Betsy DeVos

Education Secretary Betsy DeVos Did Not Say Schools Should Call ICE on Immigrant Kids

But did you know that Obama's ICE arrested students at bus stops? Our immigration policy is a bipartisan nightmare.


Gage Skidmore, Wikimedia

Education Secretary Betsy DeVos spoke with some members of Congress last week. Rep. Adriano Espaillat (D–N.Y.) asked whether she thought public schools should call Immigration and Customs Enforcement (ICE) agents if they suspect students of being illegal immigrants. DeVos' reply, via The Huffington Post:

"I think that's a school decision, it's a local community decision," DeVos told the House Education and the Workforce Committee. "I refer to the fact that we have laws and we also are compassionate. I urge this body to do its job and address and clarify where there is confusion around this."

That response led to the HuffPost headline "Betsy DeVos Stirs Uproar By Saying Schools Can Call ICE On Undocumented Kids: The education secretary said it's a local decision, but she didn't argue against it." By the time GQ reported on the issue just three days later, its headline declared, "Betsy DeVos Says Schools Should Call ICE on Undocumented Students" (emphasis added). That's even though GQ's Luke Darby writes:

DeVos is right, we do have laws—laws that forbid exactly what she's directing schools to do. In 1982, the Supreme Court ruled in Plyler v. Doe that schools cannot deny children their right to a free education based on their immigration status.

So there's actually no justification for the idea that DeVos and, by extension, the Trump administration is actively calling for sweeps and raids on public schools or even that she's partial to the idea.

Two things are worth noting. First, DeVos has revealed herself since her confirmation hearings to be untroubled by the finer points of education policy. That's not good. Second, she is targeted so continuously by critics of the Trump administration because she supports school choice programs that allow K-12 students to exit traditional public schools. The federal government is strictly limited in how much choice it can enable, but it's very good that she supports the concept.

But since this is the Age of Trump, where all public discourse is conducted at best in the spirit of truthiness, it's worth digging into what ICE policy is toward school sweeps. The answer is mixed and muddled but it also illuminates a truth very few people want to acknowledge: Our immigration policies, especially regarding kids, are a bipartisan nightmare. During the Obama years, ICE didn't randomly sweep schools looking for undocumented foreign kids, but it did pick them up from time to time at bus stops.

The 1982 Supreme Court decision Plyer v. Doe is little-discussed but hugely important. In response to a Texas law that would have either charged the children of illegal immigrants $1,000 per kid to attend local public schools or banned their attendance altogether, the Court ruled that a school district must accept all children who live within its borders for K-12 education without concern for citizenship status. Though this was a 5–4 decision, both sides agreed that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful." The decision settled a thorny issue, but it also opened up a different can of worms. Nationwide, schools spend as much as $20,000 per student, with the national average coming in at $11,392. Typically, K-12 spending is the single biggest outlay that gets counted against illegal immigrants whenever restrictionists start talking dollars and cents.

Yet ICE and Customs and Border Protection (CBP) have a policy against most school sweeps. As the American Civil Liberties Union summarizes it, the two agencies

will not engage in immigration enforcement in sensitive locations like schools absent prior approval by a supervisor or exigent circumstances. This policy has recently been reaffirmed by the Department of Homeland Security. This means that ICE and CBP generally will not arrest, interview, search, or surveil a person for immigration enforcement purposes while at a school, a known school bus stop, or an educational activity.

From ICE's own policy page:

Pursuant to ICE policy, enforcement actions are not to occur at or be focused on sensitive locations such as schools, places of worship, unless;

  1. exigent circumstances exist;
  2. other law enforcement actions have led officers to a sensitive location, or
  3. prior approval is obtained from a designated supervisory official.

The policy is intended to guide ICE officers and agents' actions when enforcing federal law at or focused on sensitive locations, to enhance the public understanding and trust, and to ensure that people seeking to participate in activities or utilize services provided at any sensitive location are free to do so, without fear or hesitation.

That isn't to say that ICE never picks up kids at schools or closely related locations (such as school bus stops) that meet the agency's definition of a "sensitive location." In 2016, for instance, ThinkProgress described agents picking up an 18-year-old high school student at his bus stop in North Carolina. That happened on Barack Obama's watch.

In all, ThinkProgress reported over 300 students were picked up in a coordinated raid that

ignited controversy over the Obama administration's longstanding struggle between enforcing border security and allowing undocumented immigrants with roots in the country to continue living without the fear of deportation.

A spokesman for ICE told the Charlotte Observer that that agency doesn't do wide-ranging sweeps or dragnets:

The targets are more specific, he says: All are "recent arrivals" who came into the country after Jan. 1, 2014; they are legally adults who lost in court and received deportation orders.

"When we showed up, it should not have been a surprise[.]"

What's more, the location where the specific student was picked up was, er, bus-stop-adjacent:

"People will tell you that kids looked out of the school bus and saw it happening, but what they leave out is that the bus was driving down the road at the time (the arrest) was taking place," said [the spokesman]. "It's being portrayed as if it happened directly at the bus stop."

To bring it back to DeVos's comments, ICE isn't conducting sweeps at schools or other sensitive locations populated by K-12 students. Though it will go after specific individuals at or near those locations. And when it does, it will be doing exactly what the Obama administration was doing.

As an pro-immigrant libertarian, I don't find any of that comforting. But I think most rational people would agree it's miles away from "Betsy DeVos Says Schools Should Call ICE on Undocumented Students."

Until we can begin to acknowledge the awful immigration continuities between Obama (who forcibly removed far more immigrants than either Bill Clinton or George W. Bush) and Trump (who is doing his damnedest to beat Obama), we won't be able to grapple with policies that a majority of Americans find distasteful and immoral. The nearly 1,500 unaccompanied minors "lost" by the Department of Health and Human Services showed up during Obama's tenure. Even the Trump administration's newly announced policy to separate families caught at the border dates back to 2005, around the time that George W. Bush was pushing for supposedly humane immigration reform. Large majorities of Americans believe that immigrants under the age of 18 who were brought here illegally by their parents ("Dreamers") should be allowed to stay. In polls, illegal immigration ranks far behind other concerns, such as health care, guns, and government spending.

If the debate over immigration—or foreign policy, or government spending, or anything—remains little more than an exercise in partisan point-making, nothing good can and will happen.