Lawyers Explain: Anti-Immigrant Policies and Education

Transcript

Transcripts are auto-generated

Alice (00:03):

That kind of off-duty advocacy is very forcefully protected by the First Amendment. Educators have the least protection when they are at work doing their job in their classroom, and so you should avoid doing advocacy in that space. When you're at work you should be doing your work and save the advocacy around the immigration issues for outside the school when you're acting as a citizen and you're fully protected.

Natieka (00:33):

Hello and welcome to School Me, the National Education Association's podcast dedicated to helping educators thrive at every stage of their careers. I'm your host, Natieka Samuels.

(00:44):

Schools are meant to be safe spaces for all students, but what happens when immigration enforcement reaches the classroom? Under Trump's administration, new policies have made it easier for ICE to enter schools, access student records, and create a culture of fear for immigrant families. For educators, this raises really urgent questions like what rights do my students have? Can schools legally keep ICE out? And how can educators and administrators support immigrant students without putting themselves or their schools at legal risk? Today we're speaking with Alice O'Brien and Lubna Alam from NEA's legal team to help educators navigate these complex legal waters and ensure that every student, regardless of immigration status, has access to a safe and supportive education. Thank you for joining me today, Alice and Lubna.

Lubna (01:31):

Thank you for having us.

Natieka (01:33):

Can you start by introducing yourselves. I guess Lubna, can you go first since Alice is old hat to this show.

Lubna (01:40):

My name is Lubna Alam. I'm staff counsel in the NEA Office of General Counsel, and I co-lead the immigration team at NEA.

Alice (01:48):

Hi Natieka. Hi Lubna. I'm Alice O'Brien, NEA General Counsel.

Natieka (01:52):

Well, let's get right into it. Hopefully anybody listening to this episode knows there's been a lot of upheaval in this country and in public schools when it comes to immigrant people, but also immigrant students. So I want to just start off with the base level of knowledge that we'd like to instill here, which is what protections do immigrant students both documented and undocumented currently have under federal law when it comes to attending a public school?

Alice (02:23):

The law is really clear on this point. I'm going to take this one because it's easy. The United States Supreme Court decided back in 1982 that all children, regardless of their immigration status, documented or undocumented, had the right to attend public schools and that the state couldn't refuse to allow students to attend because they were undocumented. The case was the Plyler v. Doe case. It came out of Texas and a Texas school district in response to Texas State law saying that the state was no longer going to pay for the cost of educating undocumented students. The school district decided that they were just going to bar undocumented students from attending the school altogether. And that was challenged in federal court and the federal court held ultimately at the US Supreme Court level that that was unconstitutional. It violated the equal protection clause because of the importance of public education and the irrationality of excluding children from that key public benefit in our society.

(03:32):

And that right, people call it the Plyler right, is the right of undocumented students to attend public school. It also means that public schools can't steer undocumented students away from enrolling. So public schools, while they can require evidence of where you live to enroll in a particular public school or how old you are so they can make an appropriate grade placement for you, they can't require that people show up with documents that would reveal their immigration status when they're making those enrollment decisions. And in fact, doing that is recognized to violate the Plyler right, because it chills immigrant families in exercising their rights to attend public schools like everyone else.

Natieka (04:24):

So right now we're hearing a lot of stories about ICE entering schools. Can school officials legally prevent that from happening, from ICE coming on school grounds and accessing student records? What kind of legal protections apply for schools when dealing with ICE right now?

Lubna (04:43):

So when it comes to preventing ICE from entering school grounds, it does depend a bit on the circumstances, but there are laws that protect students at school from this. Most importantly is the Fourth Amendment to the US Constitution. The Fourth Amendment protects all people from unreasonable searches and seizures from the government. And so what that means for schools is that law enforcement agents such as ICE are required to have a warrant signed by a judge, not just an administrative warrant issued by their own agency, to investigate or detain a person who is in a location where he or she has an expectation of privacy. So private areas of a school are places where there is such an expectation of privacy, because schools have discretion as to whether or not to let people into their school buildings or school classrooms. People can't just walk off the street and walk into a school classroom, right? There's protocol, you have to sign in, you have to be approved by the school to be in these private areas. So school officials also have discretion whether they wish to cooperate with ICE officials, if ice officials only have an administrative warrant with them.

(05:54

However, in the circumstance that ICE has a judicial warrant, meaning something that's signed by a judge, a federal judge, or a state court judge, then the school does need to comply with the terms of that warrant. Meaning the school must allow ICE access to the locations or people or items that are specified in that warrant, in that court judge-signed warrant. However, most of the time ICE does not have judicial warrants. They only have the administrative warrants. And in that case, school officials do have discretion about whether or not to let ICE into school grounds.

Natieka (06:27):

And for our members and the educators who are in the classrooms or in the hallways when something like this is happening, what are the legal rights that individual educators have?

Lubna (06:42):

If ICE were to enter a school, I mean what we would recommend educators to do is to alert their school officials. But it's really important for them to inform the school superintendent, the school district principal about what's happening because to see whether or not there's authorization for that individual to be in the school area.

(07:00):

We have also seen circumstances of people buying ICE shirts and wearing them and pretending to be ICE officials, which is why it's so important for there to be some sort of verification of, is this person actually an ICE agent? Let's look at their license, let's look at their paperwork. Because schools have a responsibility to students in their classrooms, and educators do as well. So you can't just let somebody walk into your classroom and say they're an ICE official without making sure proper procedure and protocol is followed here.

Natieka (07:29):

That's pretty wild, and I'm glad that you can call attention to that. Because anyone can buy anything online right now, so you can never really know. So there's something called FERPA, the Family Educational Rights and Privacy Act, and how does that protect immigrant students and what should educators do if law enforcement requests information about students?

Lubna (07:53):

So FERPA protects the privacy of student education records and it restricts what information can be shared, the sharing of personally identifiable information without parental consent. So that includes data that might include things like a student's immigration status. As Alice mentioned, schools should not be collecting immigration status or asking for immigration documents, but if for instance, the school has that information, that should not be shared without parental consent. And FERPA does apply to all schools that receive any Fed funding from the US Department of Education, so that includes K through 12 schools as well as colleges and universities. And so under FERPA schools cannot share student records with immigration or law enforcement without the written consent of a parent or guardian unless that information is requested through a subpoena or a court order such as judicial warrant.

(08:46)

It is important to note though that there is one exception to this and that is about directory information. Schools can disclose directory information without family consent unless a family has opted out of that sharing, which is why we recommend that school districts not include place of birth information in their directory information and that they inform parents of their right to opt out of directory information.

(09:09):

Usually directory information is things like a student's name, their address. In high school it's often things like what sports they might play or what teams they're on, things like that. So if law enforcement does request student information from an educator or from a school, educators should immediately inform their school superintendent. And what the superintendent needs to do is to request to see the written legal authorization for those student records. Because as I mentioned, under FERPA there needs to be a subpoena or a court order in order to release that information. You can't just hand it over because somebody asks. It needs to be a court order, and an ICE administrative order is not a court order that suffices under FERPA to allow disclosure without parental or guardian consent.

Natieka (09:54):

What policies can schools legally implement to limit the presence of ICE in the schools?

Lubna (10:03):

So what we recommend is something that we've been recommending for a long time, which is the adoption of what we call safe zone policies, and this is something that hundreds of school districts around the country have already passed these safe zone resolutions, these safe zone board policies. And they do a couple different things.

(10:21):

So first, they affirm that all students are welcome, that your school district is a welcoming place for all students. And it affirms the rights that Alice described under Plyler, for all students to attend school, that the school will not be collecting immigration information from students. And importantly, it also establishes procedures for how the school will respond to immigration enforcement. And what the procedure that we lay out in our model safe zone policy is that if ICE wants to visit a school or see student information, that the request must be reviewed by the superintendent's office to ensure compliance with FERPA and other laws. And it also lays out kind of what the superintendent's office will do: requesting ID checking the documents, consulting with legal counsel, et cetera.

(11:08):

And so by adopting a safe zone policy, what it does, it just makes sure is that the school community knows what the procedure is going to be, that educators know how to respond if ICE does attempt to come to school and that there's a consistent response that people aren't making ad hoc decisions about who's going to be called or what they're going to do, but that everybody knows, okay, this is the procedure, this is what we're going to do.

(11:32):

And these policies are really helpful. We've already seen instances where there have been attempts by law enforcement to come to school and the school had a safe zone policy. The staff and educators were educated on that policy, and they followed that policy and said, "Okay, well you need to talk to the superintendent and they need to look to see if you have appropriate warrant." And as a result of that, the ICE agent said, "Okay, well never mind. This is a bit of a hassle. We're going to not follow through with this and just leave."

(11:58):

And there's also other benefits too to the students of having this policies. There was actually a 2022 study that found that safe zone policies were associated with better academic outcomes for children who had experienced or were at risk for parental deportation. So there's also academic benefits to these policies as well.

Natieka (12:19):

And so it's not a policy that can legally keep law enforcement from ever coming there, but it's more like an understanding and it's sort of a workflow that everybody understands prior to that happening, if it happens.

Lubna (12:32):

Correct. Because if ICE has, for instance, a judicial warrant to enter that space, then school cannot prevent that from happening. But most of the time they don't have that.

Natieka (12:40):

Right. How can educators support students who are at risk for deportation and what legal protections do they have in offering that kind of support to them?

Alice (12:51):

Lubna has already talked about some of the most important ways to do that. Number one, if your school or your college doesn't have a safe zone resolution or safe zone policy, advocate for the adoption of one. Make sure that your college, your school is on record in support of undocumented students of the immigrant community, particularly in this time. I think it's really important for there to be kind of a public affirmation of support for those students. And make sure that your school isn't collecting immigration information.

(13:28):

So individual educators really should not have information about the immigration status of their students, nor should they be collecting it either. Educators always should remember that they have the greatest protections to advocate when they are off duty, when they're acting as a citizen just like everybody else in the world trying to influence government policy. So when they're going to the school board meeting advocating for the adoption of a safe zone resolution, advocating for the school district to inform immigrant families of their rights to opt out of FERPA directory information, that kind of off-duty advocacy is very forcefully protected by the First Amendment. Educators have the least protection when they are at work doing their job in their classroom. And so you should avoid doing advocacy in that space. When you're at work you should be doing your work and save the advocacy around the immigration issues for outside the school when you're acting as a citizen and you're fully protected.

(14:39):

Now, the tricky issue is always social media usage because social media usage, like someone may post something off duty on their personal account, everybody should always be using their personal email, right? Nobody should be using ever the school district email or the college or university email for their activism. Because those email systems are owned by the schools and the universities so they are their systems, they're not your personal system. But even if you're using your personal device off duty and you're posting something about the school or something about the college, if it ends up causing a disruption on campus, it can subject you to discipline to review by your school or college.

(15:28):

So you just want to be conscious of that dynamic, of the dynamic that social media has impacts many, many places, impacts people at different times, right? Not just when you post it, but subsequently. And so the safest course there is make sure that your advocacy with respect to the school, with respect to the school community is respectful, that you're not calling people names, using profanity, doing things that would create a furor at school, and you can predict would create a furor at school. Rather, you want to be using social media to advocate in a very reasoned way in support of safe zone protections for students in the immigration community served by your school.

Lubna (16:18):

And in addition to some of the things we've talked about, some other things that educators can do that we recommend partnering with your union to do these activities outside of school hours is the union can partner with other groups to host Know Your Rights workshops for families and students. There's been a lot of our local and state affiliates who've done that, who've partnered with legal clinics or lawyers or nonprofit organizations to do these types of trainings for the community. And we actually have a model Know Your Rights PowerPoint that can be used for this. That's available on NEA's Immigration Justice website. You can distribute red cards to the community. These are Know Your Rights cards that help people assert their constitutional rights if they end up interacting with ICE. One caution with something like distributing red cards or having these Know Your Rights flyers is to not target specific students or families who you might think particularly need this information, but rather share it with the community broadly. Because you don't want to say, "Oh, I think you might be undocumented. Let me give this card to you." You want to just kind of give it to the community and people can decide if they want to take this card or attend the training, things like that.

(17:24):

Reminding families to update their emergency contacts with the school is important, so the school knows who to contact if there is an emergency or the situation where a parent or caregiver is taken by immigration enforcement so the school knows who else could be contacted to pick up a child at school. And share information with families in the communities about creating a family preparedness plan. We have a link to that on the NEA Immigration at Justice website as well, but it's just a plan that families can create about what to do if they become subject to immigration enforcement or if people in the family are detained by ice.

Natieka (18:00):

Yeah, and I will provide links to our safe zone policy and also our immigration page, which has a ton of resources in the show notes so that you can check those out after you listen to this.

(18:10):

Thanks for listening to School Me and a quick thank you to all of the NEA members listening. If you're not an NEA member yet, visit nea.org/whyjoin to learn more about member benefits?

(18:22):

Do we even have First Amendment rights anymore? So I think, to put it bluntly, there's a lot of talk about we have these rights and you should know your rights, but it seems like that is getting thwarted in a lot of these situations, particularly when we're looking at what's happening on college campuses and political dissent and how that seems to be punished. I think a lot of people aren't comforted by the idea of having their First Amendment rights anymore as things are going down in the way that they are. So what do we say to people who are feeling really skeptical about how they're actually being protected by the rights that we thought were sort of fundamental to our country?

Alice (19:03):

I think it's important for people who are citizens to understand that they do have very broad protections under the First Amendment and given the current circumstances, it's really important for people who have broad protections under the First Amendment to use those protections. We have seen universities, for example, like Georgetown Law School, Harvard University, really stand on their First Amendment rights and say, "Thanks very much government for your input about what we should teach, but we actually have First Amendment rights to decide how we're going to teach and what we're going to teach and how we're going to conduct our school." When you are off duty, you have full protections under the First Amendment to participate in peaceful protest activity, which is permitted. That means you have time and place where the protest is going to take place, it takes place in a peaceful manner, that is protected by the First Amendment. And that kind of activity is happening all over the country.

(20:08):

Now the Trump administration has been using its view of its authority under immigration laws to go after individuals wrongfully, we believe, for their protest activity on college campuses. And in particular, they're not going after citizens, they're going after people who have a visa to be in the United States to study for a particular purpose. We don't have firsthand knowledge of this, but this is what's being reported in the papers. They are using people's participation in protest activity as a reason for pulling their visas and saying that they no longer have the right to be in this country.

(20:53):

And I think as citizens in this country, we have every reason and right under the First Amendment to raise questions about that and say that people should not be punished for voicing their views. If all these students did was voice their views on college campuses in a peaceful manner about what's going on in the world, that that is exactly what should happen at colleges and universities, and that the government should not be pulling people's student visas away from them because they expressed an opinion on a matter of public concern.

Lubna (21:30):

And I would also add that when it comes to the Know Your Rights issues with respect to immigration enforcement and the use of the red cards, it is actually fairly effective. I mean, Tom Homan has made some comments where he found that it was very frustrating to engage in immigration enforcement in certain places like Chicago, and very directly said it was a result of the fact that people knew what their rights were and did not let ICE into their homes and requested to see warrants.

(21:57):

So yes, is definitely a scary time for people to be trying to stand up and assert their rights, but I do think it's still important for people to know that you don't need to let ICE into your school or into your classroom or into your home without making sure that they have the proper authorization to be there. Because those rights are in fact guaranteed to all of us, whether you're a citizen or not, to be secure in places where you have an expectation of privacy.

(22:25):

But yes, I mean, we do see these scary things about people being snatched off the street, and the only justification being given is because of their speech activities. And thankfully, there has been a lot of pushback. There are lots of different lawsuits that have been filed about these cases, and so we're hopeful about what will happen as a result of those lawsuits.

Natieka (22:45):

We also have an open letter that people can download and use on higher ed campuses so that they can talk to their administration at their universities and colleges about actually protecting students and their speech, regardless of their immigration status. So you can check that out. It'll be among the many links in the show notes. But thank you for explaining that because I think as long as we understand that we can use our privilege as citizens, if we are citizens, to help, and also that education of ourselves, of our rights is some of the most powerful stuff that we can do.

(23:18):

Some districts have declared themselves as sanctuary schools. What legal weight do these types of designations carry, and how effective is it to call yourself a sanctuary school?

Lubna (23:30):

There's no real single definition of what a sanctuary school is. Basically what it can do is signal commitment to protect undocumented students and families. So the legal weight of a sanctuary school designation really depends on what the contours of their policy are, what exactly are they doing in their policy? So if their policy is very similar to the safe zone policies that we have talked about, and I believe a lot of sanctuary school policies are in fact very similar to the safe zone policies, then it is effective because these policies are based on the legal protections we discussed like Plyler, like FERPA, like the Fourth Amendment.

(24:07):

It's interesting that some of the schools call themselves the sanctuary schools, some of the schools have the safe zone policies, and I think some of it is just a stylistic choice about what to call these policies that protect students at school. That the sanctuary term kind of harkens back to the 1980 sanctuary movement, which was a real effort to protect individuals fleeing violence from Central America in places like churches and community organizations. And so that kind of harkens back to that term. And of course, we see cities and states refer themselves as sanctuary jurisdictions when they talk about not sharing information that their local police might have with immigration enforcement. So that's kind of different. That's like the sanctuary jurisdiction at a state and local level. But when it comes to the school level, if their policies are similar to the safe zones, then I think they can be pretty effective.

Natieka (24:57):

If an immigrant student is facing discrimination or harassment due to Trump's policies, what legal steps can educators take to actually protect those students?

Alice (25:09):

At the beginning of this conversation, we talked about the right under Plyler for undocumented students to attend school, but that's like the floor of the rights. There are a whole bunch of other rights as well. Federal and state law and local law protect students from discrimination and harassment, and those protections generally apply to protect against discrimination and harassment based on national origin or perceived national origin. And so if immigrant students are being discriminated against, harassed because of their immigration status, because of their country of origin, that violates federal, state and local law. And while there may not be a receptive audience at the federal level for bringing those types of claims, there may well be a receptive audience at the state level. The state Human Rights Commission or Civil Rights Commission will have a procedure available. At the local level there'll be a procedure available as well for raising those claims and getting redress for those claims.

(26:17):

And the school district itself, or the college or university have an obligation to protect students. And so if they have knowledge that students are being denied educational opportunity because of a protected status, they're being harassed because of their immigration status, because of their country of origin, they're being denied access to certain classes or certain activities, or they're being harassed in a way that interferes with their ability to participate in those activities and to receive the same equal educational opportunity that other students receive, then the school district or the college or university has an obligation to correct the situation, to remedy the situation.

(27:03):

And so people can go to state or local authorities to enforce that they can reach out to their union in order to raise the issue through the union to be addressed. And individuals also can seek counsel and sue to enforce their right under the civil rights laws. Because they're subject to private enforcement as well.

Natieka (27:25):

So there are a couple of cases, policies, acronyms, I guess that people know about that seem to be the basis of a lot of what we're talking about today in terms of rights. So for example, there're DACA. So if DACA is rescinded, how would that impact K through 12 schools?

Lubna (27:44):

I think it would have a pretty negative impact on schools. So DACA is the Deferred Action for Childhood Arrivals program. It's a federal policy that protects immigrants who were brought to the UA as children. Basically, they receive a temporary lawful status and also receive work authorization. NEA has been a champion of DACA since its inception during the Obama administration, and we continue to push Congress to pass legislation to turn DACA into a federal law to protect individuals with DACA and to expand the program. There's currently over 500,000 active DACA holders in the country, and about 15,000 of them are educators. And quite a few of those are our members. And so the first Trump administration did try to rescind the DACA program, but the Supreme Court blocked him from doing so. And throughout that litigation challenging the rescission of the DACA program, NEA filed amicus briefs in that case from the district court all the way to the Supreme Court.

(28:43):

And we talked about the negative impact that rescinding DACA would have on education. We focused on the stories of students and of educators about how DACA benefits public schools and students and the harms that would result from ending this program. And some of the things that we talked about were, for instance, that schools rely on these thousands of DACA educators to offset the nationwide teacher shortage. As we all know, there are not enough teachers in our public schools, and if you suddenly remove 15,000 of these educators from our classrooms, that's a pretty negative impact. And we also talk in our brief about how DACA, schools also rely on DACA holders to help provide essential diversity in the teaching profession. The teaching profession needs more diversity to help reflect the diversity of the student population, and DACA holders can help provide that in the classroom as well.

(29:36):

So those are some of the negative impacts if the program would be taken away, taking away these really valuable members of our school community to remove their lawful work authorization and ability to work in our classrooms. And at this point, the DACA program has been around long enough that many DACA holders now have children of their own. US citizen children who are enrolled in our schools and rescinding the program would obviously have a very negative impact on those students who attend our schools and their families as well.

Natieka (30:04):

And the other case that we've talked a bit about today is Plyler, and that seems to be the legal basis of a lot of the discussion we're having here. So I have to ask, is Plyler safe? Should we expect there to be challenges to that as the basis of everything that we're talking about today?

Lubna (30:22):

Well, I do think there are a lot of organizations that would like Plyler to no longer be the law of the land, but it is currently the law of the lan.d that is the law, and that is the law that schools need to follow. We do see states that are attempting to pass legislation to directly challenge Plyler because they would like to set up a legal challenge to it that would go up to the Supreme Court in the hopes that the law is overturned.

(30:46):

So if you are in a state and you see that your state legislature is trying to pass this type of anti-Plyler legislation to make it more difficult for immigrant children to attend schools, then you should definitely advocate and organize to defeat that legislation. We've seen this legislation hasn't moved forward in the states that have tried to pass it because it's a pretty terrible thing to say that certain children shouldn't attend school. That is a real attack on public education and the ability of children to learn. That's such a horrible thing. So Plyler does remain the law and that needs to be followed, but of course, yes, there are people who would like to attack it and weaken it.

Natieka (31:27):

Are there specific states or cities that are offering stronger protections for immigrant students right now, and how can educators leverage those laws and provide their support for those students?

Lubna (31:41):

There are states that have been very vocal about standing up for immigrant students. So for instance, California has a state law in addition to, of course, the Plyler, under Plyler that schools shouldn't be collecting immigration information. California also has a separate standalone state law that also prohibits schools from collecting immigration data and sharing that data. And the Attorney General in California has also issued really excellent guidance for K through 12 schools and higher education institutions on responding to immigration enforcement in those spaces. And there are other state attorney generals who have also done that, including in New Mexico, Massachusetts, New York, and other states as well. And states boards of education in a lot of states have also issued really excellent guidance on this subject, including Illinois, New York and other states.

(32:31):

So you can look to see if your state board of education or if your state attorney general has issued such guidance around how schools should protect immigrant students. And if they've done so, it's a really great jumping off point to help push and persuade your school district and your school board if they haven't already adopted a safe zone policy to do so. Because in these guidance documents, they encourage school districts to adopt these kind of policies and to have these policies in place. So that could be a really helpful way to advocate and push for the adoption of these policies in these states with this great guidance. And if your school board already has these policies, you can also help just publicize the protections of these policies and guidances to help with some of the fears that people may have in the community about what will happen to their students at school. So it can also be helpful in that respect for families to know that their school board, their state, their state attorney general, have all talked about the importance of protecting all students at school.

Natieka (33:34):

So of course there are many immigrant students in our schools, but there's also, as Lubna mentioned, immigrant educators. So if any of our members or listeners are educators who are immigrants, who are worried about what this means for their future, what they should be aware of and how they can protect themselves and their families, what is the advice that we would give them in this moment?

Alice (34:00):

So our members should always go to their local union and to their state affiliate for support and advice related to their employment issues, so that the first place we would recommend that people go. There are groups that have identified Immigration Council, and we do think it's important for groups, for individuals who have concerns about their immigration status or the status of their family members to consult with competent and reputable immigration attorneys. And so I think we can provide some links to resources for people who can identify local attorneys that they can talk to about their immigration issues.

(34:41):

I guess we have talked about a number of different things that educators can do in order to protect immigrant students and also best protect themselves and engaging in advocacy in this arena. I think it is important also to let people know one thing that they should not do, which is that there is a federal criminal law that prohibits harboring undocumented individuals. It's not a new law, it's been in place for a very long time. But it has been enforced against individuals who the government believes have been not just providing aid to undocumented individuals, but providing aid and also assisting them in evading detection by immigration enforcement. And so hiding individuals from ICE to avoid immigration enforcement could run foul of this law. And so we do advise people not to do that.

Natieka (35:45):

Well, thank you so much for joining us today and helping us make some sense of everything that's going on right now.

Alice (35:52):

I really appreciate you covering this really important subject.

Lubna (35:56):

Yeah, thank you so much. This was great.

Natieka (35:58):

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