STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES
ATTORNEY GENERAL

NEW YORK STATE EDUCATION DEPARTMENT
THE UNIVERSITY OF THE STATE OF NEW YORK
MARYELLEN ELIA
COMMISSIONER OF EDUCATION
PRESIDENT OF THE UNIVERSITY OF THE STATE OF NEW YORK

August 29, 2019

In February 2017, the New York State Office of the Attorney General (“OAG”) and the
New York State Education Department (“SED”) issued guidance on school districts’ duty to
safeguard the rights of all students—including undocumented students—to receive a public
education without fear of intervention by federal immigration officials.1 Following the issuance
of that guidance, our agencies have received questions concerning the possibility that school
resource officers (“SROs”) might seek to interview students or obtain access to student records in
order to convey information about their (or their families’) immigration status to representatives
of U.S. Immigration and Customs Enforcement (“ICE”). We write to provide supplementary
guidance on this issue.
SROs are responsible for preventing crime and ensuring safety in primary and secondary
schools. Whether they are employed by a local police department, a sheriff’s office, or a school
district, SROs work with school administrators to preserve a safe learning environment for
students, teachers, and staff.2 As set forth in detail below, 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 (i) detaining or interrogating students, and (ii) maintaining the privacy of student
education records and information.
In past guidance, our agencies have made clear that school districts must ensure that all
students within the compulsory school age attend upon full-time instruction, and that
undocumented children, like U.S. citizen children, have the right to attend school full-time as long

See MaryEllen Elia and Eric T. Schneiderman, “Dear Colleague” Letter, New York State Education
Department and New York State Office of the Attorney General (Feb. 27, 2017), available at
https://ag.ny.gov/sites/default/files/2017-02-15_oag-sed_letter_re_ice_2.25.17_final.pdf.
1

See U.S. Dep’t of Justice, Supporting Safe Schools: What is a School Resource Officer?,
https://cops.usdoj.gov/supportingsafeschools.
2

 as they meet the age and residency requirements established by state law.3 Actions or policies,
even facially neutral ones, that significantly deter undocumented students from receiving such a
full-time education can expose school districts to liability.4 In the event that a school district
permits SROs on its school campuses, the district is similarly responsible for ensuring that those
SROs do not significantly deter the rights of students to receive an education. To clarify our
February 2017 guidance as it applies to SROs, we again address the two topics of detaining/
interrogating students and accessing student records or information.
An SRO’s detention or interrogation of a student in order to determine the student’s
immigration status could expose a school district to liability. As stated in our prior guidance
letter, the New York Family Court Act (“NYFCA”) and other laws generally prevent law
enforcement officers from removing a student from school property or interrogating a student
without the consent of the student’s parent or parental relation. Accordingly, in the event that ICE
or other federal immigration officials appear at a school seeking access to a student, our agencies
recommend that a school district advise all staff to contact the superintendent and the district’s
attorney for assistance in meeting its duties under the New York Education Law, Plyler, and
NYFCA.
The same principle governs SROs working on school campuses. As you may be aware,
some police and sheriff’s departments have agreements with ICE or other federal immigration
agencies to share information concerning the immigration status of individuals their staff
encounter. Our agencies caution districts that SROs should not detain students or otherwise
interrogate them for the purpose of determining the students’ (or their families’) immigration
status, as such status is irrelevant to the school safety objectives an SRO is tasked with ensuring.
Such questioning by an SRO – or the absence of a district policy prohibiting such questioning –
could subject the district to liability for significantly deterring a student’s right to obtain an
education, as set forth above. Furthermore, if such questioning were predicated upon a student’s
perceived race, nationality, color, or native language, an SRO’s action could also subject a district
to liability under other civil rights laws.5

See supra note 1; see also Cosimo Tangorra, Jr., “Dear Colleague” Letter, New York State Education
Department (Sept. 10, 2014), available at
http://www.p12.nysed.gov/sss/documents/EducationalServicesforRecentlyArrivedUnaccompaniedChildre
n.pdf.
3

4

See Hispanic Interest Coalition v. Gov. of Ala., 691 F.3d 1236, 1247 (11th Cir. 2012) (holding
unconstitutional a facially neutral policy that “significantly deters undocumented children from enrolling
in and attending school”) (citing Plyler v. Doe, 457 U.S. 202 (1982) (establishing a constitutional right to
a free public education for undocumented and non-citizen students, and holding that school districts may
not deny students a free public education on the basis of their undocumented or non-citizen status, or that
of their parents or guardians)); see also Appeal of Plata, 40 Ed. Dep’t Rep. 552, Decision No. 14,555.
5

See, e.g., Title VI, Civil Rights Act of 1964, Pub. L. No. 88-3520, 78 Stat. 252 (1964) (codified as amended
at 42 U.S.C. § 2000d).

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 Furthermore, the Fourth Amendment to the U.S. Constitution imposes limitations on an
SRO’s ability to question and detain students. An SRO must have, at minimum, reasonable
suspicion that the student has violated a school policy or committed an illegal act that threatens
the “special needs of school safety” to warrant such detaining and questioning.6 In light of the
constitutional right of undocumented students to obtain a public education, a student’s immigration
status alone could not amount to a violation of school policy and has no bearing upon school safety.
Accordingly, such detention/interrogation by an SRO could expose a school district to liability for
a failure to train and supervise an SRO who engages in unconstitutional practices. This risk of
exposure may exists even if the SRO is formally employed by a police or sheriff’s department, and
not directly by the district.7
Pursuant to the newly added subdivision 10 of Education Law 2801-a, if a school district
uses any SRO on campus, such use must be formalized through a “written contract or formal
memorandum of understanding” between the district and the local law enforcement department.8
For the reasons set forth above, our agencies strongly recommend that districts incorporate into
those contracts or MOUs policies and procedures to prohibit SROs from detaining or questioning
students about their immigration status.
An SRO’s access or re-disclosure of a student’s educational records could jeopardize
a school’s federal funding. Our prior guidance letter advised that, should a school district receive
a request from federal immigration officials to access student records or information contained
therein, the district should immediately consult with its attorneys in order to ensure compliance
with the Family Educational Rights and Privacy Act (“FERPA”). FERPA generally prohibits
6

See U.S. CONST. amend. IV; see also In re Gregory M., 82 N.Y.2d 888, 594 (1993) (holding that the
lower “reasonable suspicion” standard for searching and questioning students only applies where the search
is “conducted by school officials for the special needs of school security and not for a criminal investigative
purpose”); see also N.Y.S.E.D. Counsel’s Opinion 148 (Feb. 23, 1965) (“The school particularly does not
have custody of pupils for the purpose of authorizing law enforcement officers or other third parties to
interrogate pupils or to remove them from the premises for any purposes whatever.”).
7

See, e.g., Gonzelez v. Albuquerque Pub. Sch., No. CIV 05-580 JB/WPL, 2006 WL 1305032, at *3 (D.N.M.
Jan. 17, 2006) (denying defendants’ motion to dismiss and holding that an SRO’s questioning
undocumented students about their immigration status could “interfere[] with the students’ access to
education”). The Albuquerque Public School District ultimately settled with the students for monetary
damages and significant revisions to school policies and procedures. See also K.W.P. v. Kansas City Public
Schools, 296 F. Supp.3d 1111, 1120-21 (W.D. Miss. 2017) (denying summary judgment on a student’s
claim that school officials failed to properly train and supervise an SRO who detained the student in
violation of his Fourth Amendment rights); cf. Benacquista v. Spratt, 217 F. Supp. 3d 588, 601-02
(N.D.N.Y. 2016) (denying a motion to dismiss a student’s claim that the school district failed to act or
supervise an SRO).
8

See Educ. Law § 2801-a(10). At its July 2019 meeting, the Board of Regents adopted regulatory
amendments consistent with the changes to Section 2801-a(10) on an emergency basis. See 8 N.Y.C.R.R.
§ 155.17(c)(xi)(a) (available at http://www.regents.nysed.gov/common/regents/files/719p12a2.pdf).
Additionally, any such contract or memorandum of understanding must “clearly delegate the role of school
discipline to the school administration.” Educ. Law § 2801-a(10); see also 8 N.Y.C.R.R. § 155.17(c)(xi)(a).

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 educational agencies and institutions—i.e., school districts and their schools—that receive federal
funds from releasing personally identifiable information (“PII”) from a student’s educational
record without written consent from a parent/eligible student over the age of eighteen.9
The same general principles apply in the event that an SRO, operating on a school campus,
seeks access to a student’s educational records for the purpose of determining the student’s
immigration status. Unlike federal immigration officials, an SRO may—under certain
circumstances—be considered a school official who is permitted access to student educational
records and PII, without student/parental consent, pursuant to FERPA. In order to qualify as such
a school official, however, an SRO must: (i) perform an institutional service for which the school
or district would otherwise use employees (e.g., ensuring school safety); (ii) be under the “direct
control” of the school or district regarding the use and maintenance of education records—e.g.,
through a written contract or MOU—that establishes data use restrictions and protection
requirements; (iii) be subject to FERPA’s use and re-disclosure requirements limiting the use of
student PII to the purpose for which the disclosure was made—i.e., to promote school safety—and
prohibiting re-disclosure of such PII to others; and (iv) meet the criteria specified in the school or
district’s annual notification of FERPA rights for being school officials.10
Significantly, SROs who qualify as school officials may only use PII for the legitimate
educational purpose for which the information was sought—that is, to promote school safety and
the physical security of students. Further, an “SRO who is acting as a school official under FERPA
may not re-disclose, without appropriate consent, PII from education records to outside parties,
including other employees of his or her police department, who are not acting as school officials,”
unless such re-disclosure falls into a narrow FERPA exemption.11 In light of the constitutional
right of all students—including undocumented students—to obtain a public education, an SRO’s
request to access educational records to determine a student’s immigration status would not
constitute a legitimate educational purpose authorizing such access. Similarly, an SRO who
managed to obtain such student information is not authorized to re-disclose that information to
other law enforcement officers or federal immigration officials.
As noted above, districts that employ, contract with, or otherwise retain SROs to operate
on their campuses, must enter written contracts or MOUs with the local law enforcement
departments from which those SROs originate. Our agencies strongly encourage districts to
incorporate into such contracts or MOUs restrictions on accessing and re-disclosing student PII in
keeping with the principles set forth above. Districts should also ensure that their annual
notification of FERPA rights to parents and communities clearly discloses (i) the district’s
9

See 20 U.S.C. §§ 1232g(b)(2)(A), 1232g(d).

See 34 C.F.R. § 99.31(a)(1)(i); see also U.S. Dep’t of Education, Privacy Technical Assistance Center,
School Resource Officers, School Law Enforcement Units, and the Family Educational Rights and
Privacy Act (FERPA) (“SROs and FERPA”), Question 15, at pp. 11-12, available at:
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/SRO_FAQs_2-5-19_0.pdf.
10

11

See id., SROs and FERPA, at pp. 11-12.

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 directory information policy, to permit parental opt-out, and (ii) which categories of individuals
operating on school campuses are generally considered school officials with legitimate educational
interests in education records.
SED and OAG are committed to ensuring that all students in New York enjoy a safe and
supportive learning environment, regardless of their national origin or immigration status. SROs
can perform an important role in maintaining this safe environment. Our agencies advise each
school district to develop clear training protocols and supervisory policies in keeping with the
principles set forth in this letter and our prior joint guidance, and to incorporate such policies into
the required contracts or MOUs governing the activities of any SROs working at a district’s school
campuses. Thank you again for your dedication and hard work to support students, families and
communities in our state.

Sincerely,

Commissioner of Education
President of the University of the State of New York

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Letitia A. James
Attorney General