How the New Immigration Agenda Violates the Promise of Plyler v. Doe & What School Decision-Makers Can Do to Protect Their Students & the Constitution.

Student Privacy, Equity, and Digital Literacy Newsletter: Deeper Dive — Installment One

The Youth and Media team at the Berkman Klein Center for Internet & Society at Harvard University and the Data & Society Research Institute co-edit a bi-weekly newsletter on Student Privacy, Equity, and Digital Literacy. (Archive and sign-up available here.) We’re pleased to start bringing you further exploration of some posts from the newsletter via our Medium collections and other outlets. Thanks for reading, and please be in touch to continue the discussion!

Thirty-five years ago, in the case of Plyler v. Doe, the United States Supreme Court held that it was unconstitutional to deprive immigrant children who lack legal status of a public school education. The new policies on deportation the Trump administration issued two weeks ago are poised to generate a surge of advocacy around the promise and parameters of Plyler. These policies and the practices emerging to implement them operate as a barrier to — if not a de facto bar on — school attendance by undocumented youth, immigrant youth with legal status, and youth with United States citizenship whose parents or other loved ones lack any protected legal status. (For details on the policies and relevant practices, please check out the most recent installment of the Student Privacy, Equity, and Digital Literacy newsletter produced by the Youth and Media team at the Berkman Klein Center for Internet & Society at Harvard University and the Data & Society Research Institute.)

This post offers an initial analysis of how such educational disenfranchisement comes into serious tension with — and may even violate — the constitutional protection for education accorded to all youth in this country, regardless of their immigration status or citizenship. In conclusion, it offers some brief thoughts on how school, district, and state level decision-makers could use or strengthen their existing student digital data privacy protections so that these measures also help protect the promise of Plyler.

In Plyler, the Supreme Court recognized the unique role of education to improve the lives of individuals as well as ensure the continued functioning of our democracy. Because of education’s essential function in both private and public life, the Court has protected access to it beyond those guarantees given to government services that may be seen as benefits rather than bedrock. But since the new policies went into effect, reports from school districts around the country reflect that youth in immigrant families are uncertain about going or, in some instances, too scared to go to school. Many local school districts are trying to provide reassurance that they continue to be safe and welcoming places for all students. (And ICE has historically recognized schools as a “sensitive location” that should “generally be avoided” in “enforcement actions.”) However, the current shift in deportation strategy at the national level (away from the previous focus on deportation of bad actors to the current focus on broad-based deportation with significant ICE officer discretion) makes districts less able to guarantee that warm welcome — especially outside the schoolhouse gates.

Children and teens who lack documentation — or who have parents who do, as many immigrant families have members with a range of statuses (both illegal and legal) — now face the very real prospect that their routine trip to and from school could result in their families’ having negative contact with ICE, as happened to this teenage girl’s father, who lacks documentation, when he was going to drop her off at school in California. (CNN reports that the teen “wept inconsolably as she captured video of her father’s detention [on her cell phone].”) It is not yet clear to what extent ICE intends to move against undocumented young adults themselves (whether they are covered as Dreamers or not); closely-watched cases in Washington State and Mississippi suggest that, despite public statements by the President to the contrary, this cohort may not be well-insulated from ICE enforcement action. Indeed, given the potential for ICE detainment as a result of mistaken identity, even older immigrant youth with legal status have reason to question their security when going to and from school. When faced with the specter of losing their parents, other relatives, or their own liberty by venturing outdoors, undocumented and other immigrant youth and youth in immigrant families may choose to stay home from school.

This is an understandable and rational response on the part of these young people, and it leads directly to the outcome that the Supreme Court forbid in Plyler: the use of governmental policies to effectively bar undocumented youth from attending public school. (The policy before the Court in Plyler required parents of undocumented youth to pay tuition to the public schools in their districts or their children couldn’t go to these schools.) Indeed, the outcome today risks taking an even deeper bite out of schools’ student bodies than did the policy in Plyler because it impedes or even bars school attendance by immigrant youth with legal status and youth with citizenship whose parents or other family members are undocumented. The federal executive branch is thus effectively asking many kids across the country (including lawful residents and American citizens) to choose between pursuing an education and preserving their families. (While the first act is specifically protected by Plyler, the second act is protected in more broad brush terms by other Supreme Court precedents, such as Obergefell v. Hodges — and the constitutional protections for familial integrity given to family units that contain non-citizens or mixed-immigration status members are weaker than those given to U.S. citizens.)

The federal executive branch is also encouraging — if not requiring — undocumented children, other immigrant children, and children who are citizens or lawfully present but whose parents or other family members are not to violate state laws by skipping school. By extension, it is also making their parents into law-breakers. In Plyler, the Supreme Court cautioned against creating a permanent underclass in the United States. Educational deprivation, the Court warned, creates dead-ends for individuals and our democratic republic.

State lawmakers have sought to guard against such outcomes by making school attendance mandatory for primary and secondary school age children. Truancy laws typically require children to attend school up to age 18 (or close to 18), and corresponding mandatory or compulsory attendance laws typically require parents to send children ages 6 (or 5) through 18 (or close to 18) to school. Young people who violate truancy laws commit a “status offense,” which isn’t technically a violation of criminal law but can result in a range of “rehabilitative measures,” including taking a child out of his or her parents’ home under certain circumstances.

However, parents who violate mandatory attendance laws do commit a crime, in some states, which can result in jail time, fines, and other sanctions. Under the new immigration policies, it could also result in potential grounds for deportation. As these grounds expand past violent crimes to include other types of misconduct (or no misconduct at all), the framework is in place for a Catch-22: kids stay home from school because they are scared that they or their parents will be deported, then their undocumented parents are in violation of state law and potentially at increased risk of being deported because they are engaging in criminal or unlawful conduct. Here again, parents and their children are being asked to pay too high a price for public education: the potential governmental destruction of their family units, this time because of staying away from schools rather than going to them.

School decision-makers who seek to protect the ability of all their students to attend school regularly and safely are not without recourse. In addition to the measures being taken in many school districts already — which include school board resolutions addressing equity and legal reminders about the boundaries between the law enforcement and educational functions of the different levels of our government — teachers, administrators, and district and state level school officials should focus on protecting students’ digital data privacy. Although the nature and extent of digital technologies and services vary considerably between educational settings, researchers estimate that 95% of school districts nationwide use one or more types of cloud-based educational technologies (“ed tech”) for classroom or administrative functions. (Cloud-based ed tech facilitates the “transition of computing resources . . . away from localized systems . . . to shared remote systems.”) Cloud-based and other forms of digital ed tech offer many valuable opportunities for educators, administrators, students, parents, and other stakeholders, including personalized learning and cost-saving efficiencies for staff and leaders.

Of considerable significance for this analysis, one area where digital ed tech can help streamline a core school task is taking and tracking attendance. Some schools are using RFID sensors. Others are using electronic databases, as well as apps that can notify parents instantly if their child is not at her or his required location. (Attendance data may also be combined with data on other risk factors to help predict students’ chances of successful graduation.) Such affordances mean that school officials can know quickly if a truancy problem emerges and can easily share that information with relevant stakeholders to intervene and increase attendance. For example, here is the truancy policy of a school district in Michigan, which includes the use of ed tech for school officials to contact the district level attendance officer, a step along a formal intervention process that could result in a court petition being filed: the Attendance Referral “form should be electronically completed — if available, home and work phone numbers of parents are essential. The Attendance Referral form will be completed and electronically sent to the Calhoun ISD Attendance Officer via the truancy database.” There are also some electronic services on the market (or in development) that allow school or district level truancy officers to share files electronically with juvenile justice officials, who are part of local or state law enforcement more broadly. (A related note: schools are not the only stakeholders in truancy intervention processes; others, like juvenile justice officials, might well use their own tracking software or other digital services to address truancy and related situations.)

Given the Catch-22 detailed above, school officials are encouraged to review the legal parameters of their existing discretion about whether and when to involve law enforcement in handling a truancy situation if they suspect the underlying cause of absence is grounded in deportation fears — of course, being mindful that “[f]ederal law prohibits any person from intentionally concealing, harboring, or shielding an illegal alien from detection, where the alien’s illegal immigration status is known. It is also against federal law to conspire, aid, or abet such acts.” (Intentional concealment due to known illegal status is quite different than not picking up the phone to call the local police about truancy due to a suspicion that a member of the truant child’s family or the child himself or herself might be concerned about deportation, a concern that may or may not be based on actual undocumented status.) Accepting the federal immigration statutory scheme as unlikely to change, school officials should reflect on whether any current laws, regulations, policies, or other measures at the state, local, or school-level limits such discretion. If so, decision-makers invested in supporting attendance by all their students and protecting all students’ families should move quickly to make the necessary legislative, regulatory, or other changes. In the new immigration landscape, protecting students’ digital data privacy beyond what existing laws, regulations, and policies might require could mean the difference between preserving a family unit, as well as building trust with the student to support her or his return to school, and using government processes to destroy one.

More broadly, educational stakeholders with decision-making powers around digital ed tech should take this moment to review any existing policies and contracts with ed tech providers to increase protections on students’ digital data in areas in addition to truancy. With the ever-increasing sophistication of big data analytics (and the documented difficulty if not impossibility of truly de-identifying digital data such that it could be shared without being linked to individuals), it is reasonable to be concerned that data about students and their families that appear to be unrelated to their immigration status could potentially be run through some type of data analytics program designed to detect the presence of undocumented members of a household. Indeed, many tech workers and leaders have demonstrated their concern about this general type of scenario by pledging to refuse to work on such projects.

Schools that share any digital data about students and families with third-party tech providers should review the contractual commitments of those providers (whether entered into through negotiated contracts or via click-wrap agreements) to assess whether the existing contractual terms could conceivably permit those providers to re-share or otherwise use this data for immigrant status detection. In addition, schools, districts, and state departments of education should reflect on whether their teachers and front-line staff may need additional training on student privacy fundamentals so that un-vetted digital tech doesn’t sneak in and inadvertently create a data flow outside of the school. Decision-makers shouldn’t go tech free; this option would be unrealistic in the twenty-first century as well as unwise, given the benefits that ed tech can bring. But Plyler’s promise is timeless, thus any ed tech use should have student privacy protections in place to ensure that the “fundamental role [of education] in maintaining the fabric of our society” does not become twisted into a destructive role for children and families, as well as our democracy.

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