By Mia Little and Amelia Vance
In the current political climate, schools have expressed a great deal of concern about government agencies – including law enforcement – requesting student data in order to identify and deport undocumented students. With the repeal of the Deferred Action for Childhood Arrivals (DACA) program last month, it is important that schools – and the companies that serve them – understand their legal options and when they may be required to disclose student personal information to law enforcement.
Today, the Future of Privacy Forum (FPF) released “Law Enforcement Access to Student Records: A Guide for School Administrators & Ed Tech Service Providers,” written by Amelia Vance and Sarah Williamson. This guide helps to answer some of the basic questions that we have heard from key stakeholders about law enforcement access to data over the past nine months.
Schools should only be collecting the information they need to help students, and, if the disclosure of that information could cause a greater harm than benefit to students, schools should consider deleting that information.
The publication emphasizes issues that schools and third-party service providers must consider before disclosing student data in response to law enforcement requests. First, schools and service providers should proactively review the information they collect to align the amount and types of data to the programs and services they provide. Schools should only collect the information they need to help students, and, if the disclosure of that information could cause a greater harm than benefit to students, schools should consider deleting that information if hey are not legally obligated to retain it. Second, schools and service providers should consult legal counsel to determine their legal obligations to students and law enforcement when presented with a request for student data. Federal civil rights laws and the Supreme Court decision Plyler v. Doe require states to provide equal access to public education for undocumented children, and schools cannot use any information collected about race, ethnicity, national origin, or English proficiency to discriminate against students.
Under the Family Educational Rights and Privacy Act (FERPA), schools and service providers may be required to disclose certain student data if presented with a valid and narrowly tailored warrant, court order, or subpoena. However, schools cannot disclose information they do not have. For example, if your school does not need to collect immigration status data, then don’t collect it. If your school must collect sensitive data to better serve students, then please note that a student’s immigration status is likely considered part of their education record and is therefore protected under FERPA.
With that said, if your school does collect sensitive data that could be used to determine a student’s immigration status, you should know that schools and service providers have legal obligations to both students and law enforcement. Under FERPA, schools that receive funding from the U.S. Department of Education are obligated to protect student privacy. FERPA offers privacy protection for student education records, but some exceptions may apply to disclosures to law enforcement. However, it is very important for schools to know that, if they are compelled to turned over student records to law enforcement, FERPA typically requires that schools notify the student or parent prior to disclosure unless a court has ruled otherwise.
Service Providers should always insist on appropriate legal process before disclosing FERPA protected data to law enforcement. Under FERPA, service providers are only allowed to (re)disclose student data on behalf of the school; and if service providers engage in any unauthorized disclosure, they may also risk penalties under the Electronic Communications Privacy Act (ECPA), which is a federal law designed to prevent unauthorized access to private electronic communications. In any case, it’s important for schools to verify that their contracts with service providers include a requirement that they be notified about a record request from law enforcement.
Overwhelmingly, every expert FPF talked to recommended that schools and service providers should always consult legal counsel prior to the disclosure of student records to law enforcement without consent. You can read our new publication here for more information, and we list additional helpful resources below. If this all sounds overwhelming, then it’s important to remind you of the number one best practice: strive to minimize legal risks on the back end by limiting the amount and types of data you collect about students on the front end.
Mia Little is a 3L at the American University Washington College of Law and an intern at FPF. Amelia Vance is the Education Policy Counsel for FPF.
American Immigration Council, “Public Education for Immigrant Students: Understanding Plyler v. Doe,” Oct. 24, 2016.
Benjamin Herold, “Trump’s Anti-Immigration Rhetoric Fuels Data Concerns,” EdWeek, Jan. 13, 2017.
Leah Plunkett, “How the New Immigration Agenda Violates the Promise of Plyler v. Doe & What School Decision-Makers Can Do to Protect Their Students & the Constitution,” Berkman-Klein Center, March 6, 2017.
Program to collect information relating to nonimmigrant foreign students and other exchange program participants, 8 U.S. Code § 1372.
Retention and Reporting of Information for F, J, and M Nonimmigrants; Student and Exchange Visitor Information System (SEVIS), 67 FR 76255.
U.S. Department of Education, K-12 School Officials, last accessed Sept. 25, 2017.
U.S. Department of Education, Resource Guide: Supporting Undocumented Youth, Oct. 20, 2015.
U.S. Immigration and Customs Enforcement, Memorandum on Enforcement Actions in Sensitive Locations, Oct. 24, 2011.
Related News Articles
Betsy Woodruff, “The Trump Administration Now Has Tons Of DACA Data And Is Poised To Weaponize It,” The Daily Beast, Sept. 5, 2017.
Mark Keierleber, “Trump order could give immigration agents a foothold in US schools,” The 74 and The Guardian, Aug. 22, 2017.
Mark Keierleber, “As Immigrant Students Worry About a New School Year, Districts & Educators Unveil Plans to Protect Their Safety (and Privacy),” The 74 and The Guardian, Aug. 21, 2017.
Sean Teehan, “Mass. Schools Emphasize Student Privacy When Dealing With Immigration Officials,” New England Public Radio, Aug. 14, 2017.
Massachusetts Attorney General Maura Healey, “AG Healey Issues Guidance to Health Care Providers and Public Schools on Immigration Enforcement Requests,” May 18, 2017.
Jill Tucker, “California pressed to stop collecting students’ citizenship data,” SFGate, March 27, 2017.
Elizabeth A. Harris, “Educators Prepare for Immigration Agents at the Schoolhouse,” The New York Times, March 7, 2017.
Corey Mitchell, “What can schools do to protect undocumented students, and other FAQs,” March 6, 2017.
Monica Disare, “As anxiety grows after Trump’s executive orders, what protections do immigrant students have in NYC schools?” Chalkbeat, Feb. 6. 2017.