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There Are Times When Schools Can't Shield Undocumented Families

Immigration rights advocates slammed Education Secretary Betsy DeVos for suggesting that schools can decide whether to report undocumented students and their families to immigration authorities.

While DeVos has since clarified the statements she made before the U.S. House education committee on Tuesday, it's still not entirely clear how much schools can do to actually protect the students.

In their critiques of DeVos, civil rights groups and educators have cited Plyler v. Doe, the 1982 U.S. Supreme Court decision that declared that children are entitled to receive a free public K-12 education in the United States regardless of their immigration status. Under federal guidance, K-12 public schools cannot ask about a child's immigration status and, even if they do know, staff must treat them no differently than U.S. citizen students. That rule, however, does not apply to preschool programs.

While schools must protect the rights and privacy of students, officials also must cooperate with federal officials in some instances. How schools balance those obligations has dogged educators amid concerns about more agressive immigration enforcement during the Trump administration.

In the Los Angeles Unified school system, a so-called "sanctuary" school district, a school board resolution designates school grounds as safe spaces and sets clear limits on immigration authorities' access to campuses. But that same resolution also makes clear that campus police will assist federal agents as required by law.

That's where things can get fuzzy.

While student records are protected under federal student privacy laws, Immigration and Customs Enforcement agents could still access that information, especially if they obtain a court order or have access to local law enforcement records that identify students.

In questioning DeVos at the committee hearing, U.S. Rep. Adriano Espaillat, a New York Democrat, asked about a fight in a Boston school that landed a student in ICE custody, and possibly facing deportation. Immigration advocates suspect that a report from the nonviolent incident tipped off Boston police and federal authorities to the students' immigration status.

"Do you subscribe to that kind of action?" Espaillat asked DeVos.

A 2012 Immigration and Customs Enforcement memorandum—known as the "sensitive locations" memo—prohibits agents from conducting enforcement activities on school campuses unless high-ranking federal authorities give prior approval.

But the memo also allows for agents to make a case that they need urgent access to a school, but oftentimes school officials have standing to push back, Alyson Sincavage, a lawyer with the American Immigration Lawyers Association, told Education Week last spring.

There are times when agents don't need access to a campus to strike fear into immigrant students and families. In a much publicized case, ICE detained a California father in January, moments after he dropped his daugther off at school. In New Jersey, agents made at least two similar arrests this year, the Star-Ledger reported.

In 2017, amid student and family fears about immigration raids that took place in neighborhoods near schools, the Charlotte-Mecklenburg district in North Carolina sought to assure families that schools and bus stops are "considered to be safe from" enforcement activities involving students, but reminded them that the district has no power to control or direct the work of any law enforcement agency.

Related Stories on Undocumented Students

Teachers Rally Around Undocumented Students

How Much Can Schools Protected Undocumented Students?

The Struggles Undocumented Students Face at High School Graduation

In U.S. Schools, Undocumented Youths Strive to Adjust

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