Information Regarding Recent Immigration-related Actions
Click here for NYSED Press Release: A.G. Schneiderman and State Education Commissioner Elia Advise Schools on Protecting Immigrant Students
From New York State Commissioner of Education MaryEllen Elia and New York State Attorney General Eric T. Schneiderman
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Recent immigration-related actions by federal officials have created fear and confusion across the country. New York State residents, whom both of our agencies and the New York State Board of Regents have pledged to serve, have communicated directly with our agencies about the anxiety and questions these actions raised. The New York State Office of the Attorney General (“OAG”) and the New York State Education Department (“SED”) write today to reaffirm to students, schools, families, and communities across the State of New York that our schools will remain safe havens where all students can learn.
Pursuant to the New York State Education Law, children over five and under twenty-one years of age who have not received a high school diploma are entitled to attend the public schools in the school district in which they reside without paying tuition. Moreover, school districts must ensure that all students within the compulsory school age attend upon full-time instruction.1 Undocumented children, like U.S. citizen children, have the right to attend school full time as long as they meet the age and residency requirements established by state law. Indeed, the U.S. Supreme Court held decades ago, in Plyler v. Doe, that school districts may not deny students a free public education on the basis of their undocumented or non-citizen status, or that of their parents or guardians.2
Accordingly, the OAG/SED have underscored this important right of undocumented students in guidance to school districts that, at the time of registration, schools should not ask questions related to immigration status that may reveal a child’s immigration status, such as requesting a Social Security number.3 We also have advised that, while school districts may need to collect certain data pursuant to state and/or federal laws, they should do so after a student has enrolled in school so as not to inadvertently give the impression that information related to immigration status will be used in making enrollment determinations.4
Recently, our agencies have received questions specifically concerning school districts’ obligations with respect to possible inquiries from representatives of U.S. Immigration and Customs Enforcement (“ICE”), including requests to meet with or interview students, or to obtain access to student records. As you know, various laws impose legal duties on school districts with respect to law enforcement questioning students at school and the confidentiality of student records, including the New York Family Court Act (“NYFCA”) and the federal Family Educational Rights and Privacy Act (“FERPA”). A breach of such duties, even to fulfill a request from federal immigration authorities, could expose school districts to liability. For this reason, our agencies encourage all school district employees to consult with their superintendents and school attorneys immediately upon receipt of any request made by a federal immigration official. Prior to responding to any such request, school district employees should work with their superintendents and attorneys to determine whether honoring such a request could cause the school district to violate a law of general applicability.
Requests to meet with or interview students. It has long been SED’s position that law enforcement officers may not remove a student from school property or interrogate a student without the consent of the student’s parent or person in parental relation, except in very limited situations (e.g., when law enforcement officers have a valid warrant or when a crime has been committed on school property).5 School officials are encouraged to cooperate with law enforcement within the bounds of the law and local school policy. We strongly recommend that, should ICE or other federal immigration officials appear at a school seeking access to students (for interviews and/or questioning), a school district should advise all staff to immediately contact the superintendent and the school district’s attorney for guidance, particularly with respect to its duties under the Education Law, Plyler, and NYFCA before allowing access to a student.
Requests to access student education records. Similarly, our agencies advise that, upon receipt of a request from immigration officials to access student education records, school districts should immediately consult with their attorneys, as compliance with such request through disclosure may violate FERPA.6 FERPA generally prohibits school districts that receive federal funds from releasing personally identifiable information (“PII”) contained in a student’s education records without the consent of the parent or eligible student. FERPA permits such disclosure without consent only if the disclosure meets certain limited conditions set forth in the law’s implementing regulations. These limited conditions include requests made by specifically enumerated individuals of the federal government7. However, a request from ICE or other federal immigration officials to access student PII from education records does not appear to satisfy any of the FERPA exceptions to the general rule that a parent or eligible student must consent to disclosures to third parties.8
SED’s Office of P-12 Education Policy is also issuing guidance today to schools and districts regarding the Dignity for All Students Act (“DASA”) in light of reports involving incidents of harassment in schools across the country in recent weeks. That guidance will be available here: http://www.p12.nysed.gov/dignityact/documents/dasa-guidance.pdf.
At a time when so many questions are being raised on what immigrant-related actions will be taken by the federal government, it is vital that we, as educators and government officials, remind our school communities about the importance of inclusiveness and the right of all students to receive an education without fear of reprisal simply by being in school. Our classrooms must remain safe havens for all children. We again thank you for all the work you do to support our students, families, and communities.
1 See Educ. Law §§ 3202(1), 3205.
2 Plyler v. Doe, 457 U.S. 202 (1982); see also Appeal of Plata, 40 Ed. Dep’t Rep. 552, Decision No. 14,555.
3 See, e.g., Cosimo Tangorra, Jr., “Dear Colleague” Letter, New York State Education Department (Sept. 10, 2014), http://www.p12.nysed.gov/sss/documents/EducationalServicesforRecentlyArr....
4 With specific reference to Social Security identification, SED does not require districts to collect students’ Social Security cards or numbers for any purpose or at any time, either prior to or following student enrollment.
5 See, e.g., N.Y.S.E.D. Counsel’s Opinion 91 (June 17, 1959) (“officers of any kind may not remove a child from a school building while a child is properly in attendance without permission of the child’s parents for questioning”); see also N.Y.S.E.D. Counsel’s Opinion 148 (Feb. 23, 1965) (“The school particularly does not have custody of pupils for the purpose of authorizing law enforcement officers or other third parties to interrogate pupils or to remove them from the premises for any purpose whatever.”) This position is based on various laws including, inter alia, NYFCA, which requires that a police officer must make every reasonable effort to immediately contact a child’s parent or anyone responsible for the child’s care when a child under the age of 16 is taken into the custody of law enforcement, and further holds that such a child cannot be interrogated, unless and until his or her parent or guardian, if present, is advised of the child’s rights and afforded an opportunity to attend the interrogation. See N.Y. Family Court Act § 305.2; Matter of Jimmy D., 15 N.Y.3d 417 (2010).
6 See 20 U.S.C. § 1232g.
7 Pursuant to 34 C.F.R. §99.31(a)(3), disclosure may be made, subject to the requirements of 34 C.F.R. §99.35, to authorized representatives of the U.S. Comptroller General, the U.S. Attorney General, the Secretary of the U.S. Department of Education, or State and local educational authorities.
8 See 34 C.F.R. § 99.31.
From Jhone M. Ebert, Senior Deputy Commissioner for Education Policy: Available Guidance and Resources to Combat Harassment, Bullying and Discrimination in Schools in Light of Recent Immigration-related Action
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In recent weeks, reports regarding incidents of bullying, discrimination, and harassment in schools across the country have surfaced in the news media. In addition, there have been recent immigration-related actions by federal officials that have created fear and confusion across the country. The New York State Education Department (“NYSED” or “the Department”) takes very seriously any action that compromises the school climate in which our students come to learn every day. In New York State, advocates, parents, and school staff have called upon the Department to expand and build upon existing guidance and resources to combat harassment, bullying, and discrimination, as well as to enhance efforts to build and maintain positive school climates pursuant to the Dignity for All Students Act (“DASA” or “the Dignity Act”).
New York State’s Dignity Act was signed into law in 2012 to provide students with a safe and supportive environment free from discrimination, harassment, and bullying on school property, a school bus and/or at a school function, and was amended in 2013 to include cyberbullying1. The law requires schools to provide students, persons in parental roles, and staff with information about DASA and to develop policies and procedures that require a safe school environment. Specifically, DASA requires school districts to develop Codes of Conduct that prohibit harassment, bullying (including cyberbullying), and discrimination against students by other students or school employees, as well as provisions for responding to incidents of discrimination and harassment and reporting such incidents to NYSED.
As described below, NYSED, together with the New York State Office of the Attorney General (“OAG”), has issued guidance and resources and provided technical assistance to help school staff, students, and parents report and address incidents where immigrant students face barriers to enrollment in New York State public schools. A joint guidance document issued by NYSED and the OAG in August 2016 includes a sample form for reporting and investigating DASA incidents.2 The Department wishes to augment this important work by reminding schools and families that guidance and technical assistance, safe and supportive schools are available from the Department.
NYSED encourages districts, parents, and guardians who have questions regarding DASA to contact NYSED for guidance and technical assistance regarding proper investigation protocols and procedures and best practices in creating and maintaining a safe and supportive school environment. The Department can be contacted at:
- The Office of Bilingual Education and World Languages (OBEWL) at (718) 722- 2445 or firstname.lastname@example.org or
- The Office of Student Support Services (SSS) at (518) 486-6090 or email@example.com
Additionally, individuals with questions regarding DASA who need language assistance can contact the Language Regional Bilingual Education Resource Network (RBERN) Parent Hotline, housed at New York University (“NYU”) by:
Completing an inquiry form here:
Phone: (800) 469-8224
Fax: (212) 995-4199
NYS ELL Parent Hotline Team
c/o NYS Statewide Language RBERN at NYU MetroCenter
726 Broadway – 5th Floor New York, NY 10003
Individuals may also appeal a district’s action pursuant to Education Law §310. Education Law §310 provides that parties considering themselves aggrieved by an action taken at a school district meeting or by school authorities may appeal to the Commissioner of Education for a review of such action. Information on filing appeals is available in English, Spanish, Arabic, Chinese (Simplified), Bengali, and Haitian Creole at: www.counsel.nysed.gov.
Please note that the Department is committed to safeguarding the privacy of personally identifiable student level information and handles all such information in accordance with applicable privacy laws and regulations, including the federal Family Educational Rights and Privacy Act (“FERPA”).
The Department will be issuing resources for parents, guardians, and other interested individuals regarding DASA, translated into the top ten languages spoken across New York State.
In addition, NYSED has identified the following resources and tools that can help school staff, students, parents, and communities. Please use these resources where applicable, and join us in our efforts to ensure the safety and health of all children by aligning these tools with your school communities’ goals and needs.
- NYSED and NYS Attorney General’s Letter to District Superintendents and Guidance: http://www.p12.nysed.gov/dignityact/documents/SED- AGLttrandGuidance8-31-16.pdf
- Addressing Bullying, Harassment, Intimidation, and Discrimination in our Schools: http://www.p12.nysed.gov/dignityact/documents/PreventBullyingInYourSchool_N ov2016.pdf
- Model training materials to assist school districts in training school employees: https://ag.ny.gov/sites/default/files/dasa_training_materials_final_-_8.30.16.pdf
- Dignity for All Students Act, inclusive of a “Resource and Promising Practices Guide for School Administrators & Faculty” with additional guidance and tools on creating safe and supportive schools: http://www.p12.nysed.gov/dignityact
- New York State Center for School Safety Quick Link Resources for Teaching Tolerance, and maintaining safe and healthy learning environments: http://www.nyscfss.org/#!quick-links/c13iz
- NYSED information regarding School Emergency Response Planning and Mental Health Resources for Schools: http://www.p12.nysed.gov/sss/ssae/schoolsafety/save/
- New York State Center for School Health updated Mental Health and Counseling Resources Page: https://www.schoolhealthny.com/site/default.aspx?PageType=3&ModuleInstance ID=190&ViewID=7b97f7ed-8e5e-4120-848f-a8b4987d588f&RenderLoc=0&FlexDataID=108&PageID=126
Once again, thank you for your efforts every day to support our students, families, and communities across New York State. When we stand together, we can make sure that our students and school communities feel safe and supported in their school environments. As always, please reach out to us should you need to discuss these important topics or share any concerns by contacting the Office of Student Support Services at 518-486-6090, or firstname.lastname@example.org or the Office of Bilingual Education and World Languages at 718-722-2445, or email@example.com
1 For additional guidance and resources related to the Dignity Act please visit: http://www.p12.nysed.gov/dignityact/.
2 This guidance can be found at: http://www.p12.nysed.gov/dignityact/documents/SED-AGLttrandGuidance8-31-16.pdf