PROTECT AND DEFEND DREAMERS

What impact does ending DACA have on K-12 students?

On September 5, 2017, the Trump administration ended the Deferred Action for Childhood Arrivals (DACA) policy. For the past five years DACA, a lawful, just, and successful policy, has transformed the lives of hundreds of thousands of undocumented youth. 

While all eyes are on Congress to see if they can find a bipartisan solution that helps regularize the status of the youth impacted by the president’s decision, questions still abound. In particular there are concerns about the impact of ending DACA on K-12 students. 

We explore some of those questions below. Click on the question to skip ahead to the answer:

DREAMERS

1. What does the DACA population look like today?

In the media, it is often stated that DACA recipients are American in all ways except on paper. As it turns out there is a lot of truth to that statement. 

Consider that it has been over five years since the implementation of DACA, and that, to be eligible to the relief under the policy, applicants must have been present in the United States since June 15, 2007. That means, at a minimum, a DACA recipient has lived in the country at least ten years. 

But many have lived in the U.S. for much longer. According to a Brooking Institution study, two-thirds of the nearly 800,000 DACA recipients came to the U.S. before they were ten years old. A third of them arrived when they were six years old or younger.  Today, the average DACA recipient has lived in the U.S. for an average of 20 years and is 24 years old.

Not surprising, a lot happens in the life of an individual over such an extended period of time. Families and communities are formed. According to a recent survey of DACA recipients--the largest one to date--almost 75% of DACA recipients have a U.S. citizen spouse, child, or sibling. About 26% of survey respondents have a U.S. born citizen child. 

As the community ages, these longtime residents of the country, who by the very eligibility requirements for DACA including not committing any serious crimes, are living peacefully among our communities and raising families.

DACA recipients are also pursuing higher education, entering the workforce, and becoming active members of their communities. Consider the story of Gilberto Sosa, a triple-major supply-chain management, economics and management college junior in Arizona, who co-owns Sosa Furnishing. His thriving family business provides cabinetry and wood finishing for clients in Scottsdale and the outskirts of Phoenix, and employs members of the community. 

According to the survey, 65% of DACA recipients are currently in school, the majority of whom, like Gilberto, are pursuing undergraduate degrees. And a considerable number, 17%, are now pursuing advanced degrees. According to the Migration Policy Institute, of those not pursuing post-secondary education, 76%, are in the workforce, and another 6% of those surveyed have started a business.

DREAMERs

2. How many DACA recipients, many of whom are students, did not renew in time to meet the arbitrary October 5, 2017 deadline?

In the month that followed the Trump Administration’s decision to end DACA, UnidosUS and other organizations were keenly focused on ensuring that as many people that could renew, did so. Based on the most recent government data available, about 86%, or 133,000, of those eligible renewed. 

On one hand, it is good that so many re-applied, but, on the other, it means that about 14%, or 21,000, did not. The individuals that did not renew in time, including many students, will lose their DACA protections by March 6, 2018, absent a legislative fix by Congress.  

Yet the sad reality is, if Congress does not act, it is estimated that on every new business day, beginning on March 6, 1,400 DACA recipients from the overall DACA population will lose their protections, including many students who are pursuing higher education and/or working legally.

DREAMERS

3. And what about those students who weren’t eligible to apply for DACA because they were too young?

When DACA was announced in June 2012, one of the requirements was that individuals must have been 15 years of age or older to apply. At that time, it was estimated that approximately 500,000 youth were not yet eligible to apply because they were too young, but that over time they would “age-in” to DACA eligibility. In the last five years we’ve seen that happen, as a significant number of those youth have turned 15.

Still, today it is estimated that about 125,000 individuals were unable to “age in” by the time President Trump rescinded the policy. Unfortunately, absent action by Congress, these 125,000 students are now unable to apply for DACA under the terms of the September 5, 2017 rescission announcement.

4. Are individuals in K-12 who had DACA, but are now at risk of losing their status, also at risk of not being able to attend school?

The DACA rescission does not in any way undermine or overturn the clear legal rights of undocumented students to attend K-12 public schools free of restriction and harassment. In the Supreme Court’s 1982 landmark decision, Plyler v. Doe, the court held that the undocumented status of a student or his or her parent(s) or guardian(s) does not affect a student’s right to a public K-12 education. 

This decision was based on the U.S. Constitution’s Equal Protection Clause, guaranteeing all persons, regardless of immigration status, equal protection under the law. The Court elaborated on the critical nature of every child’s right to receive a K-12 public education by stating that “by denying these [undocumented] children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.” 

All students, regardless of status, continue to have the unequivocal right to a K-12 public education.

DREAMERS

5. Are there federal laws, including any specific provisions of the Every Student Succeeds Act (ESSA), that protect these students?

While ESSA does not explicitly address protections for undocumented students, it does allow for schools to measure school climate to determine if all children have access to schools that are safe and welcoming environments. Additionally, there are other federal laws that protect the rights of undocumented students. 

Title VI of the Civil Rights Act of 1964 prohibits discrimination by programs and activities receiving federal assistance, on the basis of race, color, or national origin. In this case, Title VI regulations would prohibit a state or district from taking actions based on race, color or nation origin, absent a non-discriminatory justification, that impede a student’s right to equal access to public education.

The McKinney-Vento Act also provides education rights to students experiencing homelessness, including unaccompanied youth, regardless of immigration status.

There are also emerging state laws that protect the rights of students in K-12 public education, regardless of immigration status. California’s Governor recently signed AB-699 Educational equity: immigration and citizenship status into law on October 5, 2017. This law increases protections for undocumented students by deterring school officials from permitting U.S. Immigration and Customs Enforcement (ICE) officials on school campuses without a valid judicial warrant and prohibits employees from inquiring about the immigration status of students and their families.

6. What limits, if any, are there on what immigration authorities can do when it comes to enforcement on school grounds?

There are two issues in this question. The first is whether there are legal limits to what immigration authorities may request of schools, and the second is whether there are any limits based on policies that currently direct how immigration authorities may conduct their enforcement in or around schools.

While UnidosUS is unable to offer legal advice, as noted above, when it comes to information sharing in the K-12 context one of America’s strongest privacy laws, the Family Educational Rights and Privacy Act (FERPA), generally prohibits the sharing of student information including details about their citizenship status. 

As it pertains to conducting arrests, like other local law enforcement authorities, immigration officials are bound to adhere to the Fourth Amendment and court decisions that guard against unreasonable searches and seizures.

As a matter of policy, the immigration authorities note that they rarely conduct enforcement activities at schools. A 2011 ICE Sensitive Locations policy, that remains in effect today, classifies schools as sensitive locations and directs that immigration enforcement actions may occur at sensitive locations only in limited circumstances, but should generally be avoided.  In the event enforcement is to be conducted at a sensitive location like a school, senior supervisory approval must first be obtained.

DREAMERS

7. Are there things that schools can and should be doing to help undocumented students during these uncertain times?

Schools are uniquely positioned to take the lead in building community trust while creating a safe space for children and families. Below are some steps schools can take today to help build a greater sense of community: 

  • First, school leaders should publicly communicate a set of principles, which make clear what procedures and policies it will undertake in the unlikely event of an encounter with immigration authorities. The National Education Association has issued sample resolutions which provide a good starting point for crafting these principles. 
  • Second, schools should provide training to reaffirm and re-educate school leaders, teachers, school resource officers and other school officials on the education rights of children, regardless of immigration status. These trainings should emphasize a student’s FERPA rights and the rights asserted by Plyler v. Doe, Title VI of the Civil Rights Act of 1964 and any state laws that may be relevant.
  • Third, schools should continue to serve as a resource center with information about legal rights and obligations. There are copious amounts of resources available about knowing your rights.
  • Finally, schools should periodically host free legal screening sessions for parents and children, partnering with qualified community legal providers, to determine if there are forms of relief available to individuals under our immigration laws.

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