President Biden issues series of executive orders addressing immigration
Many of the previous administration’s executive orders around immigration are being rolled back
In his first days in office, President Joe Biden has issued a series of executive orders revising U.S. immigration policy, raising questions for governing boards about the potential impact on students and schools. The executive orders roll back many of the immigration objectives of the last administration, including some of the measures that impact students and schools, but governing boards likely will not need to make policy changes in response.
Immigration policy under President Trump
In early 2017, students, families and education leaders expressed concern for undocumented students in California schools after then-President Donald Trump signed executive orders revising U.S. immigration policy. While numerous changes were made, school leaders expressed particular concern about policies increasing the number of immigrants considered a priority for deportation, the anticipated risk of students failing to attend school to avoid contact with immigration authorities and the potential disruptions to school campuses and learning environments as a result.

Concerns were also raised by CSBA’s members when then-President Trump announced later in 2017 that he was cancelling the executive order that created Deferred Action for Childhood Arrivals (DACA), and at a time when changes in immigration policy indirectly threatened already strained K-12 public school funding.

School district and county office of education responses
These concerns set off a series of actions in California, including changes in state law, revisions to school board policies, governing boards passing board resolutions and numerous legal challenges.

CSBA first issued guidance for boards on existing U.S. immigration law in early 2017, reiterating that school districts and county offices of education must provide all children equal access to school, regardless of their immigration status, and that to comply with federal law and Supreme Court precedent, schools may not ask about a student’s immigration status, may not require documentation that discourages undocumented students from enrolling in school, and may not share student records without parental consent.

CSBA drafted sample board resolutions, and governing boards throughout the state passed resolutions affirming their commitment to provide all children equal access to education, regardless of immigration status, and resolutions encouraging the continuation of the DACA program.

School boards also updated numerous board policies1 after the California Legislature passed Assembly Bill 699 in 2017, which mandated that school districts adopt a policy consistent with a model policy developed by the California Attorney General, limiting assistance with immigration enforcement at public schools, and prohibiting the collection of information regarding the citizenship or immigration status of students or their family members.

CSBA’s Education Legal Alliance filed amicus briefs in lawsuits challenging the rescission of DACA in 2018 and challenging the revised public charge rule in 2020.

Changes in immigration policy under President Biden
President Biden has issued a series of executive orders aimed at rolling back many of former-President Trump’s immigration policies, including some of the policies that spurred action among local educational agencies in recent years.

On Jan. 20, 2021, President Biden issued a Memorandum directing the Department of Homeland Security Secretary to take all appropriate action to preserve and fortify DACA. As CSBA argued in its amicus brief before the Ninth Circuit Court of Appeals, uncertainty over DACA has discouraged some undocumented students from attending school, and exacerbated teacher shortages throughout the state. While the Supreme Court had held in June 2020 that the Trump administration may not immediately proceed with its plan to end the DACA program, this Memorandum should provide more assurance to California students applying for DACA.

On the same day, acting DHS Secretary David Pekoske issued a Memorandum directing a review of existing immigration enforcement policies, and setting interim policies for enforcement during that review that focus enforcement on individuals who pose national security threats, individuals apprehended at the border, and individuals who are determined to pose a threat to public safety. While these policy changes may address some of the perceived fear of deportations in school communities and the potential impacts on educational outcomes, school districts’ roles are unchanged, as they must continue to follow their board policies passed after AB 699.

President Biden also issued Executive Order 13993 revoking the 2019 executive order and 2020 Memorandum that would have excluded undocumented immigration from the 2020 U.S. Census. School leaders had worried that attempts to reduce census count in California and other states with significant immigrant populations would have led to a decrease in federal funding for K-12 public schools.

Lastly, on Feb. 2, 2021, the White House issued Executive Order 14012, which ordered review of agency actions on the public charge inadmissibility. The revised public charge rule required immigration officials to consider as a negatively weighted factor in immigration decisions any use of a wide variety of federal non-cash-based subsidies, including Medicaid, SNAP/food stamps, and Section 8 housing. CSBA’s ELA filed an amicus brief in a case challenging the revised public charge rule in 2020, as school leaders worried that the rule would deter families from seeking assistance under federal programs, and place an additional burden on school-based health, nutrition and other services. The Ninth Circuit Court of Appeals on Dec. 2, 2020 had barred DHS from enforcing the revised public charge rule in several states, including California, until the validity of the rule is determined.

These policy changes will likely lessen threats to some avenues of federal school funding, may lessen fear of deportation in school communities, and will allow more eligible students to apply for DACA. Immigration policy remains a complicated area of law that has occupied a larger-than-normal space in education conversations in recent years. While governing boards likely do not need to take any action in response to these changes, CSBA will continue to keep members apprised of additional policy changes and the potential impact on K-12 public education.

Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Please contact your district or county office of education’s legal counsel for legal questions related to this information.

1 Board Policies updated included BP 0410 (Nondiscrimination in District Programs and Activities), BP 5111 (Admission), BP 5111.1 (District Residency), BP 5125 (Student Records), and BP 5145.13 (Response to Immigration Enforcement).