BILLINGS — Billings school administrators are outlining their procedures for what to do if federal Immigration and Customs Enforcement (ICE) agents arrive in schools and ask to speak with students.
Superintendent Erwin Garcia sent an email districtwide to educators stating that the school must allow judicial-warrant-carrying ICE agents in buildings, but educators must also protect the rights of students.
Federal law states that all students, including undocumented students, have the right to a public education, Garcia wrote. He also noted that the school is responsible for protecting students' personal data, including immigration status.
The memo comes in response toa new executive order signed by President Donald Trump allowing ICE agents to conduct enforcement activity in schools and other community areas, including churches and hospitals.
Below is the full email from Garcia:
Team,
There are reports that a new memo from the Trump Administration rescinds a 2021 memo by DHS Secretary Alejandro Mayorkas that designated schools and other community services as “protected areas.” This 2021 rule stated that ICE agents should not carry out any enforcement activities in these locations to the extent possible.
It is unclear whether this policy change will mean that ICE enforcement activities will take place on school property, but it allows for the possibility. We will continue to monitor this issue and update you as necessary.
Below is information for education leaders based on questions we have received. This is for informational purposes only. We recommend consulting with the administration to determine what is best for your school, staff, and students.
What legal protections exist for students and student data?
The landmark Plyler v. Doe Supreme Court case established that all children, regardless of immigration status, have the right to a public education. Schools cannot deny a student a public education based on immigration status.
The Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records and restricts the sharing of personally identifiable information (PII) without parental consent. This includes data that might indirectly reveal a student’s immigration status. FERPA applies to all educational institutions that receive funding under any program administered by the U.S. Department of Education, including K-12 schools and colleges/universities. Importantly, FERPA explicitly supersedes any conflicting state laws that attempt to mandate the release of protected student data. Additionally, FERPA prohibits schools from sharing student records with immigration or law enforcement agencies without consent or a judicial order. For more information: Law Enforcement Access to Student Records – A Guide for School Administrators & Ed Service Providers
It is anticipated that ICE agents may request data from schools. Ensure that all of your staff are trained on the protection of students' data under FERPA.
What is our protocol?
We will use the following protocol when dealing with ICE enforcement and ensure all staff know what to do under these circumstances.
- Welcome the agent(s).
- Contact the Superintendent.
- Ask them to provide identification.
- Make a copy of their ID and Inform the Building Principal AND District Office administration.
- Ask the agent(s) if they have any paperwork (e.g., subpoena, warrant, etc.). Ask them to make copies of the paperwork for legal review.
- Ask the agent(s) to sit in the office while the Principal / Admin arrives. Alternatively, you can ask them to sit in a more private area like the principal’s conference room.
- Keep notes of the date/time, names and titles of the agents, who you contacted at the District Office, the name of the student or staff member they are inquiring about (if known), etc.
- Don’t release FERPA-protected information or Directory Information unless approved by the Superintendent or the student’s guardian (in writing).
If ICE officers arrive at my school, do I have to let them in?
We have to follow the law. There are two types of warrants: administrative and judicial.
School administrators must allow access to the school if ICE officers present a judicial warrant. If ICE presents an administrative warrant, they cannot enter a home, school, or private space without explicit permission. However, appropriate parental consent should be obtained before any interview with a student is allowed. ICE agents do not generally have the authority to enter school property that is not otherwise open to the public.
What if an ICE agent asks to interview a student on school property?
Once again, ICE agents must have the appropriate warrant. If immigration officials request an interview with a student, the Superintendent should consult the school district’s attorney before taking action. Failure to protect a student’s legal rights against action by immigration officials could subject a school district to legal liability. The agent must have a valid warrant. School Districts should not give ICE agents access to students on school property without a valid warrant. If ICE agents present a valid warrant, they should be given access to students in a manner that is discreet, private, and away from other students. Because students have a right to attend school regardless of immigration status, a student’s mere attendance at school does not violate the law or create an exigent circumstance that would support ICE having access to a student (including a student’s school records) without a warrant or court order. A child also has the right against self-incrimination and may not be required to provide any information to establish his or her residency status. The child should be advised of the right to remain silent. The Superintendent should notify parents that immigration officials have requested an interview with the child.
If ICE agents approach a student on school grounds but outside of school, what should school staff do?
School personnel stand in loco parentis to a child whenever the child is on school grounds, even in public areas. School staff should determine whether ICE agents have a warrant to detain or arrest the student.
If they do not have a warrant, school staff should escort the child to the school office. If they do have a warrant, school staff should escort the student and the ICE agents to the school office. Contact the central office to ensure legal review of the warrant before releasing the student to ICE agents.
If school district staff knows of the immigration status of a student, can they be required to disclose it?
Suppose ICE agents come to school and informally ask school staff about a student’s immigration status, even though the school does not collect that information. In that case, staff should not answer questions without a warrant or court order. If school staff receive a warrant or court order, it should be provided to the central office before disclosure of records or information to ICE agents. The school district reserves the right to have staff accompanied by school district legal counsel anytime they are subpoenaed for questioning by ICE agents or law enforcement.
What steps should be taken if school staff become aware that a student’s parents have been detained but the student has not?
School staff should notify the administration of the parents’ detention to determine the student’s living situation and whether to call the child welfare agency. If the student has no legal guardian and there is no paperwork filed regarding a delegation of parental responsibility, the child welfare agency must be called. If the student has a legal guardian that is not a resident of the school district, the student should be treated as homeless and allowed to stay enrolled in school for the remainder of the school year.
We want to emphasize that all children, regardless of immigration status, are welcome in Billings Public Schools. The U.S. Supreme Court's decision in Plyler v. Doe (457 U.S. 202, 1982) guarantees that undocumented children and young adults have the same right to attend public primary and secondary schools as U.S. citizens and permanent residents. As a district, we do not collect or maintain information about the immigration status of students or their family members. If your child is experiencing fear, stress, or anxiety related to this federal policy change, please reach out to your school counselor for support.
Let me know if you have any questions.
Erwin Garcia
Billings Public Schools
Superintendent
