enforcement agencies.[9] Under this program, the government encourages ICE to enter into agreements with local law enforcement agencies.[10] These agreements do not involve the school administrators; local law enforcement and ICE unilaterally enter into them.[11] There is no communication between schools and local law enforcement or with the community at large.[12]
Under this order, ICEwas to increase its presence in America’s schools and create more agreements with local law enforcement, which allowed for an increase in the number of school resource officers (SROs) in public schools.[13] SROs are law enforcement officers deployed to schools nationwide through a U.S. Department of Justice program called Community Oriented Policing Services (COPS).[14] They are primarily responsible for maintaining safety and preventing crime in public schools.[15] Currently, as many as 20,000 police officers work inside American schools, and many schools, due to multiple factors, have opted to exclusively use these SROs as opposed to having more school counselors or mental health workers.[16] Although local police or sheriff’s agencies, who historically have had few ties to immigration authorities, directly employ these officers, since the order was enacted, ICE has been increasingly training local law enforcement officials in immigration enforcement and has given them federal authority to perform the functions of an immigration officer.[17] Therefore, SROs have quickly become a channel through which ICE is gaining personal information about students and their families, including their immigration status,[18]even though their immigration status is supposed to be protected under Plyler v. Doe and federal student privacy laws, such as the Family Educational Rights and Privacy Act.[19] Schools are not allowed to share certain personal information about students without their parent or guardian’s consent, and schools may not deny access to public education to any undocumented or non-citizen student.[20]
School administrators or superintendents who allow student information to be shared with ICE may be violating the FERPA, which protects the confidentiality of school records.[21] The central provision of FERPA upon which immigrant students and their parents may rely says that schools may not release the personal information of a student without the parent or eligible child’s prior consent to any outside agency.[22] Additionally, under Plyler v. Doe, the Supreme Court recognized a constitutional right of access to education for all students, regardless of their immigration status.[23] Any action that might deter access to schools, including engaging in activities that increase absenteeism of students, may violate Plyler.[24] Plyleralso protects students and their parents from having to provide birth certificates, Social Security information or other personal information as part of enrollment, which is important because undocumented students might lack those forms of identification.[25]
Regardless of these protections, under the umbrella of this program, students around the United States are being detained and deported because of questionable evidence these resource officers submit.[26] ICE is using school records to arrest immigrant students who have not been charged with any crime but who might be “suspected”[27]of being involved with gangs.[28] For example, in a prominent case from Long Island, ICE used information from a school resource officer regarding classroom drawings and other incidents in its report to ICE officials, which made inferences about how this student might be affiliated with gangs.[29] These cases have demonstrated how schools’ administratorsare unaware of the purpose of these agreements with ICE under the 287(g) program.[30] In fact, it was not until after this case had gained attention that the Long Island school district finally demanded to see the contract to clarify the duties of the SROs working in the schools.[31]
School’s administrators do not fully comprehend the specific duties that these school resource officers have under the law, particularly the duties to work closely with ICE and report any “suspicious activity” related to the students.[32] Consequently, public schools should review these formal agreements between local enforcement and the federal government and start defining clear guidelines.[33] The current information sharing policy is causing anxiety among immigrant children who are trying to obtain an education, therefore decreasing their overall attendance.[34] Not to mention, students’ parents or guardians may be held criminally liable for truancy, jurisdictions may be required to involve a child protective agencies after a certain number of absences, and students may be referred to court.[35] These consequences are particularly concerning for undocumented students and their families, who might be sought after by officials cracking down at courts or whose status might be discovered through interactions with the court system.[36]
Navigating the current administration’s immigration policy changes has proven to be difficult for schools.[37] A need for full transparency from ICE and local law enforcement regarding the extension of the SRO duties and education for school administrators about how these agreements are established are critical.[38] It is vital for public schools administrators to be aware of theprotections available to undocumented students and their families.[39] Presently, the manner in which SROs directly share information with ICE may be violating undocumented students’ constitutional rights.[40] These students deserve an education—in fact, it is their constitutional right. Students should not have to avoid school for fear of deportation. School must remain a safe place for learning, which is vital to the growth and development of all children.
[1] See Wendy Cervantes, Rebecca Ullrich & Hannah Matthews, Compromising Our Nation’s Future, Our Children’s Fear Immigration Policy’s Effects on Young Children 4 (2018), available at https://www.clasp.org/sites/default/files/publications/2018/03/2018_ourchildrensfears.pdf (stating that their report revealed a distressing picture for young children characterized by fear, stress, and disruptions of their normal lives).
[2] See, e.g, Immigration, The White House, https://www.whitehouse.gov/issues/immigration/(last visited Mar. 29, 2019).
[3] See Plyler v. Doe., 457 U.S. 202, 226 (1982) (stating that the Court does not perceive a national policy that supports the State in denying these undocumented immigrant children an elementary education).
[4] See Lauren Camera, When Police Partner with ICE, Hispanic Students Disappear,U.S. News (Nov. 26, 2018, 4:23 PM), https://www.usnews.com/news/education-news/articles/2018-11-26/when-police-partner-with-ice-hispanic-students-disappear.
[5] See generally In re A- B-, 27 I. & N. Dec. 316, 344 (A.G. 2018); Exec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017); Exec. Order No. 13767, 82 Fed. Reg. 8,793 (Jan. 25, 2017).
[6] SeeExec. Order No. 13768, 82 Fed. Reg. 8,799 (Jan. 25, 2017).
[7] Id. at 8,800 (stating that the Secretary, through the Director of ICE, “shall […] take all appropriate actions to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform law enforcement functions described in section 287 of the Immigration and Nationality Act (INA) (8 U.S.C. 1357)”).
[8] Id.
[9] See Under Donald Trump, More Cops Are Acting as Immigration-Enforcement Agents, The Economist, https://www.economist.com/graphic-detail/2018/07/27/under-donald-trump-more-cops-are-acting-as-immigration-enforcement-agents (last visited Apr. 12, 2019).
[10] SeeExec. Order No. 13768, 82 Fed. Reg. 8,800 (Jan. 25, 2017) (asserting that “the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA”).
[11] See What are 287(g) Agreements?, ACLU Md., https://www.aclu-md.org/en/what-are-287g-agreements(last visited Apr. 12, 2019).
[12] Id.
[13] Id.
[14] See Supporting Safe Schools, Office of Cmty. Oriented Policing Servs., U.S. Dep’t of Justice,https://cops.usdoj.gov/supportingsafeschools(last visited Apr. 8, 2019) (explaining that the SROs are similar to other police officers and have the ability to perform all of their same duties like making arrests).
[15] Id.
[16] See Education Under Arrest: The Case Against Police in Schools,Justice Policy Institute 1 (Nov. 2011), available at https://edsource.org/wp-content/uploads/old/educationunderarrest_fullreport.pdf.; Mark Keierleber, Trump Order Could Give Immigration Agents a Foothold in US Schools, The Guardian (Aug. 22, 2017, 6:00 AM), https://www.theguardian.com/us-news/2017/aug/22/trump-immigration-us-schools-education-undocumented-migrants.
[17] SeeKeierleber, supra note 16.
[18] See Hannah Dreier, Long Island Schools Move to Curb Police Role in Detaining Immigrant Students, ProPublica (Jan. 10, 2018, 5:00 AM), https://www.propublica.org/article/long-island-schools-move-to-curb-police-role-in-detaining-immigrant-students [hereinafter Dreier, Long Island Schools].
[19] See Family Educational and PrivacyRights Act, 20 U.S.C. § 1232g (2019) (explaining that no funds shall be made available “under any applicable program to any educational agency or institution that has a policy or practice of permitting the release of educational record without the written consent of their parents”); Plyler v. Doe., 457 U.S. 202, 229 (1982) (stating that undocumented children are “basically indistinguishable” from legally resident alien children).
[20] See generally Family Educational and Privacy Rights Act, 20 U.S.C. § 1232g (2019); Plyler v. Doe., 457 U.S. 202, 229 (1982).
[21] See Family Educational and Privacy Rights Act, 20 U.S.C. § 1232g.
[22] Id.
[23] See Plyler v. Doe., 457 U.S. 202, 229-30 (1982) (recognizing that a state may not deny free public education to undocumented children).
[24] See id. at 234 (Blackmun, J., concurring) (explaining how “denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage”).
[25] See id. at 220.
[26] See Complaint at 1, Center for Law and Education, Inc. v. City of Boston, No. 1884CV01938 (Super. Ct. Suffolk Cty. Mass. June 21, 2018), available at https://www.cleweb.org/sites/cleweb.org/files/assets/CLE%20et%20al.%20v.%20City%20of%20Boston%20-%20Boston%20Public%20Schools.pdf.
[27] See Hannah Dreier, He Drew His School Mascot- and ICE Labeled Him a Gang Member, ProPublica and the N.Y. Times (Dec. 2018), https://features.propublica.org/ms-13-immigrant-students/huntington-school-deportations-ice-honduras/[hereinafter Dreier, He Drew His School Mascot] (stating that this suspicion is questionable, and often unreliable).
[28] See id.
[29] Id. (noting that the student had drawn the number 504 and devil horns; the devil was the school mascot, however).
[30] SeeDreier, Long Island Schools, supra note 18.
[31] Id.
[32] Id.
[33] Id.
[34] SeeCamera, supranote 4.
[35] See, e.g., D.C. Code§ 38-203(d) (2019) (“The parent, guardian, or other person who has custody or control of a minor covered by § 38-202(a) who is absent from school without a valid excuse shall be guilty of a misdemeanor.”); D.C. Code § 38-208(c)(1) – (2).
[36] See Am. Civil Liberties Union, Freezing out Justice: How Immigration Arrests at Courthouses are Undermining the Justice System 1 (2018), available at https://www.aclu.org/sites/default/files/field_document/rep18-icecourthouse-combined-rel01.pdf.
[37] SeeDreier, He Drew His School Mascot, supranote 27.
[38] See Camera, supranote 4.
[39] SeeDreier, He Drew His School Mascot, supranote 27.
[40] See Dreier, Long Island Schools, supra note 18.