The Future of Privacy Forum (FPF), hoping to help schools and edtech service providers respond to potential law enforcement requests for information about students’ immigration statuses, published a two-page guide Tuesday answering common questions about obligations related to student privacy.
Amelia Vance, the think tank’s policy counsel and author of the guide, told EdScoop that the motivation for releasing the paper now is the heightened concern among schools about the anti-immigration rhetoric in the United States, as well as the Trump administration’s decision earlier this month to rescind the Deferred Action for Childhood Arrivals (DACA) policy.
The guide lumps in edtech service providers with schools because their contracts effectively make them agents of the schools they serve.
Immigration and Customs Enforcement is not permitted to question, search, arrest or surveil people on school grounds, per a 2011 memo. However, that hasn’t stopped students and educators from worrying about the possibility.
“The question that was opened as we’ve seen immigration enforcement grow over the past few months is, ‘Are schools still considered a safe space?’” Vance said.
The FPF guide boils down to two main best practices when a school or service provider faces a student information request from law enforcement:
- Consult legal counsel to determine your obligations. Failing to comply with proper legal process creates risks for your organization. Disclosing more information than required may violate your students’ privacy rights.
- Carefully align the amount and types of data you collect about students to the programs and services you provide. Avoid collecting additional data not needed to serve students and avoid storing it for longer than you need.
Schools and their agents are prohibited from disclosing student records by the Family Educational Rights and Privacy Act (FERPA), except if given a court order. The same goes for service providers, who are subject to similar rules in the Electronic Communications Privacy Act (ECPA). Even if there is a court order, the school has to let the student or their parents know about the request before releasing the information.
“If law enforcement does come and ask for any student information, unless the warrant or court order says that they can’t tell the student, the school has to go out of their way to make sure that the parent or student are notified about that request,” Vance said.
Schools rarely keep records of whether students are undocumented. The 1982 Supreme Court case Pyler v. Doe dictates that states give undocumented children equal access to public school education.
“Schools are really pushed to not collect that type of information,” Vance said.
Thus, it’s not likely for schools to be asked for lists of undocumented students. Still, some fear they may be asked for information that leads to the discovery of undocumented students.
“You have these concerns about proxy data points being used, like ‘Are they a first-generation college student?’ [or] ‘Are they an English language learner?’” Vance said.