Rights of Immigrant & Non-Citizen Students

OPERATIONAL GUIDELINES TO SAFEGUARD THE RIGHTS OF IMMIGRANT AND NON-CITIZEN STUDENTS

The procedures in this regulation address the safeguards and protection of students regarding various immigration enforcement actions.

I. Definitions

For purposes of these procedures, “Parent” includes natural parents, legal guardians, and persons in a parental relationship. Additionally, the following terms are as defined in Education Law §3201-b:

1. “School property” means in or within any building, structure, athletic playing field, playground, parking lot, or land inside the district’s property boundary lines; or in or on a school bus.
2. “School bus” means every motor vehicle operated for the transportation of students or their children, teachers, and anyone acting in a supervisory capacity, to or from school activities which is either: (1) owned by the district; or (2) privately owned and operated.
3. “School function” means a school sponsored event or activity, including those taking place outside school property.
4. “School personnel” means any (1) district employee, agent, officer, or school resource officer, or volunteer, or (2) employee of any firm, corporation, institution, or governmental agency who works on school property.

II. Access by Immigration Authorities to Students, School Property, and Information

When immigration authorities request or attempt to enter school property, question a student, or take custody of a student, before the immigration authority is permitted to enter

school property (including a school bus), or provided with information, or granted access to or custody of the student, district staff will follow the procedure below:

1. any school personnel who encounter immigration authorities will immediately contact the building’s lead administrator (“administrator”) or designee;
  1. the administrator or designee will request the immigration authority provide documentation of the legal basis for the request, and seek to be provided with a judicial warrant or court order;
  2. the administrator or designee, if they are not the Superintendent of Schools, will immediately contact the Superintendent, who will immediately contact the school attorney;
  3. the administrator or designee will await guidance on how to proceed from the school attorney;
  4. the school attorney will promptly review the documentation provided by the immigration authorities, discuss the issue with the administrator or designee, and provide a determination as to whether the request should be granted or denied, pursuant to requirements of law as outlined in sections V, VI, and VII below; and
2. the administrator or designee will promptly relay the determination to the immigration authorities. If the request was granted, district staff will promptly comply with the immigration authorities’ request. If the request was denied, immigration authorities will not be permitted to access school property, information, or students.
3. the administrator or designee will promptly relay the determination to the immigration authorities. If the request was granted, district staff will promptly comply with the immigration authorities’ request. If the request was denied, immigration authorities will not be permitted to access school property, information, or students.

Before granting any request to enter school property or release a student to immigration authorities, the request must be accompanied by a valid judicial warrant or court order as described in Sections V, VI, and VII below. Administrative warrants, immigration detainers, and notices to appear are not sufficient to allow an immigration authority to access non-public areas of the school or take a student into custody. Emergency response actions may be initiated as needed according to the district’s safety plans.

Additionally, the district will not permit immigration authorities to question a student without the consent of the parent, and the parent is given the opportunity to attend the questioning, unless prohibited by a valid judicial warrant or court order.

If immigration authorities detain, question/interview, or take custody of a student, or attempt to do so, the Building Principal or designee will immediately notify the parent(s), unless a valid judicial warrant or court order prevents the school from doing so.

Whenever immigration authorities request or attempt to enter school property or take custody of a student, the Superintendent will notify the State Education Department’s Privacy Office.

III. Notice to parents

The Building Principal will notify parents of their legal rights and protections under the law, this policy and this regulation regarding student privacy and safeguards. This will be done via the Parent Resources section of the district website.

IV. Safeguarding Students in the Absence of Parents

Upon initial enrollment and at the start of each school year, the district will request that all parents provide the school with primary and backup contact information for themselves, that of emergency contacts in case the parent is not available, that of other persons authorized to pick up the student, and that of any persons authorized to take custody of the student in the parent’s absence, and will ask if there is a designated Standby Guardian or Person in Parental Relationship. The district will follow up with parents who have not provided such information and stress its importance. The district will also inform parents that this information can be updated at any time throughout the year by contacting the School Counseling Office at their child’s school.

When school personnel become aware that a student’s parent has been detained by immigration authorities, or they have not picked up a student from school or a school function as scheduled, the student will remain safely with school personnel on the premises, at school, or other safe location. If this occurs while the student is on the school bus home, the bus driver will confer with the Transportation Supervisor and/or Building Principal or designee to determine whether to bring the student back to the school or other district building that is staffed by school personnel. School personnel will explain the situation to the student, assess the student’s immediate needs, and refer the student to school counseling, social work, or mental health services as appropriate. School personnel will discretely contact the following people by all available means, and document the attempts:

1. The student’s parent(s); then
2. A Standby Guardian or Person in Parental Relationship designated by the parent(s), if any; then
3. A person designated by the parent(s) as authorized to take temporary custody of the student, if any; then
4. Emergency contacts provided by the parent(s).

If the above individuals cannot be reached, or cannot provide appropriate care for the student, after school personnel have made reasonable efforts, school personnel will contact local social services, children and family services, the School Resource Officer, local law enforcement, or other appropriate agencies. School personnel may only contact the Statewide Central Register for child abuse and maltreatment reporting as a last resort, or if they have reasonable cause to suspect the child is neglected or abandoned.

For students who disclose to school personnel that they were contacted by immigration authorities, school personnel will encourage the student to contact their immigration attorney, if they have one and have not already done so, or if they do not have an attorney, contact the New York State Office for New Americans at 1-800-566-7636, and assist them in doing so, if necessary. School personnel will do the same for students whose parents are known to have been detained by immigration authorities.

The district will document the name and contact information of the person and/or entity to whom the student was released, and attempt to provide the parents with this information. If needed, the district will transport the student to the person or entity taking custody of the student.

As applicable, district personnel will take any actions necessary to continue the student’s attendance in the district, or facilitate the transfer of the student’s records to a new school district.

If the student continues attending district schools, district personnel will follow up with the student and/or the person or entity who took custody of the student as soon as is practicable to promote continued attendance. If applicable, school personnel will contact the district’s McKinney-Vento liaison to assist the student.

V. Restriction on Using School Resources for Immigration Enforcement Purposes, and Sharing Information with Immigration Authorities

Release of student information is governed by federal and state laws and regulations, outlined in district policies 5500 and 8365 (and accompanying regulation). School registration is governed by state regulations and outlined in district policy 5150. Under Education Law §3201-b, school district personnel are prohibited from:

1. Using school resources for immigration enforcement purposes;
2. Disclosing, or threatening to disclose, information or records about actual or perceived citizenship or immigration status of a student or student’s family, except as listed below;
3. Inquiring, or collecting information, about a student or their family’s citizenship, immigration status, nationality, or country of origin, except as listed below;
4. Disclosing to employees of an immigration authority personally identifiable information, including name, Social Security Number, physical description, associated addresses, phone number, financial/medical info, place of employment of a student or family, except as listed below;
5. Designating immigration status, citizenship, nationality, or national origin as “directory information;”
6. Using registration and enrollment requirements or procedures that have the intent or effect of delaying or denying the enrollment of non-citizen students, including delaying the enrollment and attendance in class of students if they cannot immediately provide all documents required for registration, including proofs of residency and age; and
7. Implementing policies, procedures, practices, or actions that have the intent or effect of deterring a student from participating in or denying a student the benefits of programs or activities, or that exclude parents from participating in parental engagement activities, on account of perceived or actual citizenship or immigration status.

Exceptions to the above are when disclosure is required by law, for example:

1. To comply with a federal judicial warrant or court order signed by a federal U.S. District Court or Magistrate judge;
2. To administer a public program or benefit requested by the family (including educational programs or services or social services);
3. To exchange information regarding a specific person’s citizenship or immigration status with the U.S. Department of Homeland Security or any other federal, state, or local governmental entity; or
4. For voter registration.

VI. Restricting Access to District Property by Immigration Authorities

1. School district personnel are prohibited from granting or facilitating access to areas of school property or facilities that are not open to the public to immigration authorities, unless they have a valid federal judicial search or arrest warrant signed by a federal U.S. District Court or Magistrate judge.
2. Civil immigration warrants, administrative detainers, notices to appear, and other non-judicial documents do not grant sufficient authority to access non-public areas of school

VII. Restricting Access to Students by Immigration Authorities

The questioning of students by law enforcement is addressed in district policy 5300.

Under Education Law §3201-b, school district personnel are prohibited from:

1. Granting permission for or facilitate the release, transfer, surrender, escort of or delivery of a student into the custody of an immigration authority solely because a parent has been arrested, detained, or taken into federal custody, except as listed below;
2. Releasing, transferring, surrendering, escorting, or otherwise delivering a student into the custody of an immigration authority based on a civil immigration warrant, immigration detainer, notice to appear, or other nonjudicial document;
3. Assisting immigration authorities in locating, questioning, or detaining a student, except as listed below; and
4. Using immigration authorities as interpreters or translators for any law enforcement matters involving individuals they interact with during the course of their employment duties.