The U.S. Supreme Court decision Plyler v. Doe (1982) affirms that schools cannot deny students a free public education based on their undocumented or non-citizen status or that of their parents/guardians. This foundational legal precedent ensures access to education for all students, regardless of immigration status.
All children have a right to equal access to a free public education, regardless of the immigration status of the child or their parent/guardian.
While schools may require proof of residency within the district, information about citizenship or immigration status is never needed for school enrollment.
Federal and state laws protect education records and personal information. These laws generally require written consent from parents/guardians before releasing information, unless it is for educational purposes, otherwise authorized by law, or in response to a court order or subpoena.
Some schools collect and make public “directory information” about students, such as name, address, email address, and phone number. If this is a practice, the local educational agency (LEA) must provide parents or guardians with written notice of its directory information policy and provide the option to refuse the release of their child’s information. The notice must effectively notify parents with a primary or home language other than English.
What types of information require parental consent before a school can disclose it?
Generally, school records that include personally identifiable information (PII) cannot be released without parental consent, unless it is for educational purposes, otherwise authorized by law, or in response to a court order or subpoena. Examples of PII include: a student’s or family member’s name, address, or other information that would make it possible to identify the student with reasonable certainty.
Who can provide or withhold consent to disclose information from a student’s education record?
A parent, guardian, or individual acting as a parent in the absence of a parent or guardian has the right to provide or withhold consent to release a student’s education records. Adults providing daily care and supervision for children whose parents have been detained or deported may meet this definition of parent. LEAs should consult with legal counsel to clarify their consent policies.
Under what circumstances can students manage the disclosure of their education records?
When a student turns 18 years old, the student becomes an “eligible” student and the privacy rights of the parent transfer to the student. The eligible student can consent to disclose records, refuse to disclose records, and access their records without the consent of a parent. The law does not preclude LEAs from providing younger students with rights to manage their education records—as long as the rights given to the non-eligible student do not supersede the parent’s rights. Providing such rights to youth under age 18 may be particularly valuable when youth have become separated from their parents and guardians, such as when a parent is detained or deported. For example, “schools may use their judgment in determining whether an unaccompanied minor is responsible enough to exercise certain privileges, such as inspecting and reviewing education records and providing consent for disclosure.”
Are there exceptions to the consent requirement that allow schools to release student education records to law enforcement officers?
Yes, with limits, if the law enforcement officer provides a valid court order or lawfully issued subpoena. Parent or eligible student consent is not required to comply with a court order or subpoena, but only if the LEA makes a reasonable effort (for example, a telephone call witnessed by a third party, telegram, or registered letter) to notify the parent/guardian or the eligible student of the order or subpoena in advance of compliance so that protective action can be sought. Such efforts are not required if the court order or subpoena itself orders that the document not be disclosed. To ensure full compliance, school staff should not release student records to law enforcement without consulting with the LEA’s designated administrator or legal counsel.
Can schools release directory information about a student?
Directory information is information about students that “would not generally be considered harmful or an invasion of privacy if disclosed.” Typically, directory information includes details such as a student’s name, address, photograph, birth date, and participation in school activities. However, if a student may be undocumented, releasing such information could be harmful or an invasion of privacy. Therefore, schools should exercise caution in releasing directory information.
In addition, LEAs must provide parents with written notice of their directory information policies and the option to refuse release of their child’s information. The notice must effectively notify parents whose primary or home language is not English. Given recent fears related to potential immigration enforcement activity at schools, LEAs should consider sending all parents instructions about how to refuse the release of directory information—even if notice was provided earlier in the school year.
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