Protecting Students and Schools: Navigating ICE Enforcement Under New Federal Directives

On Monday, January 20, 2025, the Department of Homeland Security issued a directive that rescinds the Biden Administration’s guidelines for Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) enforcement actions in or near so-called “sensitive” areas, including schools. Pursuant to the directive, ICE may now take immigration enforcement actions at schools. While this change is alarming, existing laws and policies offer protections that will help minimize disruptions to the school day that could result from ICE enforcement actions. This Memorandum provides a summary of some of the most important standards to remember as immigration policy develops under the new Administration. Schools can and should continue to be safe spaces for learning for all students.

RIGHT TO ACCESS PUBLIC EDUCATION

Pursuant to both federal and state law, children have a right to access public education regardless of immigration status. In Plyler v. Doe, 457 U.S. 202 (1982), the U.S. Supreme Court held that a state’s denial of access to public education based on the child’s immigration status was a violation of the Equal Protection Clause of the Fourteenth Amendment. The state of Colorado provides additional protections that guarantee a child’s right to access public education. The Colorado Anti-Discrimination Act (CADA) prohibits discrimination in public accommodations, including schools, based on race, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry. C.R.S. § 24-34-601. It is discriminatory and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a school based on these qualities. Id.

EXISTING PROTECTIONS FOR STUDENTS

Protections Against Entry into Schools. To enter a school, ICE must have a valid warrant, signed by a judge, that states with particularity the names of the individual(s) the warrant applies to. If ICE arrives at school seeking to access or arrest an individual, school personnel should ask to see the warrant and contact the school district’s attorney to confirm the validity of the warrant before granting ICE access to the building. If the school district’s attorney determines that ICE has a valid warrant, the school should allow ICE to proceed with the arrest. Absent a valid arrest warrant, the school should not allow ICE to enter and arrest the individual.

Protections Against Release of Student Documents and Information. TheFamily Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a federal law that protects the privacy of student records. FERPA requires a school to keep personally identifiable information in student records confidential and to seek consent from the parent or eligible student (a student who has reached 18 years of age or is attending an institution of postsecondary education) before disclosing such information. FERPA does allow a school to disclose information that it has properly designated as “directory information” without consent from the parent or eligible student, but the parent or eligible student must have been given an opportunity to opt out of disclosure of this type of information. 34 CFR § 99.37. Importantly, directory information cannot include social security numbers or social security cards. 34 CFR § 99.3.

• There is a FERPA exception that allows a school to disclose personally identifiable information to law enforcement officials, including ICE, without consent from the parent or eligible student, in order to comply with a judicial order or lawfully issued subpoena. 34 CFR § 99.31. To ensure compliance with FERPA, school personnel should ask ICE to see the judicial order or subpoena and immediately contact the school district’s attorney to confirm the document’s validity before disclosing student information to ICE. The school should also notify the parent or eligible student of the judicial order or subpoena before disclosing any information to ICE, to give them an opportunity to seek protective action. Id.
• Another FERPA exception allows a school to disclose personally identifiable information from a student record to “appropriate parties” in connection with a health and safety emergency. For this exception to apply, disclosure of the information must be necessary to protect the health or safety of the student or other individuals. 34 CFR § 99.36. It is unlikely that this exception will apply to ICE enforcement actions.

For more information on FERPA, including guides on parent rights and eligible student rights under FERPA, see here: FERPA | Protecting Student Privacy.

RECOMMENDED ACTIONS

• Update Student Contact Information. While a school cannot prevent immigration enforcement actions by ICE, it can be prepared to respond and communicate with the student caretakers, should such an event take place. To ensure the school can quickly contact a student’s parents or caretakers, we recommend having students update their emergency contact information to ensure all contact information, including phone numbers, is accurate. It may also be advisable to increase the number of emergency contacts, and the number of individuals authorized to pick up a student. Students may also consider including emergency contacts who will not be faced with immigration concerns, should ICE enforcement actions begin in the community.
• Review Policy JIH Regarding Student Interaction with Law Enforcement Officials. To prepare for any potential student interactions with ICE officials, school personnel should carefully review and perhaps update policy JIH. Any student interviews, searches, or arrests by ICE officials or law enforcement should be performed in accordance with the requirements of policy JIH. It is important for school personnel to be familiar with these policies, so they can be followed as closely as possible if such a situation arises.
• Review Policy JRA/JRC Regarding Release of Information from Student Records. School personnel should review and consider updating policy JRA/JRC regarding student records and the release of information from student records. These policies describe the confidentiality requirements for student records and explain who may have access to information in student records, and under what circumstances. It is important for school personnel to familiarize themselves with these policies to properly protect confidential student information. Most policies will require disclosure of student information to comply with a judicial order or lawful subpoena. If ICE officials present school personnel with a judicial order or subpoena, the school district’s attorney should be contacted immediately to ensure the validity of the document before the school releases the student’s information.
• Contact Legal Counsel in the Event of an ICE Enforcement Action. In the event of an ICE enforcement action at your school, we recommend contacting the school district’s attorney immediately to provide support throughout the event.
• Focus on student safety. Changes to immigration policy can be politically charged, so remain focused on the continuous need to provide your students with a safe and secure learning environment.

CONCLUSION

We know the safety of your students is your top priority and we hope this information serves as helpful guidance for your schools as immigration policy evolves under the new Administration. Our aim is to support you in maintaining a positive and safe environment for your students and school personnel. If specific concerns about immigration arise at your schools, we at Lyons Gaddis would be happy to work with you to address your specific situation. We have additionally collected a number of resources regarding these topics and are happy to share upon request. Contact our School Law attorneys, Adele Reester, Catherine Tallerico, and Robyn Smith for assistance.