By: Yael Massen
Immigration in Indiana
Indiana’s demographics are rapidly changing, particularly among its younger, school-age population; Indiana’s top country of origin for immigrants is Mexico, with a growth rate of 480% for its overall Hispanic/Latinx population in the last 20 years. President Trump has been a vocal critic of the United States’ border security, which he perceives as compromised by undocumented immigrants entering the U.S. via Mexico, issuing “Executive Order: Border Security and Immigration Enforcement Improvements,” which led to Immigration and Customs Enforcement’s (ICE) Operation Border Guardian/Border Resolve, a four-day operation in 2017 targeting individuals who entered the country as unaccompanied children and family units. It is estimated that 34% of Indiana’s immigrant population is undocumented, many of whom are involved in local school systems as parents/guardians, students, and employees. Given Hispanic students contribute to a large portion of Indiana’s public school systems, particularly those of Marion, Elkhart, and Lake Counties, school corporations are faced with an immediate challenge: the obligation to educate and protect students entrusted in their care and the pressure of governmental security initiatives targeting undocumented persons.
Deferred Action for Childhood Arrivals (DACA)
Deferred Action for Childhood Arrivals (DACA) is an immigration policy that allows undocumented persons to receive a renewable two-year period of deferred action from deportation. DACA is not a path to citizenship. The Trump Administration initiated plans to phase out DACA on September 5, 2017. Prior to this date, individuals could newly apply for “DACAmented” status if they met the following conditions:
(1) They were under the age of 31 as of June 15, 2012,
(2) Immigrated to the U.S. before their 16th birthday,
(3) Continuously resided in the U.S. since June 15, 2007 up to the time of DACA application,
(4) Were physically present in the U.S. on June 15, 2012 and at the time of DACA application,
(5) Had no lawful status on June 15, 2012,
(6) Were enrolled in school, graduated, or obtained a certificate of completion from high school, obtained a GED, or were honorably discharged from the U.S. Armed Forces or Coast Guard, and
(7) Have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors, and do not pose a threat to national security or public safety.
Although, new DACA requests will not be processed, qualifying individuals who were previously granted deferred action under DACA are able to request renewals.
The U.S. Supreme Court set a precedent in Plyler v. Doe (1982) establishing a child’s constitutional right to receive a public education in the United States until the age of 21, regardless of immigration status. The Department of Education further interpreted Plyler in their 2014 Dear Colleague Letter (DCL), advising school districts not to inquire about a student’s immigration status over the course of their enrollment. The 2014 DCL advises school districts to review required documents and procedures that could potentially “unlawfully bar or discourage a student who is undocumented or whose parents are undocumented from enrolling in or attending school.” For example, “A district may not deny enrollment to a student if he or she (or his or her parent or guardian) chooses not to provide a social security number. If a district chooses to request a social security number, it shall inform the individual that the disclosure is voluntary, provide the statutory or other basis upon which it is seeking the number, and explain what uses will be made of it.”
School districts have an obligation to comply with FERPA (Family Educational Rights and Privacy Act), which prohibits the non-consensual sharing of student records without written consent from parents or “eligible students” above the age of 18, with exceptions (i.e. compliance with a judicial order or lawfully issued subpoena). A school’s obligation to protect undocumented children’s constitutional right to attendance and right to privacy absolves them from charges of harboring, concealing, or shielding undocumented persons from detection.
ICE on School Grounds
ICE actions on school property are rare; a 2011 ICE memorandum prohibits arrests, interviews, searches, and immigration enforcement-related surveillance at schools, churches, and other “sensitive locations” with narrow exceptions. Exceptions exist when enforcement involves a national security or terrorism matter; imminent risk of death, violence, or physical harm; the immediate arrest or pursuit of a dangerous felon, terrorist suspect, or anyone who presents a risk to public safety; or imminent risk of destruction of evidence to an ongoing criminal case. This policy is subject to change or be withdrawn under the Trump Administration, as has been the case with other Obama Administration policy memorandums.
ICE agents can enter school property to request records; school districts are encouraged to create protocols that are consistent with FERPA compliance. ICE agents often present an administrative warrant to request or copy records or otherwise solicit information about a specific person of interest. DHS may also issue an administrative warrant authorizing the arrest/detention of a person, usually to arrest a person for lack of immigration status. This type of warrant for arrest can only be conducted on public property, where there is not a reasonable expectation of privacy; a school does not meet this criterion. A school district would be within its rights to request that immigration execute a presented administrative warrant outside of and away from school grounds. Schools may be required to comply with an ICE agent who presents a valid criminal arrest warrant issued by a judge and/or when ICE personnel are conducting compliance/certification visits for the Student and Exchange Visitor Program (SEVP). A criminal warrant would authorize an ICE agent to enter school grounds in order to execute an arrest.