As the second Trump Administration takes office, we have been treated with an instant flood of Executive Orders addressing, among other things, the administration’s immigration enforcement initiatives. Primarily, these enforcement initiatives target border security and border crossings, undocumented individuals with criminal convictions or with prior removal orders.
One measure that has captured the attention of school administrators, is the executive order that rescinds volumes of prior agency guidance documents, including the U.S. Immigration and Customs Enforcement or ICE. That prior guidance established certain locations as inappropriate locations for ICE enforcement activities. Specifically, those including hospitals, places of worship, and schools.
The following is a discussion of the impact and recommendations related to the change in ICE enforcement guidelines. If you are an employer that employs foreign nationals sponsored through the H-1B nonimmigrant program, please note that different requirements exist relative to federal officials’ right to verify compliance. Please review our worksite verification legal alert.
Rescission of “Protected Areas” Designation
Under previous administrations, including the first Trump administration, ICE was expressly prohibited from arresting individuals on immigration violations in certain environments deemed to be restricted or protected. That policy was strengthened under the Biden Administration’s October 27, 2021 “Guidelines for Enforcement Actions in or Near Protected Areas”. That guidance went well beyond the historical limitations to include not only schools, hospitals, and places of worship, but also any place where children gather, social services establishments, food banks, emergency relief centers, parades, demonstrations, or rallies, and more locations with a humanitarian component to them.
The Trump Administration rescinded the ICE policy guidance. This means that ICE is not restricted as to locations where it can engage in immigration enforcement initiatives.
What Does this Mean for Schools
There are important items to understand with respect to this particular action.
- It does not grant ICE access to a school, it merely removes the prohibition on locating individuals in schools.
- It does not change school administrations authority to restrict access to its facilities during school or school related events. Schools have – or if not, should consider implementing – policies that restrict access to school facilities for the protection of the educational environment.
- ICE is not authorized to enter schools without either (a) permission from school authorities; or (b) a warrant that provides specific access to an individual and specifies the school as the locale of enforcement, and is signed by a judge.
What to Do to Be Prepared
It is as of yet uncertain exactly how or if this change will impact ICE activities. In preparation for this, the following recommendations are provided:
- Inform all staff with responsibility for controlling building access or checking in visitors that ICE agents are not automatically entitled to entry.
- In the event a school is contacted by way of personal appearance of an ICE agent, refer them to the District’s policy on law enforcement access to the schools.
- Administrative personnel should directly interact with the ICE agent. Interactions should be respectful and should be addressed consistent with the policy, i.e., in the spirit of determining whether access to the school or to a student or staff member within the school is appropriate (i.e., H-1B site visits).
- If the ICE agent presents what is purported to be a warrant, you may request to review the warrant. You may opt to contact legal counsel at that point as well.
- An ICE arrest or removal warrant is NOT a warrant to authorize access to the school facilities. These are not warrants signed by a judge, they merely authorize the arrest and/or service of documents to an individual suspected of being subject to removal.
- An ICE warrant may be executed on school grounds only with the consent of a school official. You are not obligated to give consent. Not doing so is not a matter of shielding the individual, but rather, as is always the case, preventing the school from becoming a law enforcement zone and thus disrupting the educational environment. ICE agents, like other law enforcement agents, have the capability of enforcing warrants elsewhere.
- If the agent presents a warrant, signed by a Judge or U.S. Magistrate (not the ICE Agent) and the warrant specifies access to the school to apprehend named individuals, then you must comply with the agents’ requests. You may still request that the agent allow school officials to bring the individual to the office, rather than the agents moving through the school. But, do not prevent execution of a judicial warrant that specifies the school as the location of implementation.
Communication to Parents and Community
In some communities, communication with parents, students, and the community in general may be appropriate. The purpose of such a communication is to reassure all families – not just those who are not U.S. Citizens and are concerned personally about enforcement – by all parents who do not wish to see their kids school become a law enforcement zone. Schools exist to educated students, not to serve as easy access to persons of interest for law enforcement.
These communications should refer persons to the school district’s policy on law enforcement activity at the schools, and note that the first priority is to preserving the educational environment of the school. It should also note that the school must always comply with lawfully issued and judicially executed warrants that authorizes access to schools, but in those rare instances where an ICE agent may present such a warrant (as opposed to a warrant to arrest an individual for removal proceedings) all effort will still be made to preserve the educational environment.
Finally, in some cases, school officials may choose to include recommendations to families who may have personal concern about ICE activities, to be sure to provide the school with alternative contacts in the event a student’s parents are apprehended in an enforcement initiative outside the school (i.e., workplace enforcement). This will assist the school in assuring that children are properly cared for in such an event.
Conclusion
While there is much reasonable concern about protecting the sanctity of schools from aggressive and highly disruptive law enforcement activities, it remains the case that school officials are not obligated to open up their facilities to these initiatives. Likewise, although the U.S. Department of Justice has threatened to pursue government officials who obstruct immigration officials’ efforts, to do so must be premised on some obligation to on the part of the local official that has been violated. According to acting Attorney General Emil Bove, “Federal law prohibits state and local actors from resisting, obstructing, and otherwise failing to comply with lawful immigration-related commands or requests”. The key here is “lawful” commands or requests. There is nothing that legally obligates school officials to open up your schools for ICE access, unless a judicially issued warrant compels you to do so.
We will continue to monitor and provide updates on initiatives that impact schools as the administration continues to develop its tactics and initiatives. We also expect that executive orders and various agency proclamations will continue to be handed down.
