Yes.  Public schools are prohibited from denying undocumented students a free public education.  (Plyler v. Doe (1982) 457 U.S. 202.) Under Plyler, 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.

No. The District should never ask a student, or a student’s parent/guardian, questions regarding citizenship or immigration status. (See Promoting a Safe and Secure Learning Environment for All: Guidance and Model Policies to Assist California's K-12 Schools in Responding to Immigration Issues at p. 8.) A student’s citizenship or immigration status is not relevant in establishing residency requirements. (OCR Dear Colleague Letter, May 8, 2014.)

Undocumented students wishing to enroll in a school may establish residency by providing the same documents as required by other students. For example, this may include a rental agreement or payment, correspondence from a government agency, a declaration of residency executed by the parent/guardian of the student, utility bills or other documents. (Ed. Code, § 48204.1.)

 

Schools should be cognizant, however, that school enrollment cannot be denied to a student, undocumented or otherwise, who is homeless and unable to show that he/she lives within the district’s boundaries.

Schools are permitted to request documentation to show that a student falls within a school’s minimum and maximum age requirements. (Ed. Code, § 48002; Cal. Code Regs., tit. 5, § 432, subd. (b)(1)(B).) Acceptable documents for establishing age include a certified copy of birth record, statement by the local registrar or county recorder certifying the date of birth, passport, baptism certificate, or an affidavit from a parent. (See Promoting a Safe and Secure Learning Environment for All: Guidance and Model Policies to Assist California's K-12 Schools in Responding to Immigration Issues at p. 8.) 

 

It should be noted, however, that although a school may request the aforementioned documents, a student cannot be prevented from enrolling or attending a school because he or she lacks a birth certificate, or has records indicating a foreign place of birth. There is no legal requirement for the district to retain a copy of the birth certificate in its records.

Yes. Unless an activity does not contribute to educational goals, and the denial of participation furthers a substantial state goal, the activity is likely protected under Plyler’s guarantee of access to education. Because there are strong arguments that extracurricular activities are central to the student’s educational experience, undocumented students should have the right to participate in those activities. This right extends to services related to transportation, special education, Section 504 services, and free and reduced meals.

Yes. All students within a school district are entitled to privacy rights with regard to each student’s educational records, under the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 C.F.R. § 99.1 et seq.), as well as under California law (Ed. Code, § 49060 et seq.). Under FERPA, a school district may disclose “directory information” to certain entities, so long as the school district has given the student/parents notice and an opportunity to refuse to disclose such directory information. What categories of directory information that will be released is a question determined at district level through board policy. (Ed. Code, § 49073, subd. (a).) Other records related to a student’s education at the school district, and which are personally identifiable, are protected under FERPA and state law from unauthorized disclosure, unless a specific exception applies. Such limited statutory exceptions include when a student’s educational records are requested by way of a lawfully issued court order, subpoena, or search warrant. If records are requested by way of a lawfully issued subpoena, the district must provide reasonable advanced notice to a student’s parent/guardian of the intent to comply with the subpoena and turn over educational records before disclosing such records, thus providing the opportunity to object to such disclosure before it has occurred. If a student’s educational records are sought by way of a court order or warrant, the terms of the court order or warrant will control on the nature of how quickly the district must turn over records and/or provide notice of the request and ordered disclosure of such records. When requesting records, the normal procedures of Immigration and Customs Enforcement (“ICE”) is to do so by subpoena.

Yes. Prior to releasing otherwise private student records to ICE, the superintendent should review the subpoena, search warrant, or court order, and consult with legal counsel to determine the scope of the subpoena, warrant or court order and whether it is genuine. In the case of search warrants, the school district will have little time to conduct a review of the documents. If the ICE agent is willing to cooperate with the school district and its legal counsel, the parties should coordinate to achieve compliance with the warrant that minimizes the disruption to school operations. Subpoenas and court orders do not present the same level of immediacy as a search warrant.

Under the above circumstances, the school district must refuse to produce the requested documents in compliance with FERPA and the California Education Code provisions that prevent the unauthorized disclosure of student records.

 

However, SROs cannot access or use student records for purposes beyond the scope of their function within the District (e.g., ensuring school safety, investigating and protecting against crimes at school, etc.). (See 34 C.F.R. §§ 99.31, subd. (a)(1)(i)(B)(3), 99.33, subd. (a)(2).) SROs can only access those records to which they have a “legitimate educational interest,” such as: class schedules, contact information, discipline records, and attendance records. SROs likely would not have a legitimate educational interest in a student’s enrollment or health records, which could show where the student was born or emigrated from.

As a related matter, the Family Educational Rights and Privacy Act (“FERPA”) (20 U.S.C. § 1232g; 34 C.F.R. §§ 99.1 et seq.), and the California Education Code (Ed. Code, § 49060 et seq.) provide that all students within a school district are entitled to privacy rights with regard to each student’s educational records. Under FERPA, a school district may disclose “directory information” (i.e., information in a student’s education records that would not be considered harmful or an invasion of privacy if disclosed) to certain entities, so long as the school district has given the student/parents notice and an opportunity to refuse to disclose such directory information. FERPA categorizes “place of birth” as directory information (34 C.F.R. § 99.3.—a potential indication as to a student’s immigration status. Whether a category of directory information will be released is a question determined at district level through board policy. (Ed. Code, § 49073, subd. (a).) In other words, a district may choose not to release information that is otherwise considered directory (e.g., place of birth). This said, as noted above, there are limited exceptions under state and federal law which permit access to student educational records pursuant to a lawfully issued court order, subpoena or search warrant.

Lastly, it is unclear whether the President’s recent executive order that threatens to withhold federal funding from sanctuary cities will impact sanctuary, safe haven or safe zone schools or school districts. Specifically, the executive order indicates that sanctuary cities that fail to comply with federal law will not receive federal funds. While the executive order may have no impact on safe haven or sanctuary schools, schools are nonetheless encouraged to adhere to all federal and state laws. Note, despite the recent executive order and the current political climate regarding immigration reform, State Superintendent of Public Instruction, Tom Torlakson, has continued to encourage schools to be declared safe havens.