This document was prepared for

Rochester Public Schools by our legal counsel.

FREQUENTLY ASKED QUESTIONS: IMMIGRATION ISSUES

RIGHTS OF IMMIGRANT STUDENTS

●​ Can public schools deny a free public education to students based on their
immigrant status? No. The Equal Protection Clause of the U.S. Constitution
states: “No State shall … deny to any person within its jurisdiction the equal
protection of the laws.” In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme
Court held that the Equal Protection Clause bars the government from denying a
free public education to students who were not “legally admitted” to the United
States. As a result, public schools must treat immigrant students and
non-immigrant students equally.

●​ What rationale did the Supreme Court provide for its decision in Plyler?
The Supreme Court explained that holding undocumented immigrant children
accountable for their parents’ actions “does not comport with fundamental
conceptions of justice.” Plyer, 457 at 220. Additionally, denying innocent children
access to a public education, “imposes a lifetime hardship on a discrete class of
children not accountable for their disabling status…. By denying these children a
basic education, we 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.” Id. at 223.

●​ What precautions should school districts take in light of Plyler? School

districts should not take actions that could reasonably be perceived as
discouraging undocumented immigrants from attending school. For example,
school districts should not ask about a family’s immigration status during the
enrollment process and should not maintain records about a family’s immigration
status.

ICE ACCESS TO DATA ON STUDENTS OR PARENTS

●​ What is ICE? ICE is an acronym that stands for Immigration and Customs
Enforcement.

●​ What should you do if an ICE agent serves you with a subpoena for student
records? Teachers should notify the building administrator. In turn, the building
administrator should notify the Superintendent’s office, so the subpoena can be
reviewed by the District’s legal counsel. Do NOT immediately provide records in
response to a subpoena. To be effective, a subpoena for records must be
personally served on the records custodian and must include prepayment for the
cost of producing the records. Additionally, in most cases, the Family Educational

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Rights Privacy Act (FERPA) requires school districts to notify parents of a

subpoena before complying with the subpoena.

●​ What should you do if ICE presents a subpoena for student records and
demands immediate compliance? Teachers should notify the building
administrator. In turn, the building administrator should notify the
Superintendent’s office. With very limited exceptions, the law does not require, or
allow an administrative agency to demand, immediate compliance with a
subpoena.

●​ What is “directory information”? The term “directory information” refers to

information contained in an education record of a student that would not
generally be considered harmful or an invasion of privacy if disclosed. School
districts may designate innocuous educational data as public directory
information. Common examples of directory information include a student’s
name, photo, school attended, grade, participation in officially recognized
activities and sports, awards, honors, and date of graduation. In Minnesota,
school districts may not designate any personal contact information on a student
as directory information. Additionally, protected class status—including race,
national origin, or immigrant status—is not directory information. Finally, parents
(or students who are 18) can “opt out” of having any information on their child
designated as directory information.

●​ What should you do if ICE requests or demands “directory information” on

a student? Teachers should notify the building administrator. In turn, the building
administrator should notify the Superintendent’s office. The District needs to
verify that the information being requested is, in fact, “directory information” and
that the parents have not opted out of having the information designated as
“directory information.”

●​ What should you do if ICE requests or demands information about a

student’s parent(s)? Teachers should notify the building administrator. In turn,
the building administrator should notify the Superintendent’s office. Minnesota
law classifies data on parents as private data on individuals. Therefore, unless
the data on parents have been properly designated as “directory information,” the
District may not release data on parents.

WILL SCHOOLS CONTINUE TO BE TREATED AS “SENSITIVE LOCATIONS”?

●​ What is a “sensitive location”? In the past, the U.S. Department of Homeland

Security (DHS) and ICE identified the following as “sensitive locations”:
daycares, preschools, primary schools, secondary schools, post-secondary
schools, school bus stops, medical treatment facilities, and places of worship.
The policy of DHS and ICE has been that enforcement activities—including

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surveillance, interviews, searches, and arrests—will not occur in sensitive

locations, unless exigent or special circumstances exist.

●​ Will schools continue to be treated as a “sensitive location” under the new

administration? President Trump has repeatedly stated that he will abandon the
policy of treating schools as a sensitive location.

ICE ACCESS TO STUDENTS AT SCHOOL

●​ What should you do if ICE enters the school building and demands to
speak to a student? Teachers should notify the building administrator. In turn,
the building administrator should notify the Superintendent’s office. Without an
arrest warrant, ICE does not have the authority to demand access to a student at
school. Additionally, District policy generally prohibits outside agencies, including
law enforcement agencies, from interviewing students on school property without
parental consent, unless a health or safety emergency or other exigent
circumstance exists.

●​ What should you do if ICE enters the school building and presents and
“administrative warrant” to speak to a student? Teachers should notify the
building administrator. In turn, the building administrator should notify the
Superintendent’s office, so the Superintendent’s office can contact the District’s
legal counsel. An administrative warrant may or may not be enforceable.

●​ What should you do if ICE enters the school building and presents a
“judicial warrant” to speak to a student or to remove a student from school
property? A judicial warrant must be signed by a federal or state court judge. An
arrest warrant is an example of a judicial warrant. School districts must comply
with a judicial warrant. The Superintendent’s office should be notified immediately
of any judicial warrant that is served on a District employee. The building
administrator may ask, but may not require, ICE officials to execute the warrant
outside of school.

●​ If ICE presents a judicial warrant to remove a student from school, may a

District employee accompany the student with ICE until the student’s
parent shows up? No. District employees do not have any authority to
accompany a student who is being arrested or detained, nor would ICE permit
this.

WHAT IS THE ROLE OF SCHOOL STAFF WHEN ICE TAKES ACTION?

●​ If ICE detains a student’s parents, may a staff member “take in” the student
and provide room and board to the student until the parents are released or

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another relative is identified? No. District employees do not have any authority
to assume the role of a legal guardian or to assume physical custody of a child.

●​ What role should District employees play in any type of immigration action
towards a district student or family? In the event that ICE becomes involved in
an action with a student or family, District employees should not seek to interfere,
to provide advice on how to evade ICE, or to provide legal advice. However,
employees may provide local resources to students and families and may help
families connect with local resources, similar to the manner in which schools
assist families with food or housing insecurities.

●​ May staff members inform parents that ICE came to school and requested
information about them or about their child? Yes, unless the District has
received a court order or grand jury subpoena prohibiting the District from
disclosing information.

●​ If ICE detains a student’s parents and the student does not have any other
emergency contacts listed, what should the District do? If the District does
not know of any other close relatives, the District must contact social services.