In Safe Hands

How School Boards Can Support California’s Undocumented Students
by Kimberly Sellery, 
managing editor, California Schools magazine

AN ESTIMATED 300,000 UNDOCUMENTED STUDENTS ATTEND K-12 SCHOOLS IN CALIFORNIA, AND ABOUT ONE MILLION MORE LIVE WITH A PARENT OR GUARDIAN WHO IS UNDOCUMENTED, ACCORDING TO THE CALIFORNIA DEPARTMENT OF EDUCATION.

And that figure only tells part of the story. A new brief by the University of Southern California’s Center for the Study of Immigrant Integration reports that around two million children younger than 18 years old live with an unauthorized family member. As federal enforcement policies regarding the detainment and deportation of undocumented immigrants ramps up, so do the fears and anxieties of a significant portion of California’s public school students. However, court rulings and current policies provide protections for these vulnerable students, and school districts can help alleviate fears by focusing on facts, offering resources and making sure their own policies are up to date.

On June 15, 1982, the Supreme Court ruled on Plyler v. Doe, a landmark decision holding that states cannot constitutionally deny students a free public education on account of their immigration status. By a 5–4 vote, the Court found that any resources which might be saved from excluding undocumented children from public schools were far outweighed by the harms imposed on society at large from denying them an education. The Court based its ruling on the Equal Protection Clause in the 14th Amendment, which provides that “no State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Court explained that “education has a fundamental role in maintaining the fabric of our society” and “provides the basic tools by which individuals might lead economically productive lives to the benefit of us all.” And while a state may withhold benefits from people who entered the country illegally, the children of such illegal entrants “can affect neither their parents’ conduct nor their own status.”

“All students deserve a free public education as prescribed by law, regardless of their immigration status,” said CSBA President Susan Henry. “School board members can be instrumental in making sure their schools provide a safe environment for all students and are following best practices in regard to student enrollment.”

IMMIGRATION POLICY AFFECTS CHILDREN

Recent reports of people arrested by Immigration and Customs Enforcement, or ICE, in their homes, outside schools and after regularly scheduled check-ins with the agency contribute to a swelling tide of fear and anxiety for students who are undocumented or who live with undocumented parents or guardians.

A recent Urban Institute-Migration Policy Institute research report, Implications of Immigration Enforcement Activities for the Well-Being of Children in Immigrant Families, conducted a thorough review of the literature on the impacts of parental deportation on children, and on their needs for health and social services. The literature mostly dates from a period of peak enforcement from 2009–13. They found that children of unauthorized immigrants that live with the persistent threat of their parents’ deportation often experience the economic and social instability that generally accompanies the undocumented status of their family members. Low pay, unstable employment, unpredictable work hours, lack of autonomy at work and lack of quality and stable child care have been associated with poor health outcomes and low cognitive development among children with undocumented parents.

“School board members can be instrumental in making sure their schools provide a safe environment for all students and are following best practices in regard to student enrollment ,” Susan Henry, CSBA President

Small-scale studies of children whose parents have been separated from them as a result of detention and deportation have found effects such as psychological trauma, material hardship, residential instability, family dissolution, increased use of public benefits and among boys, aggression. More than 90 percent of those detained and/or deported are men, who are usually the main source of income in undocumented families. In one study of six immigration raid sites, family income dropped an average of 70 percent during the six months following the arrest of a parent, adding to an already stressful situation.

The American Academy of Pediatrics is taking a strong stand against this attack on immigrant children and families. In a statement released in response to federal executive orders increasing immigration enforcement activities, they alluded to the trauma and violence many undocumented families have faced, noting “children do not immigrate, they flee. Broad scale expansion of family detention only exacerbates their suffering.” The AAP goes on to cite the health and developmental impacts that prolonged fear and stress can have on children, known as “toxic stress,” that can harm the developing brain and negatively impact short- and long-term health.

Thomas Saenz, president of the Mexican American Legal Defense and Education Fund — a civil rights organization that filed suit on behalf of the undocumented students in the Plyler v. Doe case — told EdSource that children’s anxiety over federal immigration policies is at an unprecedented level and, if it prevents them from attending school or affects their performance in school, that “it is a denial of education, equivalent to charging tuition” and in violation of the ruling established in the landmark case.

Nikki Marquez, a law fellow at the Immigrant Legal Resource Center, a nonprofit advocacy and educational organization that works to advance immigrant rights, echoed these concerns with real life examples. “We’re hearing a lot of concerns from the community. I think generally there is an increased sense of fear and panic as to what might happen,” she said. “We’re seeing it play out in different places. We have an attorney in the Central Valley focusing on more rural communities who reported that there was some ICE activity nearby, and the next day less than half of the children showed up at school. Things are happening outside of the school context that have people living in fear and are keeping families from going about their normal activities, and from being engaged in areas schools would otherwise want them to be engaged. We’ve had reports of parents not coming to parent–teacher conferences because they feel at risk of being targeted.”

CSBA LEGAL GUIDANCE

Many school boards are responding to the concerns raised by students and parents by approving resolutions declaring schools “sanctuaries” or “safe havens” from federal immigration enforcement activities. While these resolutions do not provide legal protection for students beyond existing law, they create protocols that direct staff on how to uniformly respond to potential requests related to immigration enforcement, and help governing boards utilize their lawful discretion to establish policies and procedures to ensure that the district is providing equal access to public education to all students. It is important to keep in mind that the safety and sanctity of school sites and activities may be challenged by the actions of federal immigration officers and agents responding to urgent or “exigent” circumstances.

CSBA has provided legal guidance and a sample “safe haven” resolution to inform board members about the rights of students and their parents and guardians under state and federal law, and of how federal interpretation and enforcement of immigration laws, regulations and policies can affect schools. Public schools may well be in the middle of differing policies between federal and state authority respecting the rights of non-citizen students and their families. CSBA, in acknowledging this potential conflict, has distributed this guidance to its members to share with their superintendent and legal counsel and to use at their discretion.

IMMIGRATION STATUS AND SOCIAL SECURITY NUMBERS

Schools should not inquire about a student’s immigration status for establishing residency in the district, as it is unnecessary to collect this information to establish residency.

Any such inquiry may also violate federal law, and may put the school in a position of being challenged by federal agents to release such information if collected. Districts can require students or their parents to provide proof of residency within the district through documentation including copies of phone or utility bills, or lease agreements. However, inquiring into students’ citizenship or immigration status, or that of their parents by requesting copies of passports or visas, would not be relevant to establishing residency within the district. Districts should review their practices around establishing residency and ensure that any documents or information required for residency would not unlawfully bar or discourage a student who is undocumented or whose parents are undocumented from enrolling them in or attending school.

A district cannot deny enrollment to a student if the student (or his or her family) does not provide a Social Security number for anyone in the family. In fact, the passage of Assembly Bill 2097 (Melendez, D-Lake Elsinore), effective Jan. 1, 2017, generally prohibits the collection or solicitation of Social Security numbers from students in response to the data privacy risks students face and the prevalence of Social Security numbers being the target of identity theft crimes. As part of the new law, the Superintendent of Public Instruction will phase in the use of student identification numbers over the next two years, beginning with the 2017–18 fiscal year.

The collection of this sensitive information in enrollment forms is the subject of a joint complaint filed with the California Attorney General’s office by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and California Rural Legal Assistance, Inc.

Triggered by a case handled by senior attorney Deborah Escobedo of the Lawyers’ Committee for Civil Rights in which a student was denied school enrollment for seven months, a survey of school enrollment forms was conducted by the organizations to find solicitation of information that might deter school enrollment. The survey found 75 districts with violations. The complaint asks that the Attorney General’s office take necessary action, including prosecution, to ensure that school districts rescind and remove these policies from their internal and public policies and revise their website and parent information materials to eliminate any references to these illegal practices.

“School boards can do a lot to make sure that their policies, their forms, their procedures and their websites do not discourage immigrant families from enrolling their children in schools,” said Escobedo, who has practiced education law for over 30 years. “As a school board member, I think what they need to do is have an agenda item that directs the superintendent to review enrollment and residency policies and procedures to make sure that the list of documents that can be used to establish residency would not unlawfully bar or discourage a student who is undocumented, or whose parent is undocumented, from enrolling in or attending school.”

The complaint to the Attorney General’s Office notes that several “districts that ask about U.S. Citizenship status and/or for Social Security numbers do so in direct violation of their own Board of Education policy.” Escobedo emphasized the obligation that school boards have not only to set policies, but to make sure they are being followed.

SCHOOLS AND U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT

Communication is key to begin to address the concerns of undocumented students and their families. Under the Family Educational Rights and Privacy Act, commonly known as FERPA, schools are prohibited, without parental consent, from providing information from a student’s file to federal immigration agents if the information would potentially expose a student’s immigration status. In addition, Education Code section 49076 mandates that school districts shall not permit access to student records without written parental consent or under court order, with very limited exceptions, and does not include ICE and immigration authorities in those limited exceptions.

According to the current policy issued by the Department of Homeland Security in 2011, immigration enforcement actions at “sensitive locations” such as schools and hospitals should generally be avoided. Any planned enforcement action at or focused on a sensitive location must have prior approval from an appropriate supervisory official or exigent circumstances necessitating immediate action.

SAFE HAVEN RESOLUTIONS

A recent Public Policy Institute of California statewide survey showed that 70 percent of Californians are concerned that the increased federal immigration enforcement efforts will impact undocumented students and families in their local public schools.

State Superintendent of Public Instruction Tom Torlakson issued advisory letters in December and February urging districts to declare themselves “safe havens,” in order to alleviate anxieties and reinforce that schools will remain safe spaces for all students and their parents or guardians. At the time of reporting, more than 100 school districts have passed such resolutions.

“School boards can do a lot to make sure that their policies, their forms, their procedures and their websites do not discourage immigrant families from enrolling their children in schools,” Deborah Escobedo, Senior Attorney of the Lawyers’ Committee for Civil Rights

Sacramento City Unified School District was one of the first to approve such a resolution in December of last year. Their Safe Haven resolution included compliance with a 2011 federal policy that immigration enforcement officials could not enter district campuses or facilities without prior written approval from the superintendent, and also restricts the sharing of student files that can be used to determine a student’s immigration status.

“Our Safe Haven policy was the first step we took to protect our kids,” said SCUSD Vice President Jessie Ryan. “Now we are taking an even bigger step by launching a full campaign to make sure every undocumented student and parent in our school district knows their rights if approached by immigration officials.”

Samuel Molina, California state director at Mi Familia Vota, a national civic engagement organization that advocates on social and economic issues that impact the Latino community, has also seen concerns rising. “The overall feeling we got from the community was that kids just weren’t feeling safe going to school anymore,” he said. “We had a report from a teacher that one student stopped attending all together right after the election. Concerns about what this is doing for education and for our youth started to resonate within the community.”

In January, Mi Familia Vota proposed a safe haven resolution to the Fresno Unified School District Board of Trustees. The organization was approached by two local high school students who volunteered to collect signatures on campus supporting a resolution. They received more than 600 signatures. An online petition added more, and more than 1,000 community signatures were presented to the school board at the March meeting. Beginning with the Sacramento City USD resolution, which has been held up by Superintendent Torlakson as a state model, the board ultimately modified a resolution made available by the American Civil Liberties Union.

“Each resolution has their own different language,” said Molina. “The Fresno Unified resolution has some real teeth in it, including training for staff and teachers on how to deal with immigration-related issues. It’s also going to ask that psychologists and counselors on staff at Fresno Unified schools now get some training on how to help students who are dealing with immigration-related issues. It also went further to state that resources can be allocated to provide ‘know your rights’ information to students and their parents.”

REACHING OUT TO YOUR COMMUNITY

There are many resource organizations that school boards can turn to if they are searching for ways to reach out to the undocumented immigrant community. The Immigrant Legal Resource Center is a part of the Ready California coalition, a cross-sector collaborative effort of legal services providers, community-based organizations, unions and faith-based organizing groups, among others, which supports California institutions and organizations by getting information and legal services out to immigrant community members so that they can prepare and respond to emerging opportunities and challenges. The ILRC has been responding to requests from schools and school districts as they have come in.

“We’ve had schools reach out to us to do a presentation or something more informal. We’re working with Santa Clara County and doing presentations at the district and county level. We’ve also done some presentations for the Oakland Unified School District,” Marquez said. She explained that ILRC works hard to respond to each request for advice or presentations, and when it is not feasible or out of their range of operations, they work to connect them with local organizations, often through the Ready California coalition.

“Schools are a trusted member of the community and a great resource for the community,” said Marquez. “Teaching them what the rights are for their children and families, so that they are able to become a resource for their families and students with immigration concerns outside of the school context, should be a high priority.”

RESOURCES TO HELP WITH COMMUNITY EDUCATION

CSBA legal guidance

Ready California

Immigrant Legal Resource Center

National Immigration Law Center

ACLU