Reference:

_{ASCA (2022). American School Counselor Code of Ethical Standards. Alexandria, VA: Author.}

_{https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#:~:text=School%20counselors%3A,their%20identity%20and%20psychosocial%20development.}

This Legal Guide addresses the relevant laws that relate to undocumented immigrant students and their families in terms of the duties of school counselors to maintain confidentiality, prepare students for post graduation, and to be knowledgeable on current laws.

Relevance:

Texas has the highest amount of high school students that are undocumented, more than 18,000 students in 2023 (Tamez-Robledo, 2024). As a counselor, it is important to understand how to best support this student population and earn their trust as they deal with additional hurdles that legal citizens do not have to face. A counselor should understand that undocumented students have the same right to confidentiality as citizens and that schools are considered safe havens where migration officials can not deport students.

Emerging Trends: Changing Laws

As the political climate changes and the immigration debate continues, the atmosphere constantly changes and counselors should strive to keep up to date in order to be a source of information. DACA is one program which was threatened by a judicial court case, and then reaffirmed by President Biden this year. Unfortunately, not many graduates are eligible for the program and must continue to live in the shadows and risk deportation. Some school districts are building trust with undocumented students and their families by serving as sanctuary schools.

Reference:

^{Tamez-Robledo, N (2024, June 14). Undocumented high school students are now the ‘post-DACA generation. EdSurge. https://www.edsurge.com/news/2023-06-14-undocumented-high-school-students-are-now-the-post-daca-generation#:~:text=By%20Nadia%20Tamez%2DRobledo%20Jun%2014%2C%202023&text=This%20year%20marks%20the%20first,immigrant%20advocacy%20group%20FWD.us}

It restates the importance of a counselor to provide a safe and respectful environment for all students, regardless of immigration status and provides the background behind Plyler v. Doe (1982) and DACA. The statement discusses the barriers and stressors that undocumented students experience and provides specific actions that school counselors can do to advocate for undocumented students. The role of a school counselor is to understand the additional stressors and barriers that undocumented students face and help them overcome these to succeed as students.

References 

American School Counselor Association. (2019). The School counselor and working with students experiencing issues surrounding undocumented status.  Alexandria, VA: Author. Retrieved from https://www.schoolcounselor.org/Standards-Positions/Position-Statements/ASCA-Position-Statements/The-School-Counselor-and-Working-with-Students-(1)

Link : https://www.learningforjustice.org/magazine/fall-2020/school-as-sanctuary

Reference

Collins, C. (2020, Fall). School as sanctuary. Teaching Tolerance, 65, 25–31. https://www.learningforjustice.org/magazine/fall-2020/school-as-sanctuary

Reference:

^{Tamez-Robledo, N (2024, June 14). Undocumented high school students are now the ‘post-DACA generation. EdSurge. https://www.edsurge.com/news/2023-06-14-undocumented-high-school-students-are-now-the-post-daca-generation#:~:text=By%20Nadia%20Tamez%2DRobledo%20Jun%2014%2C%202023&text=This%20year%20marks%20the%20first,immigrant%20advocacy%20group%20FWD.us}

• The decision, based on a case of undocumented immigrants versus the city of Tyler, struck down a Texas statute that denied state funds to school districts who allow for the education of students who were not “legally admitted” into the U.S.. The Supreme Court ruled that this statute violated the Equal Protection Clause of the Fourteenth Amendment. It stressed the importance of not punishing the children of immigrants who had no choice or control of their path by withholding educational opportunities. 

• Counselors will interact with undocumented students or students with undocumented family members and need to be aware of the issues faced by this population

• Counselors should provide a safe environment for undocumented students to ask questions and resolve issues without fear. 

• Counselors can not ask a student about their immigration status or require documentation that would show it.

Link to full text: https://supreme.justia.com/cases/federal/us/457/202/#tab-opinion-1954579

References:

^{Court Plyler v. Doe, 457 U.S. 202 (1982). https://supreme.justia.com/cases/federal/us/457/202/#tab-opinion-1954579}

^{Teach Democracy (2024) Education and the 14th Amendment https://teachdemocracy.org/online-lessons/bill-of-rights-in-action/bria-7-4-c#:~:text=While%20education%20may%20not%20be,denied%20equal%20access%20to%20schooling.}

• Provides a two year period of temporary protection from deportation and the ability to work for undocumented students who immigrated to the U.S. as minors. Students can apply for a social security number and access certain benefits such as in-state college tuition, but it is not a path towards citizenship.

• Even though  less students can benefit from DACA, it is important to understand eligibility. Students must have come to the US before their 16th birthday and have lived here since June 200, and be under the age of 31 as of June 15, 2012. Students must be currently in school, high school graduates and be law-abiding. 

• As a counselor, it is good to know the status of DACA revisions and the Development, Relief and Education for Alien Minors (DREAM) Act which seeks to replace DACA to provide a pathway to legal status for dreamers (kids whose parents brought them into the United States illegally). This legislation has not been able to pass through the legislature but is constantly being revised.

Text Link: https://www.uscis.gov/archive/2014-executive-actions-on-immigration#1

References:

^{KFF (2023, April 13). Key facts on Deferred Action for Childhood Arrivals (DACA).https://www.kff.org/racial-equity-and-health-policy/fact-sheet/key-facts-on-deferred-action-for-childhood-arrivals-daca/#:~:text=DACA%20was%20originally%20established%20via,for%20renewable%20two%2Dyear%20periods.} 

^{USCIS (n.d). Consideration of Deferred Action for Childhood Arrivals (DACA). ttps://www.uscis.gov/DACA}

^{Copy of the Text: US Citizen and Immigration Services.(2014) Executive actions on immigration. https://www.uscis.gov/archive/2014-executive-actions-on-immigration#1}

• Schools need permission from parents to release their student’s educational records. At age 18, the privacy rights to the student's records transfer to that student. 

• Schools can not disclose a student’s immigration status without the permission of parents.

• Notable exceptions listed in 34 C.F.R §99 for student information disclosure include health or safety issues, if there is a criminal investigation or if a subpoena is issued. Student records may be transferred to other schools, used for financial aid purposes, or provided to juvenile justice system authorities.

• Schools are considered sensitive areas (unless there are dangerous situations) and will not be patrolled for undocumented persons. 

• Directory information can be released by schools as long as they give parents enough time to opt-out. 

Link : https://studentprivacy.ed.gov/ferpa

References: 

Department of Education. (August 25, 2021). Family Educational Rights and Privacy Act. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

The Family Educational Rights and Privacy Act of 1974.(20 U.S.C. § 1232g; 34 CFR Part 99).

• Students must have lived in Texas 3 years prior to high school graduation and sign an affidavit of their intention to apply for legal status as soon as they are eligible.

• Senate Bill 1528 (SB 1528) is an improvement of the Texas Dream Act(2001) which allowed undocumented students the chance to apply for in-state tuition and state financial aid. 

• Although undocumented students can not apply for federal financial aid, they can apply for Texas State financial aid using the Texas Application for Financial Student Aid.

Text Link: https://capitol.texas.gov/tlodocs/79R/billtext/html/SB01528F.HTM

References:

Tex. Educ. Code §54.052. Determination of resident status.

Texas Higher Education Coordinating Board. (April 2007) A Higher education brief residency and in-state tuition. https://www.sos.state.tx.us/border/forms/reports-07/thecb-april2007.pdf

For example the policy issued by the Katy ISD School Board in 2023 states, “A district shall release student records in compliance with a judicial order, or pursuant to any lawfully issued subpoena, additional notice to the parent by the educational agency or institution is not required".

This section on student confidentiality also defines what are considered student records. Some data such as personal and family data, social adjustment ratings, records of school counselor conferences with the student, copies of correspondence with the parents, and any other records that may contribute to an understanding of the student.

Text Link: (https://pol.tasb.org/PolicyOnline/PolicyDetails?key=594&code=FL#legalTabContent

Reference:

Katy ISD Board Policy Manual ( Nov. 6, 2023). FL- Student Records. (https://pol.tasb.org/PolicyOnline/PolicyDetails?key=594&code=FL#legalTabContent

Link:

https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#:~:text=School%20counselors%3A,their%20identity%20and%20psychosocial%20development.

^{Reference and Code of Ethics:}

^{ASCA (2022). ASCA (2022). American School Counselor Code of Ethical Standards. Alexandria, VA: Author.}

^{https://www.schoolcounselor.org/About-School-Counseling/Ethical-Responsibilities/ASCA-Ethical-Standards-for-School-Counselors-(1)#:~:text=School%20counselors%3A,their%20identity%20and%20psychosocial%20development.}

Link to Amazon (or available at ASU library): https://read.amazon.com/kp/embed?asin=B0943FH112&preview=newtab&linkCode=kpe&ref_=cm_sw_r_kb_dp_CC6YE02RS52TQS49HEA5

References

Cunningham, G. (2021). What educators need to know about immigration law: Supporting immigrant, undocumented, and refugee students. Teachers College Press.

• Ensure staff understands that undocumented students have the right to attend school and must be treated identical to citizens in their efforts to pursue and education.

• Staff should maintain confidentiality for undocumented students by complying to FERPA laws. Students must be informed that legal status is confidential information; and confidentiality will be maintained unless a student is harmful to self or others.

• Schools are considered safe places where students can not be picked up for deportation. Schools should plan in advance who and how to respond to inquiries from justice and immigration officials to avoid accidental release of information.

• Communicate with students and families in order to establish a trusting environment through the use of translators, education about immigration laws, and provide resource lists with nonprofits who can assist families.

• Train staff on current immigration concepts and law and how this affects undocumented students. Provide cultural training in order to be sensitive to different beliefs and cultures and to instill trust in school officials.

• Ensure that documents needed for enrollment and other activities, such as athletic participation, are ones that are obtainable for undocumented parents and that the school is not putting up additional barriers to participation.

• Be aware of the requirements for DACA and how to help undocumented students plan and pay for college. Keep up to date on the current legal status of school immigration law in order to help students navigate the process for a higher education.