CSBA webinar covers new federal immigration directives

In a Jan. 23 CSBA webinar, CSBA experts in education law and policy reviewed all aspects of immigration policy related to California public schools. The majority of the webinar examined the impact that the Trump Administration’s new directive to rescind a longstanding “sensitive locations” policy — which previously limited immigration enforcement activities at schools, child care centers, churches and hospitals unless there was an immediate public safety threat — would have on local educational agencies. Under the new directive, immigration agents may conduct enforcement actions near or at schools.

With a word of caution that this is a time of significant uncertainty with regard to immigration law, CSBA General Counsel Kristin Lindgren-Bruzzone explained that the current set of executive orders from President Donald Trump do not focus on schools. “However, this is a pretty significant set of directives around immigration enforcement that likely will have some impact on schools,” she said.

Current law

Lindgren-Bruzzone reviewed the 1982 United States Supreme Court decision in Plyler v. Doe, which held that undocumented students must be provided with equal access to public education regardless of their immigration or citizenship status. The decision is based on the equal protection clause of the 14th Amendment. “Essentially what the court said was, if a state offers public education to some students, it must offer it to all, and immigration status is not a basis for discrimination.”

She also pointed to the Fourth Amendment, which addresses protection against unlawful search and seizure by the government and requires a warrant for law enforcement, including immigration enforcement officials, to enter private spaces where there is a “reasonable expectation of privacy.” “Typically, it has been the interpretation that inside of a school is not a public place and that in order to enter school facilities, a warrant would be required,” said Lindgren-Bruzzone.

Another current law that could offer protection for undocumented students is the Family Educational Rights and Privacy Act (FERPA), which protects student records from disclosure, absent consent of the parent or guardian or a student who is 18 or over. “Occasionally, immigration enforcement has sought student records and FERPA still protects student records but does allow them to be disclosed with consent or warrant or court order,” explained Lindgren-Bruzzone.

In state law, the California Constitution provides all students a right to attend campuses that are safe, secure and peaceful. Assembly Bill 699 (2017) prohibits discrimination in schools on the basis of immigration status and collection of information or documents regarding immigration or citizenship status of students, and imposes requirements when a parent is not available to pick up student that the emergency contact be alerted before anyone else. It also requires LEAs to provide information regarding immigration rights and requires the state attorney general to publish model policies.

The latest policy update from Attorney General Rob Bonta was issued in December 2024 and includes a quick reference guide for school officials.

New federal developments

While not specific to schools, President Trump issued an executive order on Jan. 20 called “Protecting the American People Against Invasion,” which sets forth the Administration’s expectation for immigration enforcement. Lindgren-Bruzzone pointed out section 17 of the document, which requires the Attorney General and the Secretary of the Department of Homeland Security to address what are called sanctuary jurisdictions, i.e., sanctuary cities and sanctuary states.

“I want to point out that there is a risk to designating any local agency, including a school district or a county office of education, as a sanctuary jurisdiction, in that they are threatening [to withdraw] federal funds for sanctuary jurisdictions and also threatening criminal or civil penalties. If you have questions about this, this is a great time to reach out to your legal counsel. CSBA’s Legal Services also provides information on this,” said Lindgren-Bruzzone.

Lindgren-Bruzzone noted that while executive orders are not statute that’s gone through both houses of Congress nor are they regulations that have undergone public comment, they are a gray area.

“I would say they’re not equivalent to a federal statute or a Supreme Court precedent,” she said. “What’s less clear is if they supersede state statutes. Under the Constitution, states are left to make their own decisions about how to handle certain things — immigration is not one of them. It is squarely within the authority of the federal government. An executive order on immigration probably carries more authority than an executive order on whether we can protect, for example, certain types of students in schools, which is more typically left to the states. So just keep that in mind, and that the Department of Justice under President Trump has taken the position that any federal actions supersedes any state and local laws due to what is in Article II of the Constitution regarding the president’s authority over national security and immigration.”

Lindgren-Bruzzone also reviewed what to do if Immigrations and Customs Enforcement (ICE) officers show up at schools. A judicial warrant, signed by a judge, requires staff to allow the entrance of ICE, as opposed to an administrative warrant, which does not hold the same legal requirements. She emphasized that this should not be the responsibility of front-line staff to deal with, and that these situations should be referred to the superintendent and legal counsel.

Following guidance issued by the attorney general, she advised LEAs that while they should not consent to access by an immigration enforcement officer unless they declare exigent circumstances or have a federal judicial warrant, they should not attempt to physically impede an officer, even if they appear to lack authorization to enter. If an officer enters the premises without consent, their actions can be documented while on campus.

Policy

CSBA Chief of Policy and Governance Technology Joshua Daniels reviewed sample Board Policy 5145.13 – Response to Immigration Enforcement, which will be updated and released soon to reflect the 2024 California attorney general guidance.

While the update is still in flux, some major concepts board members can expect include:

  • No student shall be denied equal rights and opportunities nor be subjected to unlawful discrimination, harassment, intimidation or bullying in programs and activities on basis of student’s immigration status or for refusal to provide information related to student’s immigration status
  • The superintendent or designee shall notify parents/guardians regarding children’s right to free public education regardless of immigration status and their rights related to immigration enforcement
  • Staff shall receive training regarding immigration issues, including information on responding to immigration-related requests for documents, access to school site or access to student
  • Staff shall not solicit or collect information or documents regarding student’s or student’s family member’s immigration status
  • Staff shall not seek or require documentation or information, to exclusion of other permissible options, that may indicate immigration status
  • Staff shall not provide assistance to immigration enforcement while on duty, or during work hours, except as required by state and federal law
  • The superintendent or designee shall report to the board any requests for information or access to schools by law enforcement for purpose of enforcing immigration laws
    • Provided in manner that ensures confidentiality and privacy

The policy will be accompanied by sample Administrative Regulations covering what to do when requests for immigration-related information or documents are submitted, when requests for access to students or school grounds are made and when law enforcement officers are on LEA property.

Daniels said that in addition to BP 5145.13, LEAs should look at their policies regarding  visitors and document retention.

View the webinar »