Practice Advisory: The Legal Authority for “Sanctuary” School Policies

PRACTICE ADVISORY
The Legal Authority for “Sanctuary” School Policies

JUNE 2017


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SUMMARY

Since Donald Trump’s election as president of the U.S., schools have asked how far they can legally go to protect their students using “sanctuary,” “safe zone,” or “welcoming” policies.[1] The National Immigration Law Center, in conjunction with several other organizations, prepared three model resolutions to provide to schools: one for K–12 schools in California, one for K–12 schools countrywide, and one for colleges countrywide (see section IV, below, for models). The models are meant to be live documents that can be updated as we continue to learn more about issues that arise and incorporate feedback from the implementation of policies across the country.

As more and more schools consider adopting such policies, many people have asked what legal authority exists to justify and enforce them. This practice advisory examines the core sources of legal authority for such policies and demonstrates how schools have used these fonts of authority to craft and pass resolutions to support their students.

Many schools have passed their own policies, which all faculty and staff of the schools must follow. These policies are intended to reinforce existing laws, policies, and constitutional rights and to advance and support the educational mission of the schools. Thoughtful and thorough implementation of these policies, which includes training all staff and faculty of a campus, will maximize their effectiveness. Because U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP), and other federal immigration enforcement agencies largely rely on consent and open access to effectuate their enforcement activities, putting protections in place ensures that federal agencies respect constitutional rights and do not undermine the rights or needs of students pursuing an education or staff attempting to educate all students. With all the employees of a school working together to implement these policies correctly—for example, by ensuring that any request to enforce immigration laws on school property is scrutinized by an appropriate official who can ensure that there is a valid warrant—the rights of the students and educational climate can be protected.

Schools can legally refuse to assist ICE and CBP in locating students, honoring detainer (hold) requests, or providing certain information to ICE and CBP. Schools can also create policies that limit ICE and CBP’s access to campuses by setting up a process that immigration agents or any law enforcement authorities must complete before coming onto a campus (including an approval process through the school board and a judicial warrant). However, if ICE or CBP have a valid judicial warrant that is specific to the individual for whom they are searching or if there is a health or safety emergency that requires them to enter a campus site, they have the legal authority to do so. Schools can and should create special resource centers or other on-site spaces for students and families to find resources and support.

School “sanctuary” policies may differ between K–12 schools and colleges/universities, because the laws that apply are different. For example, Plyler v. Doe applies in the K–12 context to protect the constitutional right of all students, regardless of their immigration status, to have access to a K–12 education.[2] Plyer does not apply to the higher education context. The tort law “special relationship” and duty of care that a school owes its students is much more established in the K–12 context, allowing for more protections of students, whereas in the college context it is offset by more mature students’ independence, privacy rights vis-à-vis the school, and contractual obligations.[3] Another example of where schools’ policies should differ is with respect to the Student and Exchange Visitor Program (SEVP), which applies only to certified colleges and universities that enroll foreign exchange students. SEVP-certified institutions must comply with mandatory data-reporting for a subset of students as well as enforcement agency access to campus to continue to receive certification to enroll those students. Thus, each of the considerations below must be weighed differently in a K–12 context versus a college/university context.


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NOTES

[1] The term “schools,” as used in this practice advisory, unless otherwise specified includes K–12 schools, adult schools, community colleges, other colleges, and universities.

[2] 457 U.S. 202 (1982).

[3] This takes on increased significance in the college dormitory context, where many dormitory contracts require a student to allow administrators to conduct routine entry or searches of their dormitories. See section II.C. for more information.