Many school districts in Ohio are home to large immigrant populations. Recently, United States Immigration and Customs Enforcement (ICE) made national headlines when it raided Mississippi food processing plants, carrying out its largest immigration raid in a decade. As a result, Ohio’s schools may already be fielding questions from students and staff alike regarding what to do if ICE appears in their district. In addition to reviewing the guidance below, school districts should work with their legal counsel to establish best practices for employees that align with district policies and procedures.
1. Can ICE come onto school district property?
It can, but ICE has a policy restricting the ability of its agents and officers to enter “sensitive locations” such as schools. In 2011, ICE issued a “Sensitive Locations” Policy regarding when and whether ICE officers and agents could carry out enforcement actions at certain types of locations, including schools. ICE, Enforcement Actions at or Focused on Sensitive Locations, at 1 (Oct. 24, 2011) (“SL Policy”). The SL Policy is designed so that ICE’s enforcement actions “do not occur at nor are focused on sensitive locations such as schools” with limited exceptions. For example, if exigent circumstances exist (an issue of national security, an imminent risk of violence or physical harm, the immediate arrest or pursuit of a dangerous felon, etc.), ICE may take action at a district. But it is more likely that ICE agents would need to obtain prior approval from ICE administration before carrying out operations on school property.
2. Can ICE arrest a student?
ICE typically would need a warrant to enter a school facility for purposes of arresting a student. However, there are a few circumstances when an immigrant can be arrested without a warrant, such as when that immigrant has been convicted of certain criminal offenses, or if the ICE officer has reason to believe an immigrant is likely to escape before a warrant can be obtained.
If ICE comes to a school district to arrest a student, employees should follow any board policies which typically would apply to law enforcement authorities. Federal law requires the ICE officer to identify himself or herself as an immigration officer who is authorized to execute and arrest, state that the person is under arrest, and the reason for the arrest. If a situation should arise where ICE arrests a student, employees should inform the administration immediately so that they may notify the student’s parent/guardian/sponsor.
3. Can ICE talk to or interrogate a student?
Federal law authorizes ICE to conduct interrogations and detentions that do not amount to an arrest. However, like other law enforcement agencies, ICE is subject to the Fourth Amendment, which applies to citizens and aliens alike. School employees should treat ICE requests to interview students similarly to requests by local law enforcement to conduct interviews.
Because there could be Fourth Amendment concerns, employees should immediately notify the superintendent of any request by ICE to interview or interrogate a student. Additionally, as with an arrest of a student, a school employee who becomes aware that ICE is interviewing or interrogating a student should inform the administration immediately so that it may notify the student’s parent/guardian/sponsor.
4. Can ICE ask for student records or other documents?
The Family and Educational Privacy Act (“FERPA”) prohibits districts from releasing personally identifiable student information, aside from information that the district has identified as directory information. A district only may release directory information to ICE, unless the district has consent from the student’s parent/guardian or ICE presents a valid subpoena.
5. What should I do if an ICE agent comes to my building?
Step 1: Ask the ICE officer/agent why they are present at the school district and if there is an imminent threat to staff or students.
- If the officer/agent states there is an imminent threat, immediately notify the superintendent, ask what ICE plans to do, and otherwise follow your district’s crisis or emergency management plan.
- If the officer/agent asks to talk to, interrogate, or arrest any student, contact an administrator, and proceed to Step 2.
- If the officer/agent asks for copies of records, proceed to Step 2.
Step 2: Ask the ICE officer/agent for any paperwork regarding the visit (notice, warrant, subpoena, etc.). Make a copy of any such document and contact the superintendent so that he or she may contact board counsel to determine appropriate next steps.
6. One of my students believes his/her parent(s) or legal guardian(s) is detained in an ICE raid. Can I help that student?
The U.S. Department of Education (“DOE”) and the U.S. Department of Justice (“DOJ”) have taken the position that school districts generally may not ask students or their families about their immigration status. The DOE and DOJ explained that requiring information regarding a student’s immigration status can have the effect of discouraging children from enrolling in schools if they or their parents/guardians are not U.S. citizens, and that discouraging these students from enrolling would constitute discrimination. School employees should prevent any appearance of inquiring into the immigration status of the students or their family members.
If an employee wishes to provide information to students, they should do so without inquiring into the student or family’s immigration status, and they should not take action to assist a student or a student’s family in avoiding ICE action. Aside from these concerns, school employees may provide students with factual information in response to a concern or question the student raises. School districts should work with their board counsel to determine what information or guidance employees can provide to a student facing that situation.