Key Reminders: Protecting The Rights Of Undocumented Students

07.12.2019

With recent statements from Washington, D.C. that the federal government will commence targeted immigration enforcement actions throughout the country, it remains critically important to understand that undocumented students, including students who are beneficiaries of the Deferred Action for Childhood Arrivals (“DACA”) program, have rights under our federal and state laws, including the United States Constitution.

Below are key reminders for California’s educational institutions about the rights of undocumented/DACA students under our federal and state laws and related recommendations focused on creating a healthy, safe, and discrimination free environment for every student, irrespective of immigration status.

All students in our country, irrespective of their immigration status, have the right to attend public elementary or secondary school under the U.S. Constitution, as specifically held by the U.S. Supreme Court in Plyler v. Doe, 457 U.S. 202 (1982). In California, moreover, all children ages 6 to 18 years must be enrolled in school. See Cal. Educ. Code § 48200.
Undocumented/DACA students are eligible to apply and can gain admission to California public postsecondary institutions.
No student should be subjected to discrimination, harassment, and/or bullying under our federal and/or state anti-discrimination laws based on national origin or immigration status, in addition to other protected status characteristics, such as race, color, sex, or disability. See, e.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.; Cal. Educ. Code § 200 et seq.; and Cal. Educ. Gov’t Code § 1135.
Administrators, professors, teachers, and other personnel of educational institutions do not have an affirmative duty to assist the U.S. Immigration and Customs Enforcement agency or other federal immigration enforcement officials in the carrying out of their immigration enforcement responsibilities, i.e., raids or removal (deportation) actions.
Educational institutions should not release student records unless there is parental or student consent, a judicial order, a lawfully issued subpoena, or as otherwise permitted by law. See, e.g., Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. §1232g; 34 CFR § 99.31; and Cal. Educ. Code § 234.7.
Educational institutions should provide information to employees, students, parents, and the greater community on governing antidiscrimination/harassment/ bullying policies, in addition to related procedures for filing complaints based on national origin or immigration status discrimination. Educational institutions should also promptly and equitably address any form of discrimination/harassment/bullying, take reasonable steps to reduce the likelihood of its recurrence, and implement appropriate remedies. Cal. Educ. Code § 234.1.
Educational institutions should have a policy clarifying that any request made by federal immigration enforcement authorities to access a campus or information regarding a student should be immediately forwarded to the Office of the Superintendent, Chancellor, President, Board, or designee to review and respond in consultation with legal counsel. See, e.g., Cal. Educ. Code § 234.7.

With regard to the reported impending immigration enforcement actions, albeit possible, it is not likely that they will occur on college or school campuses given that existing federal policy guidance provides that such enforcement actions “should generally be avoided” at these “sensitive” locations. See Memorandum on Enforcement Actions at or Focused on Sensitive Locations, U.S. Immigration and Customs Enforcement (Oct. 24, 2011) and Memorandum on Enforcement Actions at or Near Certain Community Locations, U.S. Customs and Border Protection (Jan. 18, 2013).

Please contact the authors of this Alert should you require advice and counsel on the rights of undocumented/DACA students at your educational institution and related matters.

The following resources may prove useful to your educational institution with regard to the rights and protections afforded to undocumented students under federal and state laws, but please note that these resources are neither endorsed by AALRR nor constitute legal advice.

Know Your Rights