While the recent Executive Orders by President Trump on immigration have garnered significant controversy, they put school entities in a particularly difficult position. Schools, which attempt to work collaboratively with students and their parents in educating students, strive to make themselves a safe and inclusive environment.
In addition, schools must now also try balancing efforts to put families, who are understandably concerned about how this change in the law may affect them, at ease, while also make efforts to avoid stepping into this political mine field.
Background
On January 27, 2017, President Trump issued an immigration-related Executive Order that would, for a period of 90 days, prohibit entry into the United States by nationals from certain countries. It is important to note that the Order itself does not specify the countries in question, but rather makes references to federal law and that law outlines a list of countries of concern that include Syria, Iran and other nations designated by the Department of Homeland Security and the Department of State.
This last portion is important; as the countries on the list and those affected by this Order could change over time should countries be added or subtracted from the list by Homeland Security or State.
The Executive Order itself speaks only to the process of allowing individuals into the United States and does not contain any provisions related to individuals already in the United States. There is nothing in the Order directly applicable to school entities.
In addition, on January 25, 2017, President Trump issued an Executive Order, applicable to all states and political subdivisions, which states that such states or political subdivisions that act as “sanctuary” for immigrants who are here in violation of the law and do so in “willful” violation of law are no longer entitled to receive federal funds. The Order does not directly reference school entities, but could be applied to them in terms of federal funding.
Both of these Orders have been challenged in Court and the January 27, 2017 Order has been stayed by the Court for now, but that could change in the future.
Recommendations
First, school entities should avoid the appearance of taking an official position on this hot political issue. Districts do not want to run the risk of getting stuck in the middle of what is clearly a very controversial issue and risk harming relationships with families in either opinion camp. In addition, the District should ensure that its actions are not attempting or appearing to act as a sanctuary for those in violation of the law or it runs the risk of losing federal funds.
Second, there are some steps which we believe school entities can reasonably take to help put families at ease and recommendations that can be made to families without advising them to act in a manner contrary to law, to the extent a district may wish to help. Districts should advise that people stay informed of what the law says, not what people claims it says.
In addition, there is nothing that currently directs any school entity to take any action against documented or undocumented students. Advising families who are understandably fearful of what is happening may help to put them at ease and at the very least limit some insecurities they have about sending their children to school. In addition, school entities may safely advise families of a number of available resources that may be able to provide guidance on their rights under the law, so long as it is done in a non-discriminatory manner.
Third, this is a good time to review the law regarding immigrant students. Under Pennsylvania law, school entities may not inquire of students as to their immigration status. In addition, under Pennsylvania law a student’s right to admission to a public school may not be conditioned on the student’s immigration status and federal law provides some protections as well. It is also important to note that some refugees and immigrants may be entitled to the protections afforded to students under the McKiney-Vinto Act, depending upon their particular situation.
Whether there will be any impact on students or their families from the affected countries remains diffcult to predict. There would seem to be no effect on families from affected countries already here in the United States There is no legal reason to believe that the President’s Executive Order should have any effect on exchange students already present in the United States or students in public schools here under legal visas.
Bottom Line
While school entities should be cautious about wading into any controversial issue, there are steps schools can take to assist concerned families and make schools a safe and inclusive environment for all students. If you should have any questions, please contact your legal counsel or an attorney from KingSpry’s Education Law Practice Group.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. They are meant to be informational and do not constitute legal advice. John E. Freund, III, is our editor.
