Protecting the rights of immigrant students and their families: María Blanco

John Rogers: I want to begin by highlighting a right that’s shared by all young people—the right to attend public school. Can you describe what protections the US Supreme Court offered in Plyler v Doe for undocumented students?

María Blanco: The US Supreme Court, in a case that came out of Texas, heard arguments over a law stating that persons that were unlawfully in the United States could not attend public schools, and that the public’s dollars could not be used on people who were here without legal status. The Supreme Court ruled in 1982 that under the US Constitution, K-12 public schools have to admit undocumented students.

The court majority reasoned that these young people didn’t do anything wrong themselves. They were brought here by their parents, so why should they be punished once they were here for something that their parents did? It’s not necessarily the thinking we would use today to extend the rights of individuals to public schools, but that was the court’s logic.

In the years since the Plyler decision, however, the fact that there is a constitutional right for undocumented students to attend public schools hasn’t meant that they or their families have had a full set of constitutional rights.

That’s correct.

This vulnerability has clearly been heightened since the election of Donald Trump, who said during the campaign that he was interested in deporting anyone without documentation. Since being elected, he’s indicated that he wants to immediately deport two to three million people. Does President-elect Trump have the authority to take such action once he’s in office?

Yes. He does. Immigration law is federal law, and the basic concept of the law is very much in favor of a nation-state having the right to control its borders. The federal government is given a lot of room to enforce immigration laws. Deportations are easier to move forward than other cases that might go to court. The protections you get in immigration court are very different and more limited than you would otherwise get in a criminal proceeding. If you put people in deportation proceedings, it’s not even considered a criminal case where defendants have the right to an attorney—it’s viewed as a potential violation of civil law. This means that accessing an attorney is at your own cost. The law does say that anybody within the borders of the United States is covered by the Constitution, but due process rights are lower for undocumented people.

A president can play with the enforcement priorities of the U.S. Immigration and Customs Enforcement office (or ICE)—deciding who they are going to go after first and spend resources on, things like that. Their number one priority right now are convicted violent felons, and way down the list are people who are here, and who have been here a long time and haven’t violated any kind of law. But these priorities are all a matter of whoever is in charge of Department of Homeland Security. Whoever is president can wake up tomorrow and say, “I don’t think those should be our enforcement priorities. I want our enforcement priorities to be everybody we can get our hands on.”

Sticking with due process rights for a moment—if ICE officials contact an undocumented adult or minor, what rights do they have?

They basically have Fourth Amendment rights protecting against unlawful search and seizure, which is to say that government agents can’t arrest somebody without a warrant, and the warrant has to be based on reasonable suspicion that the person committed a crime. In this case the crime would be being here without legal status. There is case history that says that law enforcement shouldn’t engage in racial profiling, that you can’t just look at somebody and say, “Oh, there’s reasonable suspicion that this person is here unlawfully.” The same thing applies to going into a house—ICE cannot just knock on somebody’s door and walk in. They’re a law enforcement agency, so if they come to your house, you have the right to not let them in. You have the right to say, “You can’t come in, and you can’t search, without a warrant.” If you’re stopped on the street, your only constitutional obligation is to give them your name; you don’t even have to show them ID. The courts have decided that. So, when dealing with ICE, everybody basically has the same rights they would have in regard to any other law enforcement agency.

The problem is, you can get in trouble pretty fast if they ask you where were you born. If you say you were born in Ecuador, you’ve given them reasonable grounds to believe that you are a foreigner. Lawyers who train people in Know Your Rights always suggest not answering the question as to where you’re from—you just have to say your name, that’s it. Once you say a few little things, you might get to the point where they can arrest you for violating immigration law.

It’s very important that people know that in terms of random searches or arrests, everybody has the same rights, and this also applies when dealing with ICE. The problem is, ICE abuses these rights all the time, and people don’t know their rights or get very frightened, and then it goes wrong very quickly.

As you’ve alluded to, some civil rights organizations suggest that individuals carry a card that declares what their rights are, and that they use it to communicate to authorities. Do you think that’s a good idea?

It’s a good idea, and there is such a card. We call it the “red card,” and it’s issued by a group called the Immigrant Legal Resource Center. Our attorneys carry them around and we’ve been doing a lot of these presentations over the last couple of weeks. While I think it’s a good idea, I also think carrying it around doesn’t guarantee you protection—being educated about what’s on the card is what really gives you the protection. We need to reach out to people and explain what’s on the card, and I think in the coming months we’re going to have to do a lot more of that.

Under President Obama’s Deferred Action for Childhood Arrivals (DACA), some young adults do have a set of protections. Can you briefly describe what these protections are, and how those rights are now much more vulnerable?

President Obama signed an executive order in 2012 creating DACA, a program that is administered through U.S. Citizenship and Immigration Services. This agency is in charge of services such as citizenship and visas and is separate from ICE. If you were under 31 years old on the date in 2012 when Obama issued the order, and if you had been in the country since 2007 without leaving and coming back, you were covered. If you were under 15 years old you had to wait to apply, but those were the basic parameters.

Under this program, you have to apply and you have to pay. It’s roughly 460 dollars, but the price is going to go up. Once you applied, if you didn’t have any criminal blots on your record and you could prove all the things that you needed to prove, you would get something saying you were approved for “deferred action,” which meant you could not be deported. It’s an idea that’s actually been around for many years, for different people and under different administrations. Basically, Immigration has long had the power to defer deportations, but now it’s done with a piece of paper. When people applied for DACA, they could also apply for a work authorization document. So now, very importantly, the people who got DACA can also work. They have a social security number, which is huge. DACA has to be renewed every two years, but there’s no end date.

The concern we have now is that during the campaign season, several of the Republican candidates, including President-elect Trump, promised that once elected, they would end the DACA program because they were going to “get tough” on immigration. (Some candidates said they were going to do other things as well, like build a wall and deport large numbers of people.)

There are about 750,000 people in the country right now with DACA. This could be revoked easily, the same way it came into being, through an executive order. It wouldn’t necessarily mean deportation, but it could mean you just lose the guarantees provided by the program, including your ability to work lawfully. That’s a huge concern right now for people.

There is a related concern that I’ve heard—that the information provided by those who’ve applied for DACA could now potentially be used to identify them, along with their family. Can you speak to that?

I can definitely speak to this fear, because this is the same fear that many people had about even applying for DACA; you’re turning over your name, your address, and all of your particulars. In the DACA application you have to tell them how, where, and what date you entered the country, and you have to prove all of it to get deferred action. When it was set up, guarantees were made that nothing on the service side of Immigration would be shared with the enforcement side, and that the information would be kept entirely separate. Now, people are concerned because it’s not just the prospect of revoking DACA that’s being talked about; it’s the possibility of deportation as well.

I get asked a lot: “Is this going to happen? Is my information safe? Will it be shared with ICE?” I cannot guarantee that it won’t happen. In the last few weeks, in many conversations, I’ve heard people say that this would be unheard of—if somebody steps forward because the government has given them a guarantee of confidentiality, then under various legal theories, to break that guarantee would actually be unlawful. The guarantee has been extended to get people to participate in something, after all. There are people saying that not only would it be politically distasteful, there may also be legal grounds to fight it or keep it from happening. Everything right now feels very unpredictable, including the guarantee from Immigration to not share information between the service and enforcement sides. I don’t feel like I can guarantee that the information won’t be shared.

The advice that I’ve seen from other civil rights organizations has suggested that if you don’t already have DACA status, you should not apply; if you do, you should feel OK moving forward with the renewal process. Do you agree with these suggestions?

Yes, but with one additional caution. As you suggest, we are advising people that don’t already have DACA to not apply now for the first time, out of concern for what may happen to your information. In addition to this, in the case of renewals, we’re telling people that if your contact information has changed since you first applied or last renewed, you should probably not file for renewal. Our reasoning is, why give them new information? Otherwise, if all the contact information is the same, we are encouraging people to get their renewal. Our thinking here is that it may take a while to phase this program out, so in the meantime, why not have your DACA renewed?

I’d like to turn to what can be done, with a particular focus on the role of educators. There is an idea being put forward to make sanctuaries out of schools, school districts, colleges and universities. What is your sense this—what might this mean, and do you think it’s a viable idea?

You know, the term sanctuary means different things to different people. In making presentations and talking to people about this, I tell them: “Here are some things you could offer undocumented students in your school or college that might make them feel safer. Once you provide this, you can call it whatever you want.”

To the extent that an institution has information about a person’s status, they have to make clear that they are not going to share this information with Immigration enforcement. In addition to this, you have to consider what types of information different institutions have. For the most part, public K-12 schools shouldn’t have anything; if everybody is entitled to K-12 education regardless of their status, then there’s no reason why that institution should ever ask about the immigration status of its students.

There may be situations where this doesn’t apply. When there was an influx of unaccompanied minors from Central America, I was involved with a lot of schools that were very generous in setting up special programs and providing special counseling. In cases like that, there might be some information that some schools have.

The public universities and colleges in California might have some of this information, because undocumented students can attend state universities and pay resident tuition if they meet certain guidelines, such as attending and graduating from California high schools. This is the AB 540 state law. The law applies to people that are U.S. citizens as well—people that went to high school here, left the state, and now want to come back, since they meet the requirements of AB 540 and can pay in-state tuition. The UCs, CSUs, and community colleges keep records on who has AB 540 status, since they know who pays what tuition, but it’s not necessarily obvious who among those students are undocumented.

That said, if a government agency had bad motives, it could probably ask higher education institutions for a list of all of their AB 540 students and then figure out who is undocumented. What’s legally important here takes us back to the Fourth Amendment; somebody can’t just walk into a campus and request these records without a subpoena, and the subpoena has to state why you want this. Usually, this has to be a subpoena for an individual person’s records, not everybody’s.

A lot of colleges and universities are nervous about the prospect of being asked to divulge private student information. I tell them that they could refuse to do this unless it meets the requirements of the Fourth Amendment—essentially, that you’re not going to turn over records, just as they wouldn’t turn over any private records unless there’s a crime that’s about to occur, or something really awful is going on and you want to prevent it, things of that nature.

Much like we do with medical privacy.

Exactly. So, there’s the issue of records. The other thing that students have expressed a concern about is whether ICE could carry out immigration raids on campuses, whether it’s K-12 or colleges. Again, this takes us back to the Fourth Amendment. Even outside of schools, there have been a lot of cases that say they can’t just do a sweep like that, even in a workplace or on a street, without some grounds to show that there are specific people there that they are trying to arrest for a specific reason. I believe that all educational institutions could say, “We’re not going to allow ICE on our campus unless they have a specific warrant for a specific person that shows why they want that person.” Some places are going to be even firmer than that and say, “You can’t come on our campus, period.” In terms of ICE coming on campuses to carry out enforcement, all schools and colleges could definitely take a position of insisting on the Fourth Amendment threshold.

In addition, a lot of students want the guarantee that school police—whether it’s private security guards at K-12 schools or private schools, or UC Police or police at the CSUs—that these campus law enforcement agencies won’t enforce immigration laws. That’s an easy guarantee to give, because federal law does not require any other law enforcement agency to participate in immigration enforcement. In fact, police departments themselves really don’t like enforcing immigration laws. They tend to think they’re better off focusing on their own work and expertise, and they also want people to step forward, become witnesses, and so forth. If the police are now seen as immigration agents, people won’t do that. This is long-standing tradition all around the country, not just in California.

Of course, that’s easier for us to say in California compared to another state where people really support the immigration policies of the President-elect. People in these states may feel like, “Okay, let’s deputize all our law enforcement officers to enforce immigration law,” which they could then do through special programs with ICE. Whether schools and universities would do that seems unlikely, but why not try to secure a guarantee that they won’t?

Doesn’t that seem like that would run into a violation of Plyler?

Right now there’s a policy in place stating that ICE will not carry out enforcement near schools. But you know what? That could disappear. That policy is just guidance for action, not law. I think some would argue that reversing this policy would violate Plyler, but some would say that Plyler is more about the right to enroll in and attend school, so rather than trying to deny that education from occurring, they could argue that they’re enforcing immigration law, not US Supreme Court education law. I don’t know.

I think that this issue is one of the good problems—why K-12 public schools around the country would not want to do that, like you’ve pointed out. There’s a strong case to be argued: essentially, now you’re undermining the right to education if you’re deporting the people that are in your school.

It does seem that the aggressive enforcement efforts create a double bind for young people and their families. The state, acting through public schools, mandates that young people must be at school and encourages parents to play an active role in their children’s education. Then, to the extent that the state initiates deportation actions in and around schools, it constructs potentially drastic consequences for families participating in public schools. It creates an impossible situation.

I think it is a double bind, and I would say it exists not just in the context of education—there are contradictory forces and conditions all around the place when it comes to immigration. It’s there in public health: there is the notion that people should have preventative care and kids should have vaccines and we now have Obamacare, while at the same time we have policies that don’t allow people to get medical care and undermine public health overall. Those tensions and contradictions are all around us. I think you’re right that if anybody tried to extend this into the educational realm, the notion that any kid has a right to public school would clearly be undermined. Like you said, parents would want to stay away from the school, they wouldn’t attend parent conferences or participate in PTAs, they wouldn’t raise money for their schools, all the things that we’ve encouraged parents to do.

The NEA has created a pledge for educators to be supportive and to make a difference in the lives of immigrant or refugee students. The pledge has two parts to it, and the first part says, “I will maintain a safe space for students in my school by being available to offer guidance and resources that will help them access all educational opportunities.” It’s a very general framing, and I was wondering if you could flesh that out, give it some meaning. What advice would you have for educators regarding what they might actively do to create a safe space, and to provide resources and guidance?

Well, you’re doing one of them right now. I think that educators have to be informed. It’s no longer going to be enough to simply be informed about Plyler v Doe or AB 540. Educators have to be informed enough to counsel students about going on to college, and understand that their parents are under stress, and that they may be under stress because of their parents. Now, I think that it may literally mean that educators have to be familiar with Know Your Rights. They need to become familiar with the nonprofits in their area that actually provide legal services. They need to be familiar enough to know what they can do to not turn over sensitive information. It’s going to heighten what they need to know about.

Many times the high school-aged students, because of the Spanish language media and other media they may tune into, they probably know as much or more than some of their teachers or principals about these issues. Their knowledge may not be accurate all of the time, but they’re definitely aware. If the aim is for students to feel safe, I think this will only happen if they feel like they’re dealing with knowledgeable people. If they feel like they know more than the adult they’re turning to, or thinking about turning to, they’re not going to do it. There has to be some communication to students and their families that educators are informing ourselves, that we are becoming part of a network. The pledge won’t be enough until people see and feel that educators are knowledgeable.

This brings us right to the second part of the NEA pledge: “Engage with other educators and community members to advocate to keep immigrant families together.” What are your thoughts about how educators should think about forming alliances, and whom they should form alliances with?

First of all, I think they have to make alliances among themselves. Institutions need leadership from the top, from principals or school boards. In the educational structure itself, there needs to be a sense that everybody from the top down is informed and supportive. I don’t think it’s enough any longer to simply build relationships with the community organizations and advocate to keep families together—you have to put some flesh on those bones. This is what I meant in urging educators to actually become familiar: what does it mean to “keep a family together”? If a student comes to you and says, “ICE came and got my dad or my mom,” you need to know what to do about that. You must understand that you may be the only person they’ve told. Who are you going to reach out to for help in getting representation for that family member? Like I said, there’s no court-appointed lawyers in the immigration context. You’re either going to have to raise money so that family can hire a lawyer, or you’re going have to find somebody that’ll take that case low-cost or free, which is hard.

“Keeping families together” will take on a very specific meaning. In the past it might have meant advocating for immigration reform, or advocating for really good laws in California, which we now have a lot of. Now, though, it might literally mean how, as an educator, you deal with your student or their family having difficulties with ICE.

The teachers I’ve spoken with lately have commonly asked about what organizations or legal services they can connect with. Do you have a general answer to these questions, or to the related question of where educators should turn to become properly informed about these issues?

I would tell any educator that they must become familiar with nonprofits in your area that have the capacity to help. Chances are, like all nonprofits, educators’ local nonprofits are strapped in terms of finances and resources. Which is why I encourage becoming familiar with private immigration attorneys that do deportation defenses and thinking about ways to raise funds, because nonprofits, if there really is an increase in deportations, all their resources are going to severely stretched.

I think that there could also be efforts by educators to put pressure on the state to start thinking about funds that could go to K-12 institutions for things like immigrant integration. Right now there are state funds for immigrant integration, and I think the state is open to thinking about these things, so it’s not entirely unlikely that educators could bear some influence. There’s a new Office of Immigrant Integration in Sacramento, and they’ve given out grants for people and nonprofits to do DACA work and projects related to citizenship. There might have to be an effort to help institutions get additional resources for what might end up being used as legal funds.

In theory, those could come from either the state or municipalities or school districts, right?

Right. I know that in Los Angeles, for instance, the mayor is looking at creating a fund for immigration services, and he’s holding meetings at the city level about this. Now, when you get into smaller jurisdictions, this is harder to achieve, but it’s doable for counties, states, and some larger cities. I was surprised to learn this, but New York City has immigration lawyers in K-12 schools that they fund to help with the immigration needs of their students. People need to follow this sort of thinking.

With our program, for example, we have worked really hard to get some of the UC campuses to think of a campus-based lawyer for immigrant students as a student service, much like any other kind of student service. That’s the kind of thinking we need everywhere. And, our program represents the students and their families, so we do immigration services for their families as well. That is, students who are citizens come to us because their parents might be undocumented. We are the University of California Undocumented Student Service Center, but some of the people we serve are either legal permanent residents or U.S. citizens who are seeking services for their family members.

The center you direct provides legal services for students who are feeling very vulnerable right now, yet who have been the heart of political activism in recent years. What signs of hope and civic energy have you seen in the last couple weeks from the Dreamers?

I think that initially there was tremendous shock, and now people are talking about what they’re going to do to preserve DACA. At the same time, and much to their credit, they do not want to “leave their families behind,” as they frequently put it. They don’t want to advocate just for DACA, which for them would be like saying, “We’re the privileged young college students.” They really care about their families as well.

I think there is going to be energy to preserve DACA. But I think there’s going to be a lot of organizing that’s going to happen to reject the notion of three million deportations as un-American, anti-democratic, unrealistic, and racist. Now that the initial shock is wearing off, from what I can tell, people are beginning to think, “We were really organized before, and we got DACA. We created a national movement, and now, everybody knows what a Dreamer is.” They’re beginning to think like that again.

I look forward to that same spirit carrying us into the future.

Me too.