Protecting Students And Schools: Guidance On Federal Agent Presence

The Department of Homeland Security ("DHS") has historically maintained a "sensitive spaces" or "protected areas" policy which restricted the U.S. Immigration and Customs Enforcement ("ICE") agents from making arrests in certain areas, including (1) schools (including primary, secondary, colleges, universities, daycare, preschools, school bus stops), (2) places of worship (includes religious or civil ceremonies or observances, such as funerals and weddings) and (3) medical treatment and health care facilities (including hospitals, doctor's offices, and clinics). The recent rescission of this policy, combined with deputizing other federal agents including but not limited to the DEA, FBI, and U.S. Marshalls, and the spotting of federal agents at schools has created deep concern and fear amongst students, parents, teachers, schools, and the rest of our communities.

Schools are generally committed to protecting every child's right to access a free public K-12 education, regardless of immigration status, national origin, or race. Schools also prioritize the safety of their students, staff, and information. In an effort to address the questions and concerns of staff and families about the potential presence of government officials, including officers from ICE or other federal agencies, this guidance sets forth a response protocol and recommendations for educators.

What to Do If a Government Official Arrives at Your Building

The first action item for schools is to review and update their policies and procedures so that all visitors can align with the school's interests. Not all schools are the same, and the response measure may not be a "one-size-fits-all." If a government official arrives at a school requesting information or entry and they are not an individual who has an appointment or business with anyone at the school, recommended steps may include:

1. Develop a protocol on how to proceed.
   1. Do you allow or refuse entry?
2. If protocol is to allow entry or if a government official has already entered the building:
   1. Maintain your professionalism! Politely ask them to wait in your public waiting area or a conference room.
   2. Understand the definition of "public" and "private" areas of a business. A public area may include the school's front office, lobbies, waiting areas, and parking lots. A private area would be an interior area and those marked "private" with a sign.
   3. Do not consent to a search of the school building.
   4. Notify the Principal, Administration, Attorney, and any individuals identified as a "response team."
3. If protocol is to refuse entry into the building
   1. Be prepared for the Principal or Administrator trained to handle this situation to go outside of the school building to speak with the government official. Otherwise, it may only escalate the situation to ignore them. The goal here is de-escalation, and communication helps achieve this. Practically, this is hard, and it takes courage, but walk out calmly and say, "I just need to understand the situation." Be respectful during your interaction. Let them know that you have a legal obligation to protect the children, your staff, and information in the school. If the government official has a document, ask to take a picture of it (on your mobile phone if outside of the building) and then let them know that you need legal counsel to review it. Then, immediately send it to your legal counsel for review. Let them know that you will comply with any authority, but need to understand what the document is, and whether it is a federal or state search warrant. They can wait outside or come back later. Do not buckle to pressure.
   2. If the school has a secure perimeter policy, you may place the school on a secure perimeter or hold. However, that may escalate the situation. It may be best to interact with the government official and make copies of documents.
      
4. Information to be requested of the government official includes:
   1. Which agency are you with?
   2. What is your name and badge/ID number?
   3. Request a business card from the agent/official.
   4. What is the purpose of your visit?
   5. Do you have a search warrant?
      1. If yes, can you provide the school with a copy?
         1. Read the contents of the warrant.
         2. Judicial Warrants:
            1. A warrant signed by a judge or magistrate in a federal or state court is required for ICE to proceed beyond public areas and into the private areas of a facility, unless staff consents to the search.
            2. Comply to the extent of the warrant signed by a judge to avoid potential allegations of obstruction of justice.
            3. Double check that the warrant is signed, has a correct address for the premises or specifically pertains to you, and executed within the time-period specified on the warrant.
         3. Administrative Warrants: *Do not have the same effect as a judicial warrant
            1. A warrant signed by an employee of ICE or DHS.
            2. Administrative warrants are merely requests to which employers generally do not have to comply.
            3. Watch out for any proposed legislation that makes compliance with an administrative warrant mandatory.
         4. Notices of Inspection (NOIs)
            1. ICE may not be visiting your schools to apprehend individuals. They could also be there for an I-9 Audit. If this is the case, ICE will present a NOI requesting Form I-9s and related documentation for all employees. This is why it is important to read any notices provided by government officials.
            2. ICE may allow 3 days to respond but request an extension as it takes time to gather information.
            3. If records are seized, ICE is obligated to provide an inventory.
      2. If not, you may ask the government official to leave and contact legal counsel with any questions. You may also request the government official contact your legal counsel directly.
         
5. Obtain documentation from the government official:
   1. Make copies or take clear photos of documents that may include:
      1. Identification.
      2. Business card.
      3. Any warrants or subpoenas.
6. Consequences for refusing entry or refusal to communicate:
   1. If presented with a judicial warrant, it is an obstruction of justice to refuse entry.
   2. If the government official does not have a judicial warrant, you are not obligated to allow entry inside the school building. However, it may escalate the situation if you refuse to communicate or ignore them. Calm and respectful communication is best, whether inside the school building in a public space, or outside the school building.
   3. If a government official insists upon meeting in the front office (arguably a public space), you may refuse. You can speak with them outside if you prefer. While it may not make a legal difference, consider a review and update your policy on who may enter the school building. For example, will "visitors" include parents, siblings, or anyone on an emergency contact card only? Will those with official business include USPS/FedEx/DHL/UPS deliveries or other vendors? Will this include first responders and medical personnel? Again, it may not make a legal difference, but it could help boast the Principal or Administrator's confidence handling the communication in validating their reasons for refusing entry inside of the school building.
7. Know the difference between a Search Warrant, Arrest Warrant and Subpoena.
   1. Search warrants are different from all other processes. This is the only thing (asides from consent) that allows a government official access to the school building and/or records. If a government official has a search warrant, they are coming in. It also means that a judge has made a probable cause determination, which normally means evidence of a crime is occurring in the school. This is a highly unlikely scenario, and why the government officials may try other tactics to gain access inside the school with another process. We cannot stress enough the importance of reading the document!
      1. What to look for on a search warrant? There will be language in the document to search and seize. There will also be language to search a specific area, or to seize specific evidence. There will be an Attachment A (place(s) to be searched) and Attachment B (property to be searched) that they established probable cause.
   2. Arrest warrants. If the document presented is an arrest warrant, a careful and calm reading should reveal that on the face of the document. If presented with an arrest warrant for a specific person, they can wait outside. You do not have to let them into the school building.
   3. Subpoenas. If presented with a subpoena, you have time to respond. A subpoena may not have the authority to inspect. You need to inform the government official that your attorney will need to review it. They can wait outside or come back later. There may be negotiations on the ground on how to respond. It requires courage and confidence to interact with government officials and properly respond.
   4. The National Immigration Law Center prepared a detailed overview, including sample warrants for review, which was helpful for internal training: Warrants and Subpoenas: What to Look Out for and How to Respond.
      
8. Requests to speak with students.
   1. Inform the government official that you have a process if there is a request to speak to students or request student records. Your process may require that all school staff first notify and consult with the school's legal counsel.
   2. If the government official has access granted to a private area through a warrant or consent, they have the authority to arrest people based on: (1) an administrative warrant for that person or (2) they have probable cause to believe that the person is removable from the United States (such as individuals with unlawful status or engaged in criminal activity). A government official may also establish probable cause by questioning an individual who discloses their immigration status or presents documentation that they are a foreign national. This is why it is important to remain silent! Finally, do not run away from a government official! This can also establish probable cause.
   3. If ICE approaches a student and they are on school grounds, the school staff are considered "in loco parentis," or acting in place of a parent. If the government official does not have a search warrant, escort the student into the school building. If they do have a search warrant, then escort both the student and government official into the school building, and review the warrant prior to releasing the student. If they have an arrest warrant, they have the authority to apprehend the student.
      
9. Call the School's Legal Counsel and Wait for Further Guidance.
   1. Do not physically impede, interfere with, or obstruct a government official in performing their duties. If the government official does not comply with your directions, notify legal counsel immediately.

Important Steps and Recommendations

1. Update policies and procedures.
   1. Be prepared with a plan! Contact your education legal team for assistance with drafting and updating resolutions, policies, and procedures.
      
2. Develop a Communications Policy/Strategy.
   1. Internal Communication: Create a chat group for staff, teachers, and/or parents with a specific purpose.
   2. External Communication: You may want to create a separate chat group with other schools and interested parties to share information. It should be clear to all those who join the chat group the purpose of the chat group and the type of information shared. You want to keep a clear line of communication.
      
3. Designate Staff for Communications and Staff Training.
   1. Instruct your receptionist or whoever is the first point of contact with the public to only communicate with a government official; our policy is to contact so and so, or our policy is to contact our legal counsel, then immediately follow up with the phone call. They should not provide any information or provide documentation to government officials.
   2. Designate at least two people to communicate (a primary and secondary contact). All others should not to speak. It is not helpful to have multiple people speaking.
   3. Train designated individuals on how to review warrants, subpoenas, and what information is pertinent.
   4. Designate staff members to document all interactions with government officials. This could be writing notes or recording the interaction. Install cameras in the public waiting space, if possible.
   5. Train all other staff on the Family Educational Rights and Privacy Act (FERPA) and internal procedures and ensure they understand the differences between public and private spaces.
      
4. Ask Families to Update Emergency Contacts.
   1. Ensure all families review and update their emergency contact information through your school's main office or other databases used by the school. Each student should have at least two emergency contacts. These individuals do not need to be family members; they can be any trusted adult known by the family. You can also ask that families identify those authorized to pick up their students (including older siblings) from school if a parent or guardian cannot.
   2. Encourage families to opt out of the school's directory by completing the attached Opt-Out Form. Although FERPA requires schools to limit who has access to student documents, directory information is an exception under FERPA. Government agencies may seek directory information without a warrant or other legal justification.
      
5. Know Your Rights.
   1. All people in the United States, regardless of immigration status, have certain rights and protections under the U.S. Constitution. It may be helpful for staff and families to post Know Your Rights handouts at employer facilities. The handouts may be available online, such as an employer's intranet, an employer's electronic billboard, or physical copies made available at the worksite. You may consider posting the handouts in multiple languages at school via electronic communication and sharing the handouts widely with your network. The American Immigration Lawyers Association (AILA) offers Know Your Rights handouts for several scenarios including ICE worksite raids (for employers), ICE home visits, and ICE public stops. These handouts are available in multiple languages.
      
6. School Attendance/Online Classes.
   1. If there is a significant decline in physical class attendance, consider allowing a virtual/online option. Contact your legal team to strategize and discuss if this is a viable option.

This situation is evolving on a day-to-day basis and will continue to do so, with many districts passing resolutions to remain a SAFE SPACE. Conversely, there are currently proposals for administrative warrant compliance to become mandatory in certain states. Stay up-to-date on legislative changes! Stay in touch with your legal team. Finally, our dedicated education and immigration law teams at Dickinson Wright are prepared to support your legal needs.