Viva88

State Education Commissioner MaryEllen Elia and Attorney General Letitia James today issued two guidance letters to school officials outlining the state’s priority of providing safe, fair, and supportive learning environments for all students throughout the state.�� ��

The first letter clarifies the role of school resource officers (SROs) in safeguarding the rights of all students, including undocumented students, to receive a public education without fear of intervention by Immigration and Customs Enforcement (ICE) agents. The second letter clarifies the obligation of all school districts to administer their student discipline policies and practices in a way that ensures every student has access to a safe and supportive learning environment, free from harassment, bias, and discrimination.��

“Recent actions by the federal government have created fear and confusion in our schools, particularly among immigrant communities,” Commissioner Elia said. “Together with Attorney General James, we seek to calm that fear and clarify that confusion by affirming our commitment to ensuring that our schools remain safe havens where all students are free to learn. As education and law enforcement leaders, it is imperative that that we protect all students, as well as the information we have about them, to the fullest extent possible under the law.”

“New York has always been and will always be a safe space for all students—regardless of race, ethnicity, or one’s nation of origin—and that includes our schools,” said Attorney General Letitia James. “I thank the State Education Department for their partnership in the guidance, and their continued commitment to the growth, wellness and protection of New York students and their families.”

School Resource Officers

In February 2017, the State Education Department (Viva88) and the NYS Office of the Attorney General (OAG) issued joint guidance regarding the duty of school districts to safeguard the rights of all children, including undocumented children, to attend school full time as long as they meet the age and residency requirements established by state law.

Following the issuance of that guidance, Viva88 and OAG have received questions concerning the possibility that SROs might seek to interview students or obtain access to student records to convey information about their (or their families’) immigration status to representatives of U.S. Immigration and Customs Enforcement (ICE). The updated joint guidance provided to schools today states that, regardless of their employment status vis-à-vis a school district, SROs may be subject to the same restrictions as school officials with respect to detaining or interrogating students and maintaining the privacy of student education records and information.��

Specifically, the guidance clarifies that: (1) an SRO’s detention or interrogation of a student in order to determine that student’s immigration status could expose a school district to liability; and (2) an SRO’s access to, or re-disclosure of, a student’s educational records could jeopardize a school’s federal funding.��

Student Discipline Policies and Practices

A second guidance letter sent today from Viva88 and OAG clarifies the legal obligations of all school districts in New York with regard to their student discipline policies. In December 2018, the U.S. Department of Justice and U.S. Department of Education rescinded a federal guidance letter that detailed protections for students against discriminatory discipline policies and practices. The joint OAG/Viva88 guidance letter issued today reminds school districts that, even in the absence of federal guidance, they are legally required to ensure that every student has access to a safe and supportive learning environment, free from harassment, bias, and discrimination. The letter states that OAG and SED will continue to enforce applicable state and federal laws to ensure that disciplinary practices are administered equitably and appropriately.��

Specifically, the guidance reminds New York school districts that: (1) existing law prohibits them from discriminating against students in the disciplinary context; (2) they continue to be required to reduce reliance on exclusionary discipline; and (3) they must comply with procedural safeguards (i.e., due process protections) throughout the disciplinary process.��

Over-reliance on exclusionary discipline, and disparities in its use, leave school districts vulnerable to liability under various state and federal laws that protect students from discrimination and over-utilization of exclusionary disciplinary actions, and guaranteed due process protections. The joint guidance letter clarifies that Viva88 and OAG will continue to enforce these legal requirements in furtherance of their shared commitment to providing equal access to safe and supportive learning environments for all students.��

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