After Congress failed to enact comprehensive immigration reform legislation, President Obama issued an executive order in June 2012 known as the Deferred Action for Childhood Arrivals (DACA). This executive order allowed certain undocumented individuals, who came to the United States before 2007 (known as “Dreamers”), to request and receive a renewable, two-year reprieve from deportation and other benefits such as work authorization and participation in Social Security. To be eligible, DACA beneficiaries must have entered the United States before they turned sixteen years old, be under thirty-one years old in 2012, lived continuously in the U.S. since 2007, be enrolled in school or the military (or have successfully completed time in school or the military), and have no convictions for certain crimes. DACA did not provide lawful immigration status or a path to citizenship for Dreamers, but allowed them to “rest easy” knowing they would not be a priority for deportation and could lawfully work in the United States for two years (with an option to renew the permit for additional two-year periods). Dreamers had to register for DACA to receive the benefits; in 2012, as of today, about 800,000 individuals receive DACA benefits.

On September 5, 2017, President Trump ordered an end to DACA. President Trump called DACA an abuse of executive authority and called on Congress to pass comprehensive immigration reform legislation by March 5, 2018. Attorney General Jeff Sessions issued a memorandum ordering the Department of Homeland Security to rescind the DACA policy and consider “an orderly and efficient wind-down process.” The Department of Homeland Security issued a FAQ document that details how this wind-down process will work. Any current DACA permit will remain valid until it expires at the end of its two-year period, at which time the individual would “revert” to unlawful status. Any current DACA beneficiary whose benefits expire between now and March 5, 2018, has until October 5, 2017 to apply for renewal; theoretically these benefits could be extended for an additional two-year period. But there will be no new applications going forward.

How does this affect our Indiana schools?

Because K-12 school districts are required to provide free public education to all children within the district’s legal boundaries, regardless of the child’s immigration or citizenship status, schools are likely to enroll and educate many undocumented students.[1] Not only do undocumented children have the right to attend school, but they are mandated – just like every other child in Indiana between the ages of seven and eighteen – to attend school under the compulsory attendance law.[2] These undocumented students may be current DACA beneficiaries or planned to apply for DACA benefits upon graduation.

In addition, school districts may employ young teachers or other employees under work authorization documents issued under DACA, who are now in jeopardy of losing their work permit. As a government agency, public schools are required by federal and Indiana law to use Form I-9 and E-verify to ensure they are not employing an immigrant without a valid work permit. If a school employee’s DACA benefits expire, the employee loses work authorization and the school cannot continue employee's employment.

If Congress fails to act, former DACA recipients may face deportation as early as March 2018. However, the Department of Homeland Security stated that they are not priorities for deportation, unless they are a threat to national security.[3]

Accommodating students

Many school administrators have reported an upsurge in anxiety among undocumented students, or students with undocumented family members, since President Trump took office. This DACA announcement will likely increase the need for school districts to accommodate immigrant students: Assuring they are not subject to discrimination or harassment, are appropriately evaluated and accommodated for anxiety, depression, or any other special education needs, and feel safe at school.

Schools should review and, if necessary, revise any procedures for complying with immigration enforcement seeking access to students, their families, or student records. Schools have conflicting obligations under Plyer v. Doe, the U.S. Department of Education Office for Civil Rights, the federal Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), the Family Educational Rights and Privacy Act (“FERPA”), and Indiana law requiring cooperation with law enforcement officials. To alleviate the conflicting legal obligations, it behooves school districts to adopt a “don’t ask, don’t tell” policy and not require, inquire, document, or know anything about a student’s immigration or citizenship status.

If the student’s DACA status is due to expire soon, the student needs to file documentation to renew their DACA status before October 5, 2017. If a student does not have current DACA status, they are not able to apply for first-time status. This may be particularly hard on students who are close to graduating and hoped to pursue work authorization documentation through DACA. Students may pursue higher education; however, undocumented immigrants cannot receive in-state tuition rate at state universities/colleges or most financial aid benefits (DACA did not change this).[4]

Accommodating school employees

Current school employees, employed under a DACA work authorization, remain under valid work authorization documentation until the conclusion of their permit’s two-year period. If their DACA status (and associated work permit) is due to expire before March 5, 2018, they are eligible to apply for renewal and may theoretically be granted DACA status (and associated work permit) for another two years if they apply for renewal by October 5, 2017.

Once an individual’s DACA status expires, they are unlawfully present in the United States, are not authorized to work, and are subject to deportation.

Schools should review and, if necessary, revise any policies or procedures for verifying the work authorization status of current or future employees. Schools should also encourage any employees currently working under a DACA-issued work authorization permit to seek immediate legal counsel. Timing is urgent: if the employee’s DACA status is due to expire soon, the employee may need to file documentation to renew their DACA status before October 5, 2017. Schools may also need to start preparations for filling roles that will be vacated when an individual’s DACA benefits expire. Keep in mind: This can all change with congressional action and/or looming court battles. It is imperative for students, their families, and school employees to seek legal counsel.

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[1] Plyler v. Doe, 457 U.S. 202 (1982). Schools are still able to request documentation to establish residency in the district boundaries, such as utility bills or a lease agreement. But inquiring into the student or family’s immigration or citizenship status, or requiring a U.S.-issued birth certificate or passport or Social Security number, is not relevant to establishing residency in the district.

[2] I.C. 20-33-2-6.

[3] https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca.

[4] I.C. 21-14-11.