Under the current federal administration, the U.S. Department of Homeland Security (DHS) has lifted restrictions that previously prohibited Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) agents from carrying out immigration enforcement actions, including arrests, in protected areas such as schools, playgrounds, child care centers, and school bus stops.
The Department encourages LEAs to work with their solicitors to establish a written policy and standard operating procedures for what to do if immigration enforcement agents arrive on LEA property or seek information about students, family members, employees, or others for immigration enforcement reasons.
This advisory does not provide legal advice. Consult your solicitor or another licensed attorney for legal questions about a specific situation.
Fundamental Principles
Every child of school age who is a resident of a Pennsylvania school district is entitled to a public school education. An essential part of this right is a safe and welcoming learning environment in which all children in the Commonwealth have equal access to a basic public elementary and secondary education.d
The U.S. Supreme Court in Plyler v. Doe (1982) found that all children, regardless of actual or perceived immigration status, have an equal right to a free public education. Based on this ruling, and as reflected in State Board of Education regulations (22 Pa. Code § 11.11), LEAs are not legally permitted to inquire about a child’s or parent’s immigration status during the admission process. For both enrollment and residency determinations, a school may not legally request or require any of the following:
- A Social Security number;
- The reason for a child’s placement, if not living with natural parents;
- A child’s or parent’s visa;
- A child’s or parent’s immigration status;
- Agency records;
- A court order or records relating to a dependency proceeding, except in the limited circumstances described in the PDE Enrollment of Students Basic Education Circular; or
- Legal address for families enrolled in the Address Confidentiality Program (ACP). School records from the student's former school will be forwarded through the ACP. If there are questions about the family's eligibility for enrollment, contact the ACP at 1-800-563-6399.
Further, a student’s right to be enrolled in school cannot be conditioned upon their known or unknown citizenship or immigration status. LEAs should evaluate any policy that may have the effect of prohibiting or discouraging children from enrolling in school due to their citizenship or immigration status or that of their parent/guardian.
The Family Educational Rights and Privacy Act
The federal Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records. FERPA covers any educational agency or institution that receives federal funds. FERPA prohibits disclosure of personally identifiable information from educational records without the written consent of the student’s parent or guardian, or of the individual student if they have reached the age of 18. The law contains certain exemptions that allow for disclosure under specific circumstances. Additional information regarding FERPA protections may be found at the following website: FERPA | Protecting Student Privacy.
Before sharing any personally identifiable information about students, LEAs should work with their solicitors to ensure that the disclosure is permitted under FERPA.
Judicial Versus Administrative Warrants and Subpoenas
Immigration enforcement agents generally cannot access non-public spaces and obtain non-public information without consent, a judicial warrant signed by a federal or state judge, or exigent circumstances (e.g., necessary to avoid imminent harm to the public, national security, or staff and students). In the school context, areas that are not generally open to the public are considered non-public spaces.
Documents that may be presented by agents or officers during immigration enforcement include those listed below. This list is not intended to be exhaustive; consult with your solicitor for advice about specific situations:
- A judicial search warrant: an order signed by a state or federal judge that permits access to spaces where individuals have a reasonable expectation of privacy, or to records in which individuals have a reasonable expectation of privacy. A search warrant must identify the place or records to be searched.
- A judicial subpoena: an order issued under the authority of a state or federal court to compel production of documents and papers or to compel a person to testify in court at a future date. A subpoena recipient may challenge the subpoena in court before complying.
- A judicial arrest warrant: an order signed by a state or federal judge that authorizes law enforcement to take custody of a specific individual based on a finding of probable cause that the individual committed a crime. An arrest warrant alone does not authorize disclosure of non-public information or entry into non-public spaces to search, but law enforcement officers may collect evidence in plain sight or incident to arrest.
- An administrative warrant (sometimes called an immigration warrant, Form I-200, or Form I-205 when issued by ICE) or administrative subpoena: a document issued by a federal agency official. Administrative warrants and subpoenas do not authorize access to non-public spaces without consent. Generally, administrative warrants and administrative subpoenas do not permit disclosure of non-public information without consent.
Interacting with Immigration Enforcement Agents
If immigration enforcement agents come to a school or other LEA facility, staff have the right to:
- Ask for valid identification and a law enforcement badge to confirm the agent’s agency and identity.
- Ask the agent why they are there and on what authority they are relying (judicial warrant, immigration warrant, etc.).
- Ask for a copy of any warrant or other legal document.
- Have an attorney review warrants or other legal documents for authenticity and validity.
Staff should not physically interfere with agents or immigration enforcement activity.
Considerations for Pennsylvania LEAs in Formulating Policies
The Department recommends that LEAs, in conjunction with their solicitors, develop clear, written policies and procedures for what to do if immigration enforcement agents arrive on LEA property or seek information about students, family members, employees, or others for immigration enforcement reasons.
When adopting such policies, LEAs, in consultation with their solicitors, may wish to consider the following principles. These principles can be adopted to guide LEAs’ responses to numerous possible scenarios.
1. Establish, for each school or other facility, a point person(s) by name and phone number who will interact with immigration personnel and review legal documents.
A point person should be identified for interacting with immigration agents and handling any requests for information from immigration agencies. Staff should know to immediately contact the point person in the event immigration agents arrive on campus or seek information. Ensure that the point person knows to request the law enforcement officer’s credentials and any documentation (including warrants or subpoenas) relating to the visit. The point person should make a copy of the officer’s credentials and maintain the copy with any documentation provided. Ensure that the point person knows to contact the solicitor, or another designated contact, to obtain guidance in responding to any request from the officer or providing any student information.
2. Establish a system to track records requests or subpoenas relating to immigration enforcement.
LEAs should ensure that requests for student information from immigration officials are promptly reviewed and logged so that the LEA is aware of what information has been requested and disclosed.
3. Establish policies that protect the privacy and dignity of students in the event of immigration enforcement activities.
Such policies may include steps to ensure that interactions between school officials and immigration agents take place outside the view of students; that, in the event a student must be removed from class, a teacher or other school official brings the student to the front office; and that the intercom is not used in such situations.
4. Ensure that data-sharing policies are up to date and consistent with FERPA.
Policies should be clearly communicated to all faculty, staff, and third-party contractors who might have access to student data. More information about FERPA can be found here: FERPA | Protecting Student Privacy
5. Ensure that student emergency contact information is up to date and accurate.
Advise parents/guardians to keep their child’s emergency contacts updated and accurate, and ensure that parents/guardians are immediately notified of any enforcement action involving their child, except in cases involving abuse or neglect or when directed not to do so by the officer. In addition, LEAs should consider developing policies and procedures to follow in the event a student’s parent/guardian is detained or deported.
LEAs should ensure that all staff are aware that a policy exists and know whom to contact with questions. LEA staff at entrances to schools or other facilities should be trained to recognize immigration agents and follow the specified procedures, including immediately contacting the designated point person(s). LEAs should utilize professional development opportunities to ensure that all staff are familiar with these policies.
LEAs should also communicate with families, as appropriate, about the steps that the LEA is taking to be prepared in the event that immigration agents arrive on school property or seek information about students or families. LEAs should also reassure families about their commitment to providing a welcoming environment for all students.
LEAs should promptly communicate to staff and families about immigration activity on LEA property. Clear communications and reinforcement of facility policies can help stop the spread of inaccurate rumors and minimize incidents that threaten public safety.
Additional Resources for LEAs
The toolkits below may assist LEAs in carrying out their mission to provide a physically and emotionally safe environment for all learners, especially during uncertain times. Additional resources are available on the Department’s website.
- Newcomer Toolkit: This toolkit from the U.S. Department of Education provides resources to address the linguistic, emotional, mental health, and academic needs of newcomer students.
- Addressing Trauma: The Pennsylvania Department of Education has compiled resources on trauma-informed practices and crisis response planning, such as updating school forms on who may pick up a child from school and policies on safe places for students to wait to be picked up from school, to assist schools with addressing student trauma and preparing for emergencies.
- Resources relating to Migrant Education from the Pennsylvania Department of Education.
- Resources relating to Homeless Education from the Pennsylvania Department of Education.