Law & Courts

Trump’s Anti-Immigration Rhetoric Fuels Data Concerns

By Benjamin Herold — January 13, 2017 10 min read
Nancy Villa was brought to the United States illegally from Mexico as a child. She has a work permit through a federal program started under the Obama administration called Deferred Action for Childhood Arrivals, or DACA. Villa, who attends Harold Washington College in Chicago, has three siblings protected under DACA and two siblings who are U.S. citizens.
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Spurred by President-elect Donald Trump’s promise to deport millions of undocumented immigrants, some education officials are wrestling with the possibility that student data might be used in new ways that could have harsh consequences for some students and families.

In recent weeks, the boards of California’s Los Angeles Unified and Santa Cruz city schools passed resolutions vowing to resist any requests for student information from federal immigration officials. State Superintendent of Public Instruction Tom Torlakson supported their stance, calling on districts throughout the state to become “safe havens” for immigrant students. The Denver, Minneapolis, and District of Columbia school systems also affirmed their commitments to not share student data that might imperil undocumented students and families, unless compelled by law.

“There are certainly records that could be part of our files that could be of potential interest in [deportation] proceedings,” said Los Angeles school board chair Steven Zimmer in an interview. “We are going to protect that information.”

Schools generally do not track whether students or their families are in the country illegally. They do, however, typically collect and store a wide range of related data, including students’ country of origin, home language, and date of entry into U.S. schools. Schools also typically maintain “directory information” that includes students’ home addresses and phone numbers. In some states, they may also collect and store some students’ Social Security numbers, although schools are by law not allowed to deny enrollment to a student without such information.

In addition, dozens of state education departments maintain databases containing information used to determine if children qualify as immigrants under federal guidelines. The U.S. Department of Education operates the Migrant Student Information Exchange, which allows states to share educational and health information on migrant children—many of whom are immigrants, and some of whom may be undocumented—who travel across state lines.

In the era of “big data,” such information could easily be combined with other data sets and used to make inferences about students’ immigration status, said Bill Fitzgerald, the director of the Education Privacy Initiative at Common Sense Media. The information held by schools and states could also be used to help locate or investigate individuals who may be subject to deportation, or to provide tips to immigration enforcement authorities.

However, none of those potential uses aligns with the original reasons for the collecting the data. And the information is legally protected by federal and state privacy laws, as well as a 1982 U.S. Supreme Court ruling that enshrines the right of undocumented children to a free public education.

But since his November election victory, Trump has nominated immigration hardliners to key Cabinet and advisory positions. And though elected officials in many liberal cities have vowed not to cooperate with federal immigration-enforcement authorities, millions of Trump supporters embraced his call for a crackdown on illegal immigration, according to pre-election surveys by the Pew Research Center.

Students’ Legal Protections

The resulting uncertainty alone could have a big impact on schools and families, said Monica Bulger, a senior researcher at Data & Society, a New York City-based research institute focused on the social and cultural issues arising from increasing use of data-based technologies.

Protecting and Sharing Data

Some school district leaders are pondering the implications of shielding—or sharing—with federal authorities information pertaining to students’ immigration status. Three primary legal frameworks apply:

Privacy: The Family Educational Rights and Privacy Act prohibits schools from sharing personally identifiable student information without parental consent. But the law contains exceptions for instances in which schools must “comply with a judicial order or lawfully issued subpoena,” and “directory information,” such as name and address, can be shared if there was prior notification. State privacy laws would also apply.

Plyler v. Doe: This 1982 U.S. Supreme Court ruling holds that children in the United States are entitled to a free public education regardless of their immigration status. Districts must not “chill” the ability of undocumented students or the students of undocumented parents to enroll and attend school, which has direct implications for the sharing of student information.

Vendors: The federal Stored Communications Act would govern any federal requests for student data collected and stored by technology vendors. The law allows law-enforcement authorities to access limited types of information (such as metadata) with a subpoena, which in some cases may be granted without judicial oversight. More concrete information about specific individuals typically requires a court-approved warrant, which can only be issued with probable cause.

Source: Education Week

“My concern is that right now there is a lot of fear and speculation,” Bulger said. “In an anti-immigrant environment, any data can become fair game to penalize families.”

On the campaign trail, Trump called for the creation of a “deportation force” to round up and remove all of the country’s estimated 11 million undocumented immigrants. After winning the presidency, Trump said his immediate priority will be to deport 2 million to 3 million undocumented immigrants he believes to have criminal records. His remarks have not focused on school-age children.

Trump and his transition team have offered mixed signals on whether they might target undocumented immigrants who came to the United States as children and willingly provided extensive information to the federal government as part of President Barack Obama’s Deferred Action for Childhood Arrivals policy. K-12 schools and districts and state education departments do not hold any of the information provided by those “Dreamers.”

Elected officials in hundreds of U.S. cities and other local jurisdictions have said they will work to limit their cooperation with any such plan.

The school board in Minneapolis is among those vowing to not let authorities from U.S. Immigration and Customs Enforcement come on to their physical campuses without a valid warrant or court order. A resolution passed in December also states, “District employees, contractors, volunteers and representatives shall not, unless compelled by a valid court order, by law or subsequent to receiving a signed release, disclose to Immigration and Customs Enforcement (ICE) officers any information about a student’s or family’s immigration status.”

Such a stance could be tested under a variety of scenarios.

Immigrant Students' Data a New Worry for Ed-Tech Companies

Fears that the federal government could seek to use information related to immigration in ways that could be harmful to some students and their families are being felt in the ed-tech industry, as well as school districts.

“This isn’t just an education issue. It’s a data issue,” said Bill Fitzgerald, the director of the Education Privacy Initiative at Common Sense Media.

President-elect Donald Trump has consistently called for a crackdown on illegal immigrants, though the details of what that might mean have shifted throughout his campaign and presidential transition. Although there has been no explicit call for using student data to aid in immigration-enforcement actions, some school districts and immigrant advocates are preparing for a variety of possibilities.

Immigration advisers to the Trump transition team did not return requests for comment.

In the K-12 sector, a wide range of vendors—from makers of student-information systems to developers of educational software to online-service providers—collect and store huge amounts of student data. The information is generally protected by state and federal privacy laws, as well as the contracts between companies and school districts.

Some ed-tech companies, such as San Francisco-based Clever, which helps thousands of districts manage the information they share with vendors, have long-standing policies of not collecting sensitive data they don’t need to run their services.

“From our perspective, the best way to make sure a student’s immigration status isn’t getting out is to not have it in the first place,” Clever’s CEO, Tyler Bosmeny, said in an interview.

In other cases, companies may not have the technical ability to provide the data they store, at least in an unencrypted format. And tech companies would almost certainly challenge any broad federal request (or demand) for information on entire groups of people, said John Verdi, the vice president of policy at the Future of Privacy Forum, a Washington think tank.

But there’s still a considerable gray area.

The federal Stored Communications Act would govern any federal requests for student data collected and stored by technology vendors, Verdi said. The law allows law-enforcement authorities to access limited types of information (such as metadata) with a subpoena, which in some cases may be granted without judicial oversight. More concrete information about specific individuals typically requires a court-approved warrant, which can be issued only with probable cause.

Whether and how tech companies comply with more-targeted requests would likely be determined only after an extensive legal back-and-forth on the nature of the information being sought and how the concept of probable cause is interpreted, among other issues.

“It’s uncharted territory, and I don’t think it will be settled quickly,” Verdi said. “Tech companies holding lots of data have stood up for their users. But when there is a proper legal notice delivered, these folks comply with the law.”

Thousands Sign Resolution

With so much still uncertain, more than 2,800 technology-industry workers have signed on to a pledge to resist any efforts to “build a database of people based on their constitutionally protected religious beliefs” or “facilitate mass deportations of people the government believes to be undesirable.” Trump, whose public statements have indicated changing stances on the details of immigration-related issues, has at various times voiced support for mass deportations and for a registry of all Muslims living in the United States.

Among the specific commitments made by those supporting the “” movement are to advocate for minimization of data collection and retention within their organizations, to support end-to-end encryption wherever possible, and to engage in responsible whistleblowing if they are unable to stop what they believe to be illegal or unethical uses of data.

Ben Kraft, an infrastructure engineer at the Mountain View, Calif.-based nonprofit Khan Academy, is one of the ed-tech workers to sign on.

“I’m not worried that [Khan Academy founder Sal Khan] is going to come up to me tomorrow and say, ‘I need you to build a database of Muslims for me.’ That’s not our field, and I trust the leadership not to do that,” Kraft said in an interview.

“But we do have a lot of data on our students, by virtue of recording logs for debugging and understanding how people are using our product,” he said. “It’s something to think about going forward.”

The most dramatic, but least likely: a massive federal effort to mine student records wholesale in a dragnet-style search for undocumented immigrants.

Such an untargeted approach would almost certainly face stiff legal challenges from schools and advocacy organizations. Two primary factors would be at play, said Francisco M. Negrón Jr., the chief counsel for the National School Boards Association.

The first is privacy laws, especially the federal Family Educational Rights and Privacy Act. Under FERPA, schools are prohibited under most circumstances from sharing personally identifiable student information without prior parental consent.

And the second is Plyler v. Doe, in which the Supreme Court ruled that children in the United States are entitled to receive a free public education, regardless of their immigration status. The federal departments of Education and Justice have repeatedly determined that schools may not pursue policies or practices that might discourage such students from enrolling or remaining in school.

Any broad federal requests or demands for data pertaining to students’ immigration status that might “chill students from coming to school” would be a concern, said Negrón. For the time being, at least, they would also seem unlikely to survive a court challenge or win broad public support.

Anti-Immigration Strategies

Indeed, even hardline immigration opponents describe the idea of a federal fishing expedition using student records as far-fetched, and potentially counterproductive to their cause.

“We should not be enforcing immigration laws at the schoolhouse door,” said Ira Mehlman, the media director for the Federation for American Immigration Reform, or FAIR. The organization has been labeled a “hate group” by the Southern Poverty Law Center, which cites FAIR’s ties to white nationalists and white supremacists.

Mehlman dismissed the charge as “nonsense,” saying FAIR does not support immigration restrictions based on such characteristics as race or religion.

Other scenarios are not so easily dismissed, said a variety of experts 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 non-personally identifiable information—such as information about rapid growth in students who are foreign-born 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 FAIR-backed 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 Alabama 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.

A version of this article appeared in the January 18, 2017 edition of Education Week as Trump’s Anti-Immigration Rhetoric Fuels Data Concerns


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