In a resolution approved by the Los Angeles school board in February 2016, the district directed teachers and staff not to allow U.S. Immigration and Customs Enforcement (ICE) agents on campus or into any school building without explicit permission from the superintendent and district attorneys. It instructed district staff not to inquire about a student’s or family’s immigration status, nor to provide information about them to ICE.

Similarly, Portland (Ore.) Public Schools moved to protect students from potential immigration enforcement in a November 2016 resolution, blocking ICE officials from entering schools or accessing student records without first working through top district officials. The superintendent and/or general counsel may ask for the ICE agent’s credentials, ask the agent why he or she is requesting access, and ask the agent what evidence of reasonable suspicion exists.

And on March 17, 2017, New York City Mayor Bill de Blasio and schools Chancellor Carmen Fariña released what the mayor’s office described as a “detailed protocol for responding to law enforcement requests from federal agencies, including immigration authorities.”

“Clear ICE-related guidance from DOE for families and educators is one way we are actively building a sanctuary city,” said Carlos Menchaca, chair of the Immigration Committee of the city council.

Other school districts have publicly designated themselves as sanctuary districts or are considering doing so. While there is no statutory definition of this term, it is associated with a commitment by school officials to:

• Protect student data from federal agencies, as permitted by law.
• Create policies to explicitly acknowledge that the district has no authority to enforce federal immigration law.
• Provide resource centers for students and parents to learn about their immigration and education rights.
• Enhance partnerships with community organizations to create resources to assist students with immigration-related family issues.

Other districts have made these kinds of commitments without declaring themselves as having sanctuary status.

Arguably, all public schools are sanctuaries for undocumented students because the U.S. Supreme Court has ruled that they have a right to be educated in public schools like any other school-age child who resides in the school district.

In Plyler v. Doe (1982), the Supreme Court invalidated a Texas law that denied state funding to schools to educate undocumented students and authorized schools to deny enrollment to undocumented students.

The court held that the U.S. Constitution guarantees equal protection under the law for undocumented children and explained that allowing undocumented students to be denied an education would “deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our nation.” As Plyler makes clear, the undocumented or non-citizen status of a student (or his/her parent or guardian) is irrelevant to that student’s entitlement to an elementary and secondary public education.

After New York State officials became concerned that admissions policies in some schools on Long Island were not in accordance with Plyler, the State Education Department (SED) issued guidance to districts on Aug. 30, 2010. The memo details districts’ obligations in enrolling students and making residency determinations, particularly with regard to students who are not U.S. citizens. As a result, during the enrollment/registration process, school districts commonly request information or records to establish a student’s date of birth and address to determine a student’s age and residency within the district.

Plyler did not expressly address the issue of whether a school district may inquire about a student’s immigration status at the time of enrollment. However, the SED guidance said districts should avoid any actions that might “chill” or discourage undocumented students from receiving a free public education. Accordingly, SED has long believed that schools should avoid asking questions related to immigration status at the time of registration, and they should also avoid asking for a Social Security number or other information that may reveal a child’s immigration status. SED’s stance is that school districts lack legal authority to inquire about the immigration status of students prior to enrollment and that such inquiries serve no purpose relevant to enrollment.

When the Los Angeles school district made its declaration in 2016, Barack Obama was still president. ICE spokespersons at the time said that the agency does not conduct raids on school districts, churches, and hospitals as they are designated “sensitive locations.”

Media have reported concerns that under the Trump administration, ICE agents will step up enforcement actions in or near schools. Teachers in the Austin area say parents who once drove their children to school are now sending them on the bus instead, to avoid running into immigration authorities, according to the Huffington Post.

Should a school board take action to declare sanctuary status? On one hand, doing so may reassure immigrant families and articulate the values of the school district to interested parties. On the other hand, undocumented students already have legal protections and declarations of sanctuary status do not extend any new protections.

In an executive order signed on January 25, 2017, President Donald Trump ordered that any jurisdiction deemed by the administration to be a sanctuary jurisdiction is no longer eligible to receive federal grants, except as deemed necessary for law enforcement purposes. While the order did not expressly address federal funding to sanctuary school districts, moving in that direction would jeopardize nearly 10 percent of school funding in New York State. Nearly all public school districts in New York State receive significant federal funding for various purposes, including special education and school lunch programs.

[Editor’s Note: A federal judge in San Francisco temporarily blocked that executive order on April 24, ruling that only Congress could place such restrictions on spending.]

Another risk of publicly declaring sanctuary status is the possibility of heightened immigration enforcement. Or a district could be overwhelmed with residency issues after it publicly declares itself a sanctuary district.

Another option is for a district to take steps to educate district personnel and residents about the rights of undocumented immigrants without publicly holding itself out as a sanctuary district. At the moment, that appears to be a prudent approach.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by James Beyer and Danielle Rizzo of Harris Beach, PLLC.