With the national immigration dialogue heating up, many school leaders are expressing concern that Immigration and Customs Enforcement (ICE) agents may show up at the front door of one of their school buildings seeking to arrest or interview a student or requesting students' records. School districts need to be aware of their legal rights and obligations as their decisions can have obvious consequences for students and their families. Further, school administrators need to recognize the bounds of what they can do to protect their students.
As an initial point, district leaders should recognize that for more than 20 years, it has been the policy of ICE (and the Immigration and Naturalization Service before it) not to engage in arrests, interviews, searches or immigration-related surveillance in what it refers to as "sensitive locations" such as schools. Generally, ICE will not engage in enforcement in a sensitive location unless exigent circumstances exist, if other law enforcement activities led officers to the sensitive location, or prior approval is obtained. Examples of exigent circumstances include enforcement actions that involve national security or terrorism; an imminent risk of death, violence or physical harm to any person or property; the immediate arrest or pursuit of a dangerous felon, terror suspect or other individual who presents an imminent danger to public safety; or there is an imminent risk of destruction of evidence material to an ongoing criminal case. The Department of Homeland Security, of which ICE is a part, recently re-affirmed this approach.
In the unlikely event that ICE agents appear at a school, administrators should follow the same policy they would for local law enforcement officers unless the district's policy specifies otherwise. This typically includes verifying the identity of the officer, contacting the student's parent or guardian and attempting to delay any interview or interaction with the student until the parent or guardian arrives. Administrators should avoid confirming whether the student is present in school as well. In the end, however, if any law enforcement officer presents an arrest warrant, administrators who interfere with the execution of the warrant risk criminal prosecution for their actions. Regardless of the circumstances, districts are wise to contact counsel immediately if ICE appears at a school building.
Another concern for district administrators is how to respond to an ICE agent who may request a student's records. The Federal Educational Rights and Privacy Act (FERPA) as well as the Massachusetts Student Records Regulations prohibit the release of educational records without consent except in limited circumstances. There is no specific exception for law enforcement activities unless a subpoena is provided. When a subpoena is presented, both FERPA and the Student Records Regulations require the district to make a reasonable effort to notify the parent (or eligible student) of the subpoena before it complies so there is a reasonable opportunity to seek protective action. In practical terms, this should give administrators comfort in knowing they cannot be required to turn over student records immediately.
Although student records are generally protected, a district may be required to release "directory information" if it has given parents (and eligible students) notice that it may release certain types of personally identifiable information that it has designated as directory information and the parent (or eligible student) has had an opportunity to opt out of having the student's directory information released. It is critical that districts identify to whom directory information will be released when providing the opt-out notice. If law enforcement authorities are not identified among those to whom directory information will be released, even directory information should not be produced to ICE or other law enforcement agencies without a subpoena.
Based on the complexity of the issues involved, we recommend districts should also review and consider amending their policies to ensure they clearly state how an administrator should respond in the event a law enforcement official seeks access to a student. Districts should also review and, if necessary, amend their policies and opt-out notice to ensure they clearly address whether directory information will be released to law enforcement officials.
Please feel free to contact any member of our Education Law Team if you have any questions regarding this update.