Education Law Notes  

Last week, we wrote about how school leaders should address issues involving “undocumented” students, including the possibility of visits by the U.S. Immigration and Customs Enforcement (ICE) agents to Connecticut schools in the blog, "Undocumented Students And The Obligations To Cooperate With “ICE” --Take Two with Trump 2.0." Today, the Connecticut State Department of Education (SDE) issued guidance with respect to the Connecticut K-12 public  schools’ ability to address action by ICE. For the most part, the guidance that we have given is consistent with the State’s guidance. Here are the highpoints.

Continuing Legal Responsibilities.  The SDE reminds schools of their pre-existing legal responsibilities.  As it notes, state and federal law continue to protect a student’s right to attend public schools, regardless of their immigration status, and Connecticut schools have no obligation to collect or maintain information on the immigration status of students or their family members. In addition, the federal Family Educational Rights and Privacy Act (FERPA) continues to protect personally identifiable student information, including student and family names and addresses. As such, any requests for student information by any entity remain subject to the provisions of FERPA, and the SDE reminded schools that they should seek legal guidance and adhere to the scope of these protections.

Procedures On Access to School Grounds and School Records (Including Visits by ICE Agents). As schools “routinely restrict access to school grounds during the academic day for the protection of students and staff and to limit disruptions to the learning environment,” the SDE notes that “standard procedures should address restrictions on access by individuals who come onto school grounds, obtaining proper identification, and determining the purpose of a visit.”  In this context, the SDE advised schools to “consult legal counsel to ensure that procedures are complete and up to date, and to review these procedures with staff,” with a specific emphasis on such procedures “maintain[ing] a learning environment that protects the safety and privacy of students and their families.”

The SDE encourages schools “to include protocols, consistent with district policies and procedures regarding third party access to information and non-public areas, that address these situations specifically to provide assurance that plans are in place, laws will be adhered to, and rights will be protected.”  The SDE suggests the following for such protocols:

• Request and record immigration agents’ identification, including their name, badge or ID number, telephone number and business card.
• Designate a school official(s) as the point person for requests and visits by agents.
• Direct immigration agents who request access to records, information, non-public areas of a school, or a member of the school community to the designated school official.
• Ask an agent if they have a judicial warrant to support their request and, if so, to produce such warrant.
• Review any warrant or other materials produced carefully to determine what it authorizes the agent to do and who issued it. As we have noted in our prior posts and alerts, the SDE acknowledges that immigration agents may have “administrative warrants” or orders that are not court orders issued by a United States district court judge or magistrate and that may not authorize agents to access materials or enter areas where access is restricted to the public.
• Consult with legal counsel (or counsel’s guidance) on how to proceed depending on:
  • the nature of a request;
  • whether a warrant is produced;
  • the details of a warrant;
  • the judicial or administrative nature of any the warrant;
  • whether an immigration agent claims exigent circumstances; and
  • any other considerations identified by legal counsel.

• Maintain a calm and cooperative manner to avoid: 1) escalating the situation; 2) increasing anxiety among the staff and students; or 3) being perceived as obstructing or interfering with any lawful activities.
• Record details regarding the visit, any access the agents gained to information, records, areas, or individuals, whether that access was granted and, if so, who granted such access.

Student and Family Resources. The SDE “encourages” schools to make resources available in multiple languages, informing students and families of their rights and the legal and social services that are available within the community. The SDE indicates that it “will curate and share resources in the near future” to supplement the schools’ efforts. Finally, in light of the fact that information that may be reported through the media (including social media) can result in “increased anxiety” among families, students, and staff, schools are “encouraged to make counselors and mental health support services available to students and staff who may be experiencing stress or anxiety stemming from this information and specific activity that may affect your school community.”   

Final Thoughts.  As we have noted, it is critical that school administrators be familiar with relevant school policies and regulations/procedures governing student records/privacy, cooperation with law enforcement personnel, and student residency.  In addition, school administrators should familiarize themselves with the above suggested protocols for contacting the superintendent and the school district attorney in the event of an ICE visit to school. Finally, while our firm has drafted protocols to address these circumstances, the situation on the ground is fluid, and we will keep your abreast of updated guidance.

If you have any questions, please feel free to contact a member of our School Law practice.