Education Week - January 18, 2017 - 9

consulted by Education Week, including Muzaffar Chishti, the director of the New York City office of the
Migration Policy Institute.
If, for example, a more aggressive
U.S. Immigration and Customs Enforcement agency were seeking to
locate a student's family member
whom ICE had already determined
to be in the country illegally and
guilty of a crime, information held by
schools could prove valuable. And if
federal authorities decided to go after
undocumented immigrants with ties
to criminal gangs, youths themselves
could also become the subjects of targeted requests for information.
For a district hoping to resist
sharing such data, FERPA could
prove an inadequate legal shield,
said Negrón, of the National School
Boards Association. A provision in
the law allows schools to share personally identifiable student information without parental consent to
comply with a judicial order or lawfully issued subpoena.
It also remains uncertain whether
existing laws would prevent a
district-or even a lone employee-
from proactively sharing some information that might help immigration authorities pursue enforcement
actions.
Under FERPA, for example, schools
may share a student's directory information, which can include name,
place of birth, address, and phone
number, so long as they previously
notified the student's parent or guardian about the possibility of doing so.
And districts, schools, or individual
employees could also choose to proactively share with authorities nonpersonally identifiable information-
such as information about rapid
growth in students who are foreignborn or who don't speak English.
That information could be used to
support immigration enforcement actions in the surrounding community,
such as raids of local employers.

Legal Strategy
That's a strategy advocated by
FAIR, despite its general statement
that schools should not be the focus
of immigration-enforcement actions.
"What [school districts] should be
doing is letting the federal government know if they've got a growing
number of students who appear to
have all the characteristics of being
in the country illegally," said Mehlman, the group's spokesman.
The general idea, Mehlman said,
is to deter undocumented immigrants from staying in the United
States by making it as difficult
as possible for them to access jobs
and public benefits. That was the
strategy behind a wave of FAIRbacked laws passed earlier this decade in states such as Alabama and
Arizona. In addition to making it a
criminal offense for undocumented
immigrants to register a vehicle or
rent an apartment, the measures
required school districts to ask new
students to show proof of citizenship
or lawful immigration status. Alabama's law also required districts to
report that information to the state
education department.
The laws were crafted with the
help of Kansas Secretary of State Kris
Kobach, who also works with FAIR's
legal affiliate and is an adviser to the

Trump transition team. After legal
challenges from advocacy groups and
the Obama-era Department of Justice,
the laws were found to be unconstitutional. Kobach and Lou Barletta, a
Republican Pennsylvania congressman who is also advising the Trump
transition team on issues related to
immigration, did not respond to multiple requests for comment.
But immigration hardliners still
support the general approach, leading some educators and immigration
advocates to brace for a new wave of
local and state ordinances and bills.
If the U.S. Department of Justice is
helmed by Trump attorney-general
nominee Jeff Sessions, a GOP Ala-

jr size

bama senator who has ties to FAIR,
the federal government could support,
rather than oppose, such measures.

Wait-and-See Approach
The shifting winds are already
causing anxiety among undocumented immigrants and worry inside some school districts.
One example of the difficult decisions education officials now face:
A number of privacy advocates
suggest that districts prioritize minimizing the student data they collect
and store. That could include deleting sensitive information related
to students' immigration status, so

that it cannot be misused.
"You can't leak what you don't
have," said Fitzgerald of Common
Sense Media.
But such a strategy could limit districts' ability to access federal funding. It could also hamper their ability
to provide targeted support to immigrant students, and to track their
educational progress over time.
So while immigration opponents
consider their strategy, and while
some districts pledge to resist any
changes they deem threatening to
undocumented students and families, many education officials are
taking a wait-and-see approach.
The threat of a protracted legal

battle makes it unlikely that any
major policy shifts will happen overnight. But the power shift underway
in Washington is a reminder that
there are no guarantees when it
comes to the student data collected
by schools, districts, and states.
"The tragedy here would be if
fear wins the day, and families stop
sharing essential information and
we're not able to meet the needs of
students," said Zimmer, the Los Angeles school board chairman.
ONLINE EXTRA: Education companies wrestle
with concerns about protecting the privacy of
student data under a Trump administration.
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Education Week - January 18, 2017

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