In the wake of Senator Jeff Sessions’ Senate confirmation hearings for his appointment as Attorney General, many states, counties, cities, and schools are gearing up for the mass deportations both he and President-elect Trump repeatedly threatened over the past year. Sanctuary jurisdictions remain dedicated to protecting their undocumented populations from deportation, even in the face of threats made by the federal government to block all funding to jurisdictions providing safe haven. But for DREAMers—undocumented children brought into the United States illegally by their parents—sanctuary campuses may provide the best protection against deportations.
What does it mean to be a sanctuary ?
Broadly, designation as a sanctuary jurisdiction means that local officials and law enforcement will not cooperate with federal U.S. Immigration and Customs Enforcement (ICE) officials. Non-cooperation can range from refusing to comply with ICE detainers to otherwise impeding the efforts of federal law enforcement officials to interact with targeted detainees.
Currently, about 300 sanctuary jurisdictions are identified by ICE as having a policy that restricts immigration enforcement, but that number is growing as schools join the fight. According to the Pew Research Center, between 200,000 and 250,000 college students in the United States are DREAMers, and many universities and colleges are stepping up to protect them from deportation. Notably, even Trump’s alma mater, the University of Pennsylvania, renewed its pledge to block federal agents from removing students without a warrant.
Even amidst the threat of losing federal funding, a number of sanctuary campuses are vowing to protect their undocumented student population from deportation by refusing to work with federal law enforcement personnel who want to deport their students. More so than sanctuary cities and states, schools can rely on precedential law and policy to justify their refusal to cooperate with ICE officials.
In 2011, ICE officials issued a memorandum setting guidelines for enforcement actions in ‘sensitive locations,’ including schools. There are exceptions to the rule, indicating that the guidelines are not hard and fast, but the memorandum is nonetheless indicative of the federal government’s reluctance to pull undocumented students from their classrooms.
Universities and colleges have a number of additional tools at their disposal, including the Fourth Amendment, which prohibits unreasonable search and seizure. Additionally, the Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. It is applicable to any school that receives funding under the U.S. Department of Education. Generally, schools must have written permission to release any information relating to a student’s education records, unless complying with a judicial order or subpoena, among other unrelated exceptions.
Although schools may disclose a student’s name, address, telephone number, date and place of birth, and attendance records, they must usually notify the student first, and allow them adequate opportunity to reject the request. At the end of the day, the school can decide whether or not to release the information to federal or local law enforcement without a warrant. Given the political climate, however, many schools will likely be suspect of any request for information regarding an undocumented student.
ICE’s need for local assistance to help pursue removable individuals is not new. Until 1996, immigration enforcement—a.k.a. deportations and removals—fell solely under federal purview, until the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) law was passed, which allowed for the deputization of local law enforcement as immigration enforcement officials.
In 2008, George W. Bush’s Secure Communities initiative began routing routine fingerprints to the FBI to cross-reference with the Department of Homeland Security (DHS) database. If the individual was deportable, DHS issued the local jurisdiction a detainer requiring them to hold the individual until ICE could put him or her in federal custody. As a result, communities became increasingly wary of local law enforcement. Furthermore, increased vulnerability to Fourth Amendment lawsuits led many local jurisdictions to refuse to honor detainer requests from federal officials.
President Obama’s Priority Enforcement Program (PEP) replaced Secure Communities in 2015. Now, DHS requests that the local law enforcement agency notify ICE of the pending release from custody of a removable individual. Rather than issue indefinite detainers that were increasingly ignored, DHS now requests that local law enforcement agencies maintain custody of a removable individual for a period of up to 48 hours beyond their otherwise protected release, or transfer custody to a participating jurisdiction.
Despite the revised nature of the requested cooperation between federal enforcement officials and local jurisdictions, resistance is increasing. What’s more, according to the Supreme Court, the federal government cannot simply force local law enforcement personnel to do their bidding either.
Sanctuary jurisdictions face an uphill battle should Attorney General Sessions follow through on his promise to revoke federal funding for uncooperative jurisdictions, but sanctuary colleges may have more leverage to protect their DREAMers. It is an important issue to follow into the Trump administration.