Public Schools at the Intersection of Immigration Reform and Civil Rights

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, April 5, 2017

The federal government is ramping up efforts to locate, detain and deport illegal immigrants. As a result, school districts need to be prepared for the possibility that various agencies, including local police, may request assistance and cooperation with such efforts.

However, per the U.S. Supreme Court, all children have the right to equal access to a free public education regardless of their immigration status. Indeed, under Michigan law the compulsory attendance requirement applies to undocumented children to the same extent that it applies to all other students. Our state civil rights laws (the Elliot-Larsen Civil Rights Act) not only guarantee full and equal enjoyment of public accommodations and services, but also specifically prohibits discriminating against an individual based on national origin, with no exception or caveat with respect to citizenship status.

Districts in general, and administrators in particular, should anticipate that they may be called upon to cooperate with immigration enforcement officials. As such, a plan should be in place with respect to how these competing interests will be balanced in order to minimize disruption to students, families and the community, as well as reduce the potential for liability. Administrators and staff should be familiar with Immigration and Customs Enforcement’s Sensitive Community Locations Policy, which specifically deals with how enforcement actions such as arrests, searches, surveillance and so forth must be conducted within a school setting. Understanding the protocols that govern these types of situations on or around school property will assist administrators as they attempt to navigate this delicate issue.

In addition, the Michigan Department of Civil Rights has a Community Outreach Division that can assist with educating staff, students, parents and community members with respect to state and federal civil rights laws. The Michigan Department of Education can also be a source for guidance. Districts that desire to take a more proactive approach can always reach out to local law enforcement and other community leaders in order to establish an ongoing dialogue concerning this issue. Such action may also help to ensure that there are no miscommunications with respect to how the school district intends to handle these matters and to what extent local police authorities expect to become involved in immigration enforcement situations.

For districts with substantial immigrant populations it is particularly important that school leaders communicate directly with those communities and reinforce the notion that your schools are, and will continue to be, a safe place to learn and grow. All parents should be informed that your district intends to fully comply with all applicable civil rights laws. Likewise, be cognizant of immigration enforcement activities that may impact your district and, to the extent possible, be ready to assist students who may be impacted by such. Clearly, any child who has experienced a sudden separation from a parent or loved one may be in need of counseling or other support services. It is important, however, that the district refrain from providing direct legal advice.

Finally, an early conversation with district legal counsel, wherein a plan is developed regarding how to deal with sudden or unexpected immigration enforcement demands, would be wise. An attorney representing the interests of the district should always be involved, particularly when weighing the demands of a government enforcement agency against the civil rights of a student.

For more on this see “A Letter From Michigan Department of Civil Rights Director Agustin Arbulu and State Superintendent Brian Whiston” dated March 31, 2017.

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