UPDATED

Secretary of Education Betsy DeVos told the House education committee Tuesday that it’s up to schools whether to report undocumented immigrant students to federal immigration authorities. That’s created quite a stir, and some say her view is totally inaccurate. Let’s go over some background.

The topic came up when Rep. Adriano Espaillat, D-N.Y., asked DeVos whether she thought a teacher or principal who “finds out that a certain child is undocumented or his or her family is undocumented” has the responsibility to notify Immigration and Customs Enforcement about that family.

“Sir, I think that’s a school decision, it’s a local community decision,” DeVos told Espaillat. “We have laws, and we also are compassionate. And I urge this body to do its job and address and clarify where there is confusion around this.” Espaillat repeated the question and stressed that immigration law is federal law, but DeVos did not change her stance. He did not say under what circumstances he envisioned educators and schools learning about a student or family’s immigration status.

Immigration advocates pounced. The Mexican American Legal Defense Fund said DeVos was guilty of “dereliction of duty” by sharing her viewpoint. “Any public school or school district that denies an education to any undocumented child—whether by refusing to enroll, by limiting access to the programs and benefits provided to other students, or by reporting a child to ICE—has violated the United States Constitution,” MALDEF said.

And the Leadership Conference on Civil and Human Rights said it would be against the law for schools to take the option DeVos presented:

WATCH: Today, Secretary @BetsyDeVosED said schools could decide whether to report undocumented students. That’s wrong - and illegal. #DearBetsy: Read the Constitution and your own department’s guidance. https://t.co/2uDoVPTlcv pic.twitter.com/DG1Zwm9gMm

— The Leadership Conference (@civilrightsorg) May 22, 2018

So was DeVos right? The key case here is Plyer v. Doe. In a 1982 ruling on that case, the U.S. Supreme Court ruled 5-4 that public schools can’t adopt policies that discourage certain groups of students, including undocumented immigrants, from enrolling. A 2014 fact sheet put out by the Education and Justice Departments states that schools “may not ask about your or your child’s citizenship or immigration status to establish residency within the district.” They also can’t require parents to show driver’s licenses or state-issued identification.

In addition, a “Dear Colleague” letter from both those departments in 2014 says schools “may not deny access to a basic public education to any child residing in the State, whether present in the United States legally or otherwise.”

(That 1982 ruling didn’t stop an Illinois district from asking students applying to enroll about their immigation status—this district agreed to stop the practice in 2006.)

After the hearing, Liz Hill, a spokeswoman for the Education Department, stated that DeVos’ position is that “schools must comply with Plyler and all other applicable law and regulation.” Hill also said there are “absolutely no plans” to rescind the Obama-era “Dear Colleague” letter or guidance on this issue.

Schools’ relationship with immigration enforcement can be tricky. Our colleague Corey Mitchell reviewed some of these issues for schools last year.

• Schools can limit their interactions with immigration enforcement, but federal immigration agents can access school grounds when high-level federal officials give approval; that’s according to a 2012 ICE memo. Immigration officials can also argue they need urgent access to a school under certain circumstances.
  
• “ICE is a federal immigration agency and they do have legal authority to enforce immigration law and there could be scenarios where ICE could access campus,” Jessica Hanson, a lawyer with the National Immigration Law Center, told Corey last year.
  
• Schools can claim “sanctuary” status and share information with families about their rights, although that status might overstate the legal protections schools can provide to undocumented immigrants.

Last year, Broward County schools adopted a policy stating that federal agents seeking information about students or access to them must produce a warrant or other court document that the district’s attorney must first review. Other districts have made similar moves to protect undocumented students.

And immigration officials—but not those who conduct enforcement—visited a New York City school in 2017 to verify information about a green card applicant through the school’s front office.

In a question-and-answer document from both departments also published in 2014, here’s a relevant section about district disclosure of student information:

Once in possession of personal information about a student, are there circumstances when a school district may disclose that information from a student’s education records without the consent of the student or a parent?
There are circumstances when a school district may disclose information from a student’s education records, but these are limited and unlikely to be applicable in the majority of situations school districts confront. The Family Educational Rights and Privacy Act of 1974 (FERPA) generally prohibits school districts that receive Federal funds from the Department of Education from disclosing information from a student’s education records that alone or in combination with other information can identify that student, without the prior written consent of a parent or the student (if that student is 18 years of age or older or attends a postsecondary institution). ... There are some limited exceptions in FERPA to the requirement that written consent must be obtained before disclosing personally identifiable information from students’ education records ... as well as narrow, enumerated circumstances under which Federal immigration laws require or permit a school district to provide specific information about a student to another Federal, state, or local government entity. One such circumstance is where the issuance of a non-immigrant visa to a student--and the maintenance of that student’s non-immigrant status--is conditioned on the student’s attendance at a specific school. Note that in that case, a school district would have preexisting information about the student that he or she would have presented to the school in order to obtain the underlying visa, and so the school would not have any reason to initiate a request for information about immigration status.

Immigration and other advocates are essentially arguing that if a public school were to report an undocumented student to a federal immigration authority, it would be tantamount to improperly depriving that student of his or her right to an education.

Time will tell if schools’ obligations and options with respect to undocumented students are tested and clarified—or altered—under the Trump administration.