What if I.C.E. Comes Calling?
Since 2011, guidelines have been in place at Immigration Customs and Enforcement (I.C.E.) that “restrict immigration enforcement at sensitive locations such as schools, churches, and hospitals.”[1] On January 21, 2025, Acting Department of Homeland Security Secretary Benjamine Huffman issued a directive rescinding these guidelines.[2] This article will briefly address what school campus and district personnel should do if I.C.E. seeks records or an enforcement action on school property. With a new presidential administration, this is now an evolving area of law, and changes can occur at any time.
Education of Immigrant Students
The U.S. Supreme Court ruled in 1982 that a state cannot prevent children of undocumented immigrants from attending public school. Plyler v. Doe, 457 U.S. 202. Further, with a few exceptions, Texas requires students between the ages of six and nineteen years old to attend school for the entire period the program is offered. Tex. Ed. Code §§ 25.085, 25.086. The Pew Research Center in 2014 estimated that 13.4 percent of K-12 students in Texas had at least one parent who was an unauthorized immigrant.[3]
Request for Records or Information
Citizenship is not information a school would normally collect from families because it does not establish residence within the school’s geographic area, does not establish the student’s age, and does not confirm the student has received all required vaccinations. However, a school may have other information that reveals a student’s immigration status or, at least, country of origin. For example, a student’s shot records may be from a foreign country or in a foreign language. Therefore, simply telling I.C.E. the school does not have citizenship information might not be a correct response.
For public schools, the Family Educational Rights and Privacy Act (FERPA) provides parents, guardians, and eligible students (age 18 and over) with access to a student’s education records and prohibits personally identifiable information within those records from disclosure to third parties without the consent of the student’s parent, guardian, or eligible student. 20 U.S.C. § 1232g; 34 C.F.R. Part 99. Therefore, the general rule of FERPA prohibits disclosure of student information to a requesting agency like I.C.E., but there are exceptions.
The most frequently cited FERPA exceptions authorizing disclosure, “authorized government representative” and “health and safety emergency,” do not apply. 34 C.F.R. 99.31(10), 99.35 and 99.36. The former is limited by the purpose for which the information may be used—“necessary in connection with the audit and evaluation of federal- or state-supported education programs or in connection with the enforcement of or compliance with federal legal requirements that relate to such programs.” In other words, personally identifiable student record information may be disclosed only as necessary to administer federal grant programs like the Individuals with Disabilities Education Act (IDEA). The latter, “health or safety emergency,” also does not apply because the exception only applies to information that is necessary to protect the health or safety of the student or other individuals. In other words, there must be an articulable and significant threat before a school discloses personally identifiable student record information. Further, the scope of what information is disclosed, and to whom, is limited by the identified emergency and cannot extend beyond what is necessary to address the identified health or safety emergency.
A school can release information in response to a judicial order, valid subpoena, or search warrant, but only after making a reasonable effort to notify the parent or eligible student, unless the subpoena states on its face that parents may not be notified. 34 C.F.R. 99.31(9)(i). Further, a school may release any information it identified as directory information according to its annual notice to parents, guardians, and eligible students. 34 C.F.R. 99.31(11).
Therefore, if a request for student records is received from I.C.E., the requested information may be available as directory information under FERPA (provided parents have not signed the form seeking to withhold directory information). If the information sought is not directory information, then consider notifying the agency that (1) the school must be provided a subpoena or search warrant for any additional information; and (2) that the school must notify the parents before any additional information is released via a subpoena or search warrant.
Student Interviews and Arrests
School districts, “like the private owner of property, may legally preserve the property under its control for the use to which it is dedicated.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993). Further, the Fourth Amendment guarantees school districts, like other private property owners, the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV. “[B]efore police officers may conduct a search they must obtain a warrant or show that a recognized exception to the warrant requirement applies.” State v. Rodriguez, 521 S.W.3d 1, 10 (Tex. Crim. App. 2017); see also Murillo v. Musegades, 809 F.Supp. 487, 498 (W.D. Tex. 1992) (holding the Immigration and Nationality Act is limited by the Fourth Amendment). A search of private property is presumed unreasonable, and thus prohibited, if conducted without a warrant. Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978). Therefore, a school can control access to its property.
Student Interviews. Removing a student from class to be interviewed by law enforcement, including I.C.E. agents, is also analyzed under the Fourth Amendment to the U.S. Constitution which protects the right of people to be secure from unreasonable searches and seizure. U.S.C.A. Const. Amend. 4. This is a two-step analysis. First, whether the interview is considered a “seizure” depends on whether a reasonable person, in view of all the circumstances surrounding the incident, would have believed that he was not free to leave. Gates v. Texas Dep’t of Protective & Regul. Servs., 537 F.3d 404, 431 (5th Cir. 2008). The schoolhouse setting and age of the student are important factors to consider and lend themselves to the interview being a seizure if the interview is on campus and conducted by law enforcement or with law enforcement present. J.D.B. v. North Carolina, 564 U.S. 261, 276 (2011). Second, whether the seizure was unreasonable requires an inquiry into the nature and quality of the intrusion as compared to the governmental interest at play. Gates at 432. “An [] Agent may not question any individual as to his or her right to be or to remain in the United States unless the [] Agent has a reasonable suspicion, based on specific articulable facts involving more than mere ethnic appearance, that the individual is an alien.” Murillo v. Musegades, 809 F. Supp. 487, 498 (W.D. Tex. 1992).
Law enforcement officers correctly believe they do not need permission from parents, guardians, or school personnel to interview a student. While true, the above analysis addresses how an interview is conducted rather than the interview itself. A student can be questioned by officers walking home from school or, after being pulled from class, in a room on campus where the student reasonably thinks the student has no choice but to answer the questions presented. Permission is not required in either scenario, but the latter more likely than not constitutes a seizure and requires the intrusion be reasonable. Further, a District administrator can be present during the student’s interview unless the agent or officer objects to the administrator’s presence. Finally, students may refuse to answer an agent’s questions, but school administrators cannot refuse on the student’s behalf.
Student Arrests. Yes, students may be arrested at school in certain circumstances. This is clearly a seizure and requires probable cause. Murillo, 809 F. Supp. at 500. Further, under Texas law, law enforcement must give prompt notice to the student’s parent or guardian that the student is in police custody. Tex. Fam. Code § 52.02(b). However, “prompt” is situation specific. Therefore, it is a best practice, and generally required by local school board policy, for school administrators to notify parents as soon as practicable of a student’s arrest.
For both requests to interview or arrest a student school officials have three options. They can (1) produce the student for questioning or arrest and leave the reasonableness question to the requesting agency, (2) ask for additional information from the agent and make their own determination regarding the reasonableness of the request, or (3) ask for a search or arrest warrant as appropriate. A warrant is an assessment by a neutral judicial officer that the police have probable cause to make an arrest or conduct a search (i.e. question a student). Steagald v. U.S., 451 U.S. 204 (1981). In other words, when a warrant is issued, a judge has determined the requested interview is reasonable.
Therefore, if a request to produce a student for an questioning or arrest/detention is received from I.C.E., consider requesting an search warrant or arrest warrant before producing the student.
For assistance with agency requests for information or access, please contact your school lawyers at Brackett & Ellis, P.C. This communication does not, and is not intended to, create an attorney-client relationship or provide legal advice. These are general factual observations.
[1] Trump Admin Will Allow ICE, Border Patrol to Arrest Migrants at Churches, Schools – Newsweek, www.newsweek.com, accessed 1/22/25.
[2] Statement from a DHS Spokesperson on Directives Expanding Law Enforcement and Ending the Abuse of Humanitarian Parole | Homeland Security, www.dhs.gov, accessed 1/23/25.
[3] Children of unauthorized immigrants make up rising share of K-12 students, www.pewresearch.org, accessed 1/23/25.
