Schools are no longer exempt from immigration enforcement activities after President Donald Trump rescinded a Department of Homeland Security (DHS) policy last week that designated schools a "sensitive area" for immigration activities.

Previously, because schools were considered a "sensitive area," federal immigration officials could not conduct any immigration enforcement activities at schools, except in very narrowly defined circumstances. Now, those officials may conduct immigration enforcement activities at schools just like any other law enforcement activities.  

Schools are accustomed to handling requests from other law enforcement officials and can treat federal immigration officials, like officials from Immigration and Customs Enforcement (ICE), similarly. There are several things for schools to remember as they handle requests from ICE:

• ICE officials' powers are not unlimited. Students continue to enjoy basic Constitutional protections, as discussed below.  
   
• In order to access educational information about a student, the ICE official (or other law enforcement official) must have a court order, valid subpoena, or written parental authorization to do so, or demonstrate that knowledge of the information is necessary to protect the health or safety of students or other individuals. 
   
• As with other law enforcement agencies, schools may require the ICE official (or other law enforcement official) have a judicial warrant, signed by a judge, to conduct a search, conduct an interview, or make an arrest.  

Schools must also remember that the rescission of the DHS policy designating schools a "sensitive area" does not change the following:

• All children — regardless of immigration or citizenship status — have a Constitutional right to access public K-12 education. Schools should continue their practice of enrolling all students who meet age and residence requirements without inquiring about the students' legal status. 
   
• All students enjoy a right of privacy regarding their educational information under the Family Educational Rights and Privacy Act (FERPA). While parents generally have a right of access to their children's information, FERPA guarantees that this information will be kept private from others unless specific exceptions apply. Schools must continue to safeguard the privacy and confidentiality of all children's educational information, regardless of immigration or citizenship status.
   
• All children deserve fair and equitable treatment within their school, regardless of their immigration or citizenship status.  

If an ICE or other law enforcement official arrives at school seeking information, access to the building, or access to individuals (including students), school personnel may request documentation, including the official's identification, any subpoena or warrant, and/or any court order. Schools then may wish to consult with their leadership team or legal counsel to comply with any lawful request.  

For more information, please contact us or your regular Parker Poe contact. You can also subscribe to our latest alerts and insights here.