Vermont Legislature SmartTranscripts:

[Joshua Dobrovich (Member)]: Alright, you're live.

[Peter Conlon (Chair)]: Welcome back to House Education Tuesday, April 7. We are continuing our discussion on S two twenty seven. This is the bill that would require policy from the AOE regarding access for law enforcement to people within a school building. Gonna get a little more sort of context here from the attorney general's office. Very happy to have it. Very happy to have you here to tell us what we need to know. So I'm gonna just turn it right over to you.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Good afternoon. Thank you for inviting me. My name again is Julio Thompson. I am assistant attorney general and co director of the civil rights unit. My experience with the area is dealing or touching upon S-two 27, which has to do with state and local interactions with immigration authorities probably dates in the attorney general office probably back to 2013 when then Attorney General Sorrell had issued a model policy for law enforcement that set or tried to set consistent with I think community expectations, boundaries for state and local officials and their interactions with immigration authorities and their collection and sharing of information relating to immigration status. I also was director of the civil rights unit during the first Trump administration, our office at that time had either litigated or filed friend of the court briefs, also called amicus briefs, on various topics relating to that interplay between federal and state governments, dual sovereign system that we have. And so I come at it from that perspective with the familiarity with some of the statutes. There's a couple of federal statutes that are cited in S-two 27. I'll be happy to talk about those as well and how courts in our circuit that governs Vermont have interpreted them. The first place I want to start off is to say that as you're aware, there are several bills in the legislature this session that deal with Vermont and immigration enforcement. Just want to lay down and maybe re emphasize some points that have been made by legislative council and perhaps the sponsors. One is, and these may seem self evident, but they really frame everything that we're going to talk about, I think, on the bill. One is that immigration enforcement is exclusively a federal function. The constitution grants that authority to Congress to regulate immigration to say, to govern the standards for entry, remaining in working with authorization in and achieving, you know, waffle status. And there's a variety of those from temporary visa holders for students or workers to full blown citizenship. States have no authority to make immigration arrests or assist in any way in the civil process. And I'll talk about civil and criminal in a second, but in the civil immigration process, end of the civil immigration process is what the statutes call removal, although most of us use deportation, which under the civil immigration laws isn't viewed as a punishment, but rather a remedy for The United States. Someone's not authorized to be here and The United States chooses the remedy of removing them rather than incarcerating them. There are some misconceptions about the interplay between state and federal officials on immigration enforcement. It's certainly true that immigration authorities would like to have state and local participation or support of immigration activities, but the law is crystal clear that state and local governments are not required to participate in that federal enforcement. There are lots of laws that are exclusively the province of federal officials. Another example might be to deal with, let's say, nuclear regulation, enforcement of federal laws regarding the operation, citing and disposal of radioactive materials. There have been cases long ago where there was a question about whether the federal government could require states to participate in federal nuclear enforcement and the Supreme Court answer that in the negative. No, you cannot. You cannot in the court's terms, they use the phrase commandeer. You cannot commandeer or enlist state and local officials to carry out federal functions. That's part of the separation that we have at the state and federal level. So when it comes to immigration enforcement, if officials are requesting information because they just want to have the information, they don't have a judicial warrant, we'll talk about warrants in a few minutes. But if they just call up and ask, they encounter someone they want to know something or ask someone to hold on to somebody or tell us where somebody is. There's no requirement under the US constitution that the state or local governments honor that. It's all a matter of consent as to whether they participate and the extent to which they participate. Vermont historically hasn't said much about the topic until 2017. In 2017, there was a bill at '79, it was the first bill the new governor signed that session, enacted as Act V that regulated when Vermont agencies and local agencies could collect information that's personally identifiable about Vermonters and when they could share that with the federal government. The context for that law which has since been codified and it's one of the statutes that I provided. The context for that is that during the twenty sixteen presidential campaign, one of the candidates, ultimately the successful candidate, had in part campaigned on the idea of creating a so called Muslim registry. And the idea was that it was going to require the states and local governments to turn over all the names of people based on their religion and or national origin. And Vermont was the first state out of the gate to say that we're not going to participate in that registry. Federal law doesn't require us to do it. And we're going to tell our state and local governments not to cooperate. It also reaffirmed a practice in Vermont, which is that Vermont had never signed an agreement to partner with DHS or immigration authorities to participate in immigration arrests and participate in civil immigration proceedings. Federal law does allow the government to enter into those agreements, kind of deputize state and local governments, and there are such agreements in different parts of the country. And in 2017, a bill that was, I think unanimously passed in the Senate, and I think maybe only drew only a couple of dissenting votes in the House that Vermont said, well, we're not going to do that here in Vermont. So we have that context, and what underlay that law in the findings of the law was that if people believe that their state and local governments are participating in immigration enforcement or other ways, participating in the creation of some sort of massive database about people based on their religion or other personal characteristics, then they may be less willing to go to school, call the police, avail themselves of healthcare or other services if they think that somehow their name is going to end up in a database in Washington DC where heaven knows what will happen to it. And so the purpose of the law at that time was to allay those fears and to basically keep Vermont the way it had always been, which is we regard privacy very seriously here in Vermont. And S227 sort of is consistent with that. It doesn't purport to tell federal immigration officers how to do anything. It's not directed at them. It's directed at state and local officials. The attorney general is one of those state officials that's subject to a command under this bill, is to prepare and disseminate guidances and share other materials with input from the agency of education and others. And it's directive at school boards, school districts, superintendents and the like. And so in terms of whether this is preempted or conflicts with federal law relative to other bills that are, you know, that have been proposed around the country on different subjects, This is a familiar territory of state sovereignty where the state gets to regulate how its state and local employees behave when they're doing their jobs as defined by the state and the communities. And so that's a is generally like a very safe area to regulate as it goes. And it's clear from S-two 27 that there's a similar rationale that underlies the bill which is that people are fearful if there is participation facilitating immigration enforcement at the school ground. People won't show up at school absenteeism. And there's lots of empirical evidence from non Vermont sources where there have been ICE targeting of schools, where there have been widespread absentee rates not only for people who might be new to their state and their country, but also people who are US citizens, but who may have immigrants or have recent ancestry, maybe they recently become US citizens. They also tend not to show up at school because immigration law is very complex. A lot of people historically have just erred on the side of caution. I don't want to be around, I want my kid to be around while that enforcement is going on. So there's an empirical, there's a factual grounding, I think that underlies the law. There's another interest here that I haven't heard mentioned thus far. I know today was introduction day, maybe you'll hear it from other contexts. But there are other reasons why immigration status would be among those characteristics about people that you would want to preserve personal privacy. In the civil rights unit, part of our daily bread is enforcing Vermont state laws prohibiting employment discrimination. There are students in schools at the high school level who are part of the workforce and so disclosures or misconceptions or misreporting of a person's immigration status may in some instances set the table for a discrimination in employment. Typically based on national origin, but immigration status may be part of that. Vermont's laws, make no mistake, protect all people in the right to have fair employment. And while you do have to have authorization to work discrimination because you're from one part of the world or another is unlawful and that's part of our enforcement practice. So from a practical standpoint, we see this as serving students as well in workforce. Another aspect of the work that we do in the civil rights unit that's again, maybe not daily practice fortunately, but we also enforce part of Vermont's hate crime laws that prohibit discrimination and committing a crime or attempting to to commit a crime based on where a person's from, among other things, their color as well. And so, again, sharing that information that maybe a student or family wants to keep private, keeping it private is a way to add an additional layer of protection from them. Our office does not enforce the state bullying laws, that's Department of Education hand in hand with the Human Rights Commission, but I think you'll hear the same thing, which is that particularly I would say within the last ten years harassment, bullying, however you want to call it including physical assaults, criminal threats, and stalking has the following students based on their actual perceived national origin or their immigration status. So even if immigration authorities never, as their own decision, never set foot anywhere near a Vermont school. I think the confidentiality provisions here, I think still serve Vermont, its students and families from those other types of discrimination. And again, we have very up close experience with discrimination on the job. We enforce the anti discrimination laws for every employer in the state of Vermont except the state of Vermont. That's the Human Rights Commission's territory. So we have extensive practical experience in that area and there's no shortage of imagination for people who want to make other people feel less than or miserable. And so any additional protections, I think, is useful. So what I wanted to do was talk a little bit about a few provisions of the law and particularly talk about these two federal statutes, because there is sort of what I would loosely call a savings clause here that says that whatever policies are created or whatever standards are set forth in the law, that they won't run afoul of the, I think what's in the bill called the lawful requirements of these two federal statutes. And that may be a place where if there's an opportunity to place the laws on the board, we could do that. Or I could just talk about the chair's preference. Viti, I guess in

[Peter Conlon (Chair)]: terms of what we sort of need to know more about as we walk through this, first of all, is the AG's office okay with what it is being asked of in here, which

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I think is nothing more than working with the AOE to provide resources. Well, I think there's a little bit more than that, which is that it does place statutory limits on disclosures irrespective of what the policy say, the policy has to conform to the law. And so I think as you know, if you want to talk about various provisions, have various comments or ways. If the committee wants to move the bill forward, we think there are ways to fortify the bill to make sure that it's as rigorous as it could be if it's challenged.

[Peter Conlon (Chair)]: I think we would welcome those suggestions. It may not have to be today. Okay. Maybe more general knowledge, we got some time. Go ahead, Josh.

[Joshua Dobrovich (Member)]: Are you talking about the federal statutes subsection thirteen seventy three through sixteen forty four?

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: That's right. I would like to

[Joshua Dobrovich (Member)]: hear more. Sure. That's terrific.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: So as I said earlier, and these are two important statutes. And I would mention to put it in context, when I talked about that 2017 law regarding the so called muscle registry, that law refers to these two statutes and says something it's directed in that law towards law enforcement agencies, which at the time were the ones that would be most in contact with people who might be disclosing their immigration status. Those laws are still on the books and they are relevant to any law that governs or can be relevant to any law that governs communications with federal officials. So I started out earlier by saying that state and local government officials are not required ever to cooperate with ICE if they ask for information, put aside court orders and subpoenas, but if they just voluntarily ask for information, like a letter to the superintendent tells how many students you have and what their status is. There's no requirement that they provide that information. These two federal laws, date back to 1996, are a little bit different. They do not command state and local officials from disclosing information regarding immigration status. What they is some or what they purport to do is something a little different, which is that they tell state and local governments, you can't restrict your different political subdivisions, your state agencies from sharing information about immigration status if they want to.

[Peter Conlon (Chair)]: So it

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: prohibits it's very lawyerly, but they prohibit a restriction on voluntary communications. And that's kind of hard to conceptualize. Let me put the law into context when it was enacted. So let's go back in time. This is President Clinton, Speaker of the House is Newt Gingrich. At the time in the mid-90s, there was a Well Formed Reform Act, so called, and also reforms to the Immigration Act. And at that time, it was then a relatively new term, there were parts of the country that called themselves sanctuary jurisdictions, sanctuary cities, that learned that their local law enforcement were, so let's say a county sheriff, would arrest somebody and maybe would believe the person was not here, it wasn't documented. And so at the time, what they would do as a matter of practice back in the 1990s was they would call the predecessor of ICE, the Immigration and Naturalization Service or INS. They would call INS and say, hey, I have John Doe in custody. He's got this ID. Is this person here lawfully or not? And so it was state and local governments that were reaching out to the federal government rather than the reverse. And so there were concerns, so there in some cities enacted local laws that said, dear sheriffs, dear police chiefs, don't call INS, don't collect the information and don't call them. And Congress responding to that, and again, it was just a matter of who held the majority in Congress at the time, They wanted to stop local governments from prohibiting a police chief from voluntarily deciding if he wanted to call INS or not, or a sheriff from voluntarily calling ICE for DHS or its predecessor. Again, it was INS at the time. And so it was really focused on voluntary disclosures and it said you can't tell them not to do it if they don't want to do it. It's true that they can decide not to do it, but you can, as a matter of law, say nobody can do that voluntarily. And so that was a law, and it was more or less ignored after it was enacted. The law really, there's no enforcement provision for either of those laws. It really only surfaced, think in the last, I would say ten years or so during the last year of the Obama administration, certain federal grants started conditioning federal law enforcement grants on complying with those particular statutes. And starting in 2017, there was a lot of legal debate and litigation in different parts of the country about whether Congress could actually pass a law governing what state or local employees could say. And so that's how the law was enacted by Congress. I think it was roughly a couple of weeks after Congress or the President Clinton signed both laws, that the city of New York at the time sued The United States in federal court saying that those acts of Congress interfered with New York's sovereign ability to regulate how its employees behave, or this was a sovereign city of New York, I should say, which is a subdivision of the state. And so they challenged it on tenth Amendment grounds. The tenth Amendment, remember tells that the states have all the powers that aren't expressly given to the government and the constitution. And they were saying, look, the city runs police department, we want health services. We have a policy because we want people to interact with the state, with those city services that we're not gonna collect that information and we're not going to give it to federal immigration authorities. And so they challenged it and it went up to the Second Circuit Court of Appeals. And the second circuit asked the policy is drafted, said immigration status, you can't share it with federal authorities. On its face, all city employees could share that information with anyone else in the world, just not the immigration authorities. And so while the case was set for argument, second circuit court of appeals which governs Vermont, New York, and Connecticut, they asked the city of New York, is immigration status protected from disclosure from anyone else in the world or is it only disclosure towards federal immigration authorities? And if so, we'd like to take a look at those policies and then city of New York at the time said, the ordinance is the ordinance, we want you to rule on the ordinance and not look at anything else. And the second circuit said, well, it's not a general privacy rule because again, you can tell anyone else, you can tell the media, you can tell the FBI, you can tell anyone in the world someone's immigration status, but only federal immigration authorities, you can't do that. And they said that's not a state interest. The way that the court had defined it at the time, they said, it seems to be what you're saying New York is that you have a state interest in what the court described as passive resistance to private enforcement. And that's not a state interest. The court said it might be quite a different story if you had a general privacy policy regarding immigration status or other personal characteristics, because we could understand why people would not be willing to share that information with local officials for fear of it being disclosed to the world, but you don't have that policy. And so that would be of strong interest that you have city of New York, but that's not the policy you put in front of us, and so looking at this policy, we can't say the federal laws violate this policy. When I look at S. Two twenty seven, it looks like it's taken a page from the second circuit's decision because there is a provision about not disclosing immigration related information to any third party. So that unless required by law, there are certain laws if you're registering for like an exchange student program, you may have to maintain certain records, but in general, can't disclose it to the third world, which is something that the second circuit suggested in this case. It's decided in 1999, it's still good law that says that would be a legitimate state interest and those federal laws might not be able to prevent you from doing that. So I think a critical feature of the bill that's in the bill that I think to make sure it's as sound legally as possible would be to maintain that prohibition on third party disclosure and not narrow it to just immigration. That's the New York City playbook that was unsuccessful in 1999.

[Peter Conlon (Chair)]: And so how do we have it currently in the bill that's before us? Is it just immigration status?

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Well, are other information like national origin, sexual orientation status. And again, to me, to my eyes, what that is doing is recognizing that there's information about people that's generally private, that if disclosed without their consent unnecessarily could create challenges in their life, whether that's bullying, sexual orientation. Heaven knows there's lots of bullying everywhere on that status as well as others. So it's a general privacy rule. And while the second circuit in that case didn't have that kind of policy before it, it strongly suggested that that's a strong state interest. States do have an interest. The police power belongs to the states, for example, there's no federal police force. Health and safety are police powers, that's a legal term, not law enforcement term under the constitution. And so the general privacy provisions here, which are consistent with, but I think go beyond FERPA, I think are very helpful for the rule. And I think reflect the practical reality, which is that certain information people keep private for a reason. And it may be not even fear of harassment or other negative consequences, they just might want to keep their personal stuff personal, which I think is consistent with other laws. So a policy like this in the second circuit hasn't been tested against thirteen seventy three and sixteen forty four. There are very, very few cases on that. Other parts of the country that do not govern Vermont, a different circuit, federal circuit courts that surround us, including the first circuit, the third circuit, seventh, ninth circuit, tenth circuit, have viewed those federal laws just as unconstitutional flat out. They think that Congress can't tell state actors how to do their jobs. That's just like you can't tell the IRS what your office hours and the like or what the IRS could take and discuss. The other side of the zip code is they can't tell you that.

[Peter Conlon (Chair)]: I've got a specific question. So what we're talking about here is on page five, line 11. Nothing in this section is intended to prohibit or impede any school from complying with the lawful requirements of thirteen seventy three and sixteen forty four. Right?

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: That's Yeah, that's right.

[Peter Conlon (Chair)]: That's the main issue. So those provisions say you can voluntarily hand over information.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Well, statute says you can't. So this law seems to, in that court case where the court says you may be able to do this, our office has long referred to that part of the opinion as safe harbor, that it is safer for states to regulate a general privacy rule that sweeps in immigration status, but also sweeps in other things. So if the non disclosure is for purposes of student privacy, there's good arguments that that's constitutional in the circuit. If it were done for a different reason, like if some school declared, well, we're gonna have an additional policy, the purpose of which is to thwart federal enforcement, would that be the New York City playbook and that would be perhaps a lawful requirement of those laws not to permit that. It depends upon the purpose. And I think as written here, the bill has a general privacy purpose. It's not about toward immigration, it's about protecting students and their families.

[Unidentified Committee Member]: If I'm understanding correctly, so I'm looking, I forget, page three, line 20, because it doesn't say that you can't do it to federal immigration. So it made it broader. So it says that you are, we're involuntarily sharing, and that says with a third party.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Right.

[Unidentified Committee Member]: So since it says with a third party, instead of just saying with federal immigration.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: That's right. So, I mean, third party in this context would be someone who doesn't have a legal right to know. So you tell the newspaper, you tell your neighbor, you tell an employer, someone calls you for a reference, this person says they're a senior at your high school and then someone says, hey, by the way, this person should be grateful for any job and you find something terrible like that. So this would would prohibit all those kinds of disclosures. And treat it in the other way that you keep other information. It's generally not relevant to people. Employers have an independent duty to verify work authorization. The schools have no role on that. So that's the employer's job and not the school's role. So the breadth of that privacy protection, I think, is very critical and I think is very consistent with that City Of New York case. So when we were looking at the bill as it was originally introduced and as it's progressed in the Senate, we were looking at it with an eye towards the city of New York case. And it's a case that has been recently cited in a different context by the second circuit. It's still good law. And incidentally, postscript to the city of New York story is that the city of New York got the memo from the second circuit and drafted a broad privacy policy that encompasses much more than immigration status to recognize that there are other facts about people that they don't want to disclose to the world and that law hasn't since been legally challenged and so it's been on the books for the better part of twenty years. And so I think that's an element of the law and the citation of those statutes, think is important. City of New York case sort of suggests an exception where the state may have an interest. There are other ones, but they don't really have to do with schools. Thank you. We had

[Peter Conlon (Chair)]: the SBA's point out to us that we may have a conflict here. So if we look at page five and we go up to the line eight, the school superintendent is the sole individual to approve an agreement required by federal or state law. But we also have a state statute that says the governor is the sole authority.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Yeah. I'll have that. My version of the bill is annotated, so the pagination is done.

[Peter Conlon (Chair)]: Oh, okay.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: So do you have a section number?

[Peter Conlon (Chair)]: It is subsection e. Okay. Thank you. Under I get my sub dissections and subdivisions mixed up.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Yes. Okay.

[Peter Conlon (Chair)]: So it is under Subdivision 5. No. It's out. No. It's outside of that. Go to my indents here. Yeah. So it is Subdivision E. Yes. Last line of that. Right.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Yeah. I think that I think there potentially could be effects. I'm not sure it's really a genuine conflict because school officials generally are not law enforcement authorities. The authority that DHS and ICE has by Congress to partner with somebody in terms of immigration enforcement, deputizing, so to speak, is confined to state and local law enforcement officers. So I don't know that there's a strict conflict, but I think it may be as required or permitted or I think that's something that could be easily cleared up. But these agreements that I'm talking about, which are widespread in The US Southwest for example, although not necessarily New Hampshire used to have or one department in New Hampshire used to have one of these agreements which are called two eighty seven agreements which just refers to the section in the immigration law. So I think that's something that's easily remediable. I don't think there's really a tension there. I've never heard of a school doing that, And I'm not aware of any kind of agreements that ICE has done except for two eighty seven agreements. But you never know. I mean, can seek agreements if they're voluntary. So I think it's a good topic to address. And with that, I'm happy to talk about different provisions, including some thoughts about the thirteen seventy three clause here because

[Peter Conlon (Chair)]: If you have suggestions for improvement, we Yeah,

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I think there are a couple I'll say for consideration. Mines may differ about whether it's an improvement or not. So let me just stick with, because I'll stick kind of with the last first with the section relating to 1373 and 1644, because we were talking about it. Is that okay? Yes. So I mentioned in 2017, there was a law that had a so called savings clause that mentioned that said that that law, the no registry law, was not intended to prohibit or impede state or local agencies from complying with the lawful requirements thirteen seventy three. Lawful requirements was specially chosen because courts have suggested that some applications of those statutes may be unconstitutional, such as applied to a privacy policy we would argue, but in other cases it may be constitutional. So only when the federal law may be applied lawfully, that's when you have to comply with it. That's why it's in there. It's not conceding that the statute is legal in all respects. A feature of that 2017 law, and by the way, there was a second 2017 amendment to a different law that governs the Vermont State Fair and Impartial Policing Policy that also refers to those statutes. They use slightly broader language that I mentioned before the Senate Education Committee and that I'll mention here. There were really two provisions. One, it wasn't limited to a particular police department, but was any law enforcement agency. But also there was a provision, there's a provision that's still in the law, two different places in Title 20, that says to the extent a, let me look at it, but to the extent any state or local, I'm just filling in the brackets with law enforcement policy or practice conflicts with the lawful requirements, it's hereby abolished as to the extent of the conflict. And so if a local police department, the idea was if a local police department wanted to pass a policy that conflicts with those federal laws, it's not part of a safe harbor, just conflicts with that. The 2017 laws, which did and still do say that to the extent there is a conflict, the policy isn't valid, can't be enforced against the employees. You can't discipline an employee for violating something that conflicts with federal law. So it's kind of an automatic rescission or automatic abolition, however you want to describe it, provision. So that one didn't have to go to court and get an order to say that, yes, this conflicts with it. It just says right on the statute. If you can identify a conflict where you're bucking up against a lawful requirement of federal law, to the extent there is a conflict, that provision is null and void. That's something that I think has served law enforcement well, and it's something that we would recommend for this bill as well. One, we think that if we're gonna cite savings clauses relating to federal laws, where the legislature has already looked at it. We try to, in general, mirror the language that we've been using and have been satisfied with. So we've had that language in Title 20 in two different statutes for about nine years. And it's not a feature here. The concern always is just that you can have a directive that says, it's not intended to allow you to do it, but what happens if you do it anyway? And so on the law enforcement side, the idea was, no, if you're going have a model policy, people can't enact another policy that violates federal law. And sometimes that can come up in issues with federal grants where you have to certify your sub grantees if it's a pass through grant, your sub grantees are complying with federal law. How do you know if they're complying with federal law? You have to go police the federal law. So if they have a policy that conflicts with federal law, but your state's law says that it's null and void, it makes it easier to certify compliance. Could you say, well, they don't have anything, state law prohibits them from doing that. The other area where I think this could be strengthened, at least for purposes of the bill, and again, I'm not counsel to the agency of education, so they may have a different view, is right now that the language here is that it's not intended to prohibit or impede any school from complying with the lawful requirements such as they are of the federal laws, but it doesn't say anything about school districts or the agency of education. It only says about schools. And if the agency of education and school districts are doing an active party, those may be legal, least from a federal standpoint, if not a state court standpoint, they may be viewed as legally distinct entities versus a school versus a district versus the state. I don't think that creates mischief with anybody because I don't think anybody is about violating federal law, but it's just, I think an unintended narrowing in this provision that I think doesn't serve folks well. And because our office, at least right now, legislature is imagining us putting out guidance, that's kind of the lens we would apply to it is like, who are the government actors involved and are you all subject to the same standard?

[Peter Conlon (Chair)]: So I think your suggestion is that we don't just say school, we say school district and the agency of education?

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Public agency, public entity. I think Legg Council can come up with any. I think that's just a matter of wordsmithing. But I think at a minimum, as a conceptual matter, the word should sweep in the district. For sure. Because they are the ones that are setting forth the rules And then they're going to be the ones that may, if there are issues, that may have to answer questions about those laws. So I think that's just a way to fortify it. And again, just substituting out words from law enforcement agency and putting in the school related terminology and aligning it with those two state laws that I provided to the committee, I think provides the safest solution, the ease of interpretation. If something ever did get to court on something, courts will ask the question, well, you use different words in this statute versus the predecessor. So what did you mean by that? And if you meant to have a consistent standard, then it's safest for your intent to be carried out to use the same language that was used before. And so that would be a recommendation we would have about section F. We do have a couple of other comments, but I don't know if I've taken too much time or if there are questions

[Peter Conlon (Chair)]: for me and so on. While we got you here, let's hear your other comments. That's great. Okay. We're on our rules.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Well, now I'm really speaking at least partially from the perspective of someone I think in our office I would likely be participating in at least in developing or helping others develop the policy. And so there were some questions that I just had. I don't know the answer to it, but I'll just flag them. So this is for statute fourteen eighty six. It's in the definition section, and has to do with its subsection, I think A2, which has to do with non public area of the school. So I have a question and a comment. I don't know what you want first. When my kids went to school, the teachers say, ask your question first, then you can make your comment. My question is, it wasn't clear to me what was intended when it says a school determines something to be non public. When we are asked or when people are asked to look at compliance with the law, one of the questions are, who's responsible? And so that's something I wouldn't know, who's responsible is that the school board, the principal, a gym teacher, I'm not sure the answer. And this relates to my comment, but I saw a hand up, so I'm gonna love him again. Hey, Josh.

[Joshua Dobrovich (Member)]: I wanna ask a question, I just kept going at what I'm about to say may or may not actually answer it, but I asked if this school can deem the parking lot the ball field whatever as and they said yes. They can deem any part of whatever part they want is.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: It's a question that I love it because it actually encapsulates my comment, which is that determining whether something is non public generally for someone, for anybody, and I'll just use someone as kind of the informal pronouns for entities and humans. If you have the right to control your property, you have the right to designate what's public or not public. And you can do that temporarily. There's got to be some rational connection to what you're doing. So an example that I gave in the Senate Committee was that sometimes I played football in high school. Sometimes people get hurt. And nowadays they have what we didn't have back then, these little temporary tents they wrecked and they go see a physician in there and maybe they disrobe to get something taped, examined, or treated. That's something the school could designate as private because you may have somebody who's underage, who's in a state of total or partial undress. You could have a school production, for example, where there's not dressing rooms, but you might have a curtained off area where students are taking off their clothes to put on another costumes. In many high schools, people play multiple roles. That could be something that could for one night, if it's a one night production or a talent show where people need a changing area. And so that could happen. Or you just have someone who's injured. Again, there could be an accident, school parking lot, maybe school nurses out there and they want to cordon off an area and maybe bring out from their first aid room, a curtain to ensure privacy if someone's being treated. That could be something that would be ad hoc, non public, right? Where you can't have just world coming in. There could be consequences, the school could have consequences if people violated the privacy. So that would be something that I think in terms of identifying the guidance, I think we would solicit input from the various stakeholders about what are the common areas, what are the most frequent examples of non public, but then leave some flexibility with articulating the principles for people to apply. But like, well, what happens if you have someone? And that may again, that may be someone where they are injured, where they're in a state of undress. There may be other circumstances that I'm not thinking about. But in general, for state and local facilities, like if you run the building, you get to decide. Your purpose has to be kind of rationally connected to privacy. You couldn't have some, let's say some other state has a you know, had some wayward school that says, we're going to declare everything because we you know, our policies is to thwart enforcement of federal law. That's not going to work, right? It's got to be again, you have to have pretty low showing of some connection of what you would need to have privacy. I think just basic standards of thesis.

[Peter Conlon (Chair)]: The council basically said you can sort of decide on a case by case almost day by day basis.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Yeah, it be ad hoc, it could only be for one event. Again, like you would have there's a homecoming game and the band needs to change uniforms and have a place to stay. They can create a temporary structure or something that would be private, that serves the needs of those students. Where I think the standard would be, anybody could just walk in, you'd

[Peter Conlon (Chair)]: go, oh my gosh, what

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: are you doing? Well, was thinking too,

[Unidentified Committee Member]: with so many schools, you do buzz in these days.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: And as soon as you go through a locked door and you're buzzed

[Unidentified Committee Member]: in and you have to identify yourself, you're in a non public place. There are little kids in there studying, are kids in there studying, playgrounds are usually fenced off, like these are, especially during business hours, people just don't wandering off the street. So I think that this is a real easy one.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Think that's quite right. Think there are, what I'm talking about would be events where they would otherwise be open to the public. High school football game. A march through town for something.

[Joshua Dobrovich (Member)]: Yes. I think some of my concern is that like, drop off, pick up in the morning. Like, are you, do we start in our designated times that it's public and private throughout the day? And then if it's private throughout the day, is there someone standing at the end of the driveway checking everybody who comes in? Parents don't know that now it's not a public space and they're just rolling out to the lolly. I think it starts to create when you run it past the walls that the school was within, you start to run-in the waters or make very

[Peter Conlon (Chair)]: unknown. That's why the language is in here that says, means an area of the school that normally requires authorization by the school to enter.

[Joshua Dobrovich (Member)]: I know when I asked, you know, could a parking lot be the answer is yes. Like that to me is like that, you know, I think of picking up my kids during the day or

[Peter Conlon (Chair)]: I would imagine they have to show that one has to be authorized to enter it, though. Soccer people down the road. But yeah, we can say that for council.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I would just know I'm familiar with schools that have gated parking that have an arm that comes down with schools that have security officer that has an ID requirement to get on. Understand, but they exist is what I'm saying. I think if they exist, the school could, you know, would be expected to limit it consistent with whatever access. These are

[Peter Conlon (Chair)]: the questions for the Superintendent's Association.

[Unidentified Committee Member]: To a certain extent, it also has to do with hours of operation because for instance, soccer fields during a soccer game is not a private place. Our whole community shows up. But if someone were sketchy were to show up between the hours of eight and three and we saw them out on the soccer field, we would certainly go down and maybe even call the police and have them removed. So at that point, it was a private area and classes take place there.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I think school boards meetings are another one to where the schools can designate a portion of an otherwise locked area. You can enter the school at 6PM. You can go to the library, but you can't go into classrooms. And so schools do have a lot of authority, and I don't really see the statute here really limiting that existing authority. It's just saying that if you know what is nonpublic, then you have certain additional duties relating to access to those areas related to largely in this bill to immigration authorities, which is part of the overall policy, which is that we're not part of the immigration enforcement mechanism that the federal government operates.

[Peter Conlon (Chair)]: Within that section, since you brought it up, do you have a suggestion for how we either tighten it up or is it satisfactory the way it is?

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I would want to check again. I would want to hear from other folks who like the from the school board folks and also maybe counsel for AOE. But there's nothing that really stands out to me as being very awry here because I think that, again, it's not going to be one size fits all, even for a grade level for any school here. And the Vermont model is very local control versus schools compared to other parts of the country. And so it seems to me to be consistent with that philosophy, but there are other people who are more acquainted with philosophy than we are in the civil rights unit. So nothing else really stood out. It was just a question of like, I wanted to know who makes that determination. Yes. And that would be something that we would address in the guidance and I think in about delegation, as long as it's consistent with what the legislature wants, because that's our time to carry out what you want. But that was a question we had was like, well, who makes that call? And so I had a

[Peter Conlon (Chair)]: couple of other quick comments. Great. Let's hear those. So again, I think this is

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: just language which really, I think, just has to do with what I think the sponsors and I think the Senate intended, but I'm not sure it quite gets everything that they were intending to get. Is on so now this is it has to do with student records. This is subsection C. At least on my copy, it's line four. I'm not sure what got. Or H3. H3, yeah, that's what mine says. So the language right now is as drafted says schools are prohibited from using policies or procedures to engage in practices that have the effect of excluding a student. So we have two comments of that that we shared with the Senate Committee before crossovers. It's not surprising to us that maybe they just chose not to enact it. I'm not sure. One is that the only prohibition there is exclusionary policies that invoke a policy or a procedure. So, if someone just makes a disclosure and they don't use a school policy, they don't use a school procedure, they just do it because they want to do it, That's not prohibited by this section. So, I think you would want to just have a blanket prohibition on practices in general, whether it's using a policy or not. Someone could do something that's contrary to a policy, but this would also make it contrary to statute, which is a stronger level of violation. Let's

[Unidentified Committee Member]: start with a question for me out of flat field. Because schools do have policies that exclude students from school if they've committed something that's it's not about immigration. It's about something they've committed an act that's dangerous to other students and they've expelled them or suspended them. And I wouldn't want that to accidentally get brought into this, because schools do have policies and procedures related to safety that excludes students from school.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Right. At least from our practice experience in the civil rights unit, there's a lot of harms that we encounter in the discrimination world that are done where of a person's own initiative without using a policy or procedure to do it. And I think it was intended to just say, we don't want people doing things that exclude people. The other language that I think it was unintentionally limiting was that it said practices that have the effect of excluding a student. So in other words, it's not unlawful until you actually have exclusion. There are other statutes that the state has passed where you prohibit practices that have the quote purpose or effect of excluding. So if someone does it intending to exclude someone, but someone toughs it out, it could still be prohibited. The state definition of harassment in the education code, for example, in defining harassment refers to conduct that has the quote purpose and effect of objectively and substantially undermining and detracting from students educational opportunity. And so this doesn't have purpose or effect. That was probably intended. You don't have to wait until they succeed. If you learn someone just says, hey, I'm gonna rock someone's world and mess up their world and make this disclosure. Even if the student shows up the next day, it's still contrary. It's still contrary to the statute and would have that intended effect. So again, purpose or effect, I think is the stronger language and I think consistent with what sponsors and the Senate were looking at. Going down to C subsection two, this really has to do with that FERPA, this kind of FERPA related disclosures. We had a question about the phrase designating the student's immigration status. To our ears at least, when we're looking at laws dealing with confidentiality, usually the word is disclosing, designating it usually is an official act,

[Peter Conlon (Chair)]: hereby call you X, interesting verb.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I would note that there was earlier testimony from Senator Vajewski about the Windham policy. The Windham provision that parallels this uses the word disclose rather than designate. I just think that creates a potential ambiguity that wasn't intended. So, think disclosure is probably the right because it may be disclosure just means you're divulge it whether it's an official act or not, designation tends to be. I was designated as a special AG when I moved to Vermont twenty plus years ago. It's an official act typically. So there a couple of comments about arrests that I think may be something ledge counsel may want to look into a little bit and or connect with us about that. This really has to do with subsection D. That has to do with law enforcement on-site. Where it's talking about, this is subsection D2, you won't allow someone into a nonpublic area unless they have two things, official ID and a judicial warrant that names someone subject to an arrest or subject to a search. So, there are two types of warrants and sometimes they're combined. There's a search warrant that identifies a specific area.

[Peter Conlon (Chair)]: Legis Council brought this up to us. He said change it to subject to arrest.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Well, it's not just subject to arrest because my arrest warrant says it's actually an order from the court arson. You shall take this person in to arrest, but it doesn't allow unless the warrant itself says where you can go. An arrest warrant on its own doesn't allow you to enter in any private area. Think about a general arrest warrant for failure to appear. The police couldn't just go down the neighborhood and start entering houses. And so there may be language where you say that, like, you won't allow them to go there absent a judicial warrant requiring access to an area for purposes of placing an arrest or conducting a search. We have language that maybe Ledge Counsel might want to look at, but I think that you would want to make if you're going to confine it to a warrant, you want make sure the warrant says you can go there. A lot of arrest warrants don't. It could be, I mean, theoretically, these are federal officers. They can have an arrest warrant that relates to that was issued by a federal district court in Delaware or Maryland. And on its face, the Maryland judge can't tell you you can enter into Vermont schools.

[Peter Conlon (Chair)]: So what you're saying is not only does it name a specific individual, but you're saying it should also name a specific area. Right.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: I mean, a general term like requiring access because it's a court order. You shall allow them to go in this area or you shall have access. Requiring or permitting, like I said, it's a wordsmithing question. But I think it sometimes is because there's a lot of words in

[Peter Conlon (Chair)]: this

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: bill, but it's just the idea when we think of judicial warrant, even an arrest warrant doesn't tell you you can go into a private place. That's deeper than what.

[Joshua Dobrovich (Member)]: Yeah. I

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: mean, right now they're probably in state of Vermont, a few 100 warrants. Yeah. I can't speak for everyone, but I assume that none of you would be required to open your own to law enforcement to search for the people on any of those hundreds of warrants. You know, just to use a common place, get your home is a non public area, schools have non public areas. And so if you have an order from a judge, the judge has got to describe where you could go. Sometimes that is the residence that the officer provides evidence and affidavit says, reasonably believe this person is gonna lives there based on this evidence. And the judge says, okay, so you can go into that residence. You can't go into their neighbor's house or their employers or their school. You can go into that house. So that's a point that I think was intended, but I don't think quite carried out the intent. And I think the subsection three, I think is the same issue where you talk about it says absent a judicial warrant, you would want to say more about that judicial warrant that it authorizes access or requires access. The next comment really has to do it's a minor point, but I think an important one. And since you've given me the floor, I'm taking her away. Hold on with it. And this has to do with the adoption of a policy. This is at the end of section two that talks about school boards developing immigration policies and talks and gives them room to craft policies of their own to tailor it to their needs. And that's consistent with the fair and impartial policing policy we have for the police. There's a model policy, but Vermont has almost 80 law enforcement agencies, and they all they're very different in their scope and operations. And so they can tailor their own policy, but it to be consistent with the model policy. And I think that was intended here. There was language here that I think is hard to define or to understand in application for purposes of giving guidance where it says an immigration protocol policy shall be at least as stringent as the model policy. Not sure what I guess at what stringent meant. I think it means that provides at least as much privacy and safety for students. And so I would recommend language that furthers those purposes rather than leaving us or someday a court, hopefully not, but to determine what stringent mean. It is language that is used repeatedly when it

[Peter Conlon (Chair)]: comes to model policy and then adopting policy. The point is, okay.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Yeah, I think in terms of where we are in this kind of sometimes gray space dealing with federal and state authority when we're talking about stringent, we're really just focusing on the purposes of the law, which is that you could have something that's more protective of privacy, more protective of student safety, because that's kind of the purpose of it. The other thing here is that to avoid I think it's clear, but I think to avoid misconceptions about how far states could go, I think you would want to make sure that there's language in this section that says they can adopt a policy that's consistent with this new statute, this section, and at least as stringent as the model policy. Because remember, statute, if it is enacted, says there's a federal line you can't cross. And so the question we would address, we could imagine it coming up is whether schools think that you're licensing them to cross that line. The statute says you can't cross that line, and if you adopt the automatic abolition or rescission policy, it'll be at least legally stricken. So saying something that'll be consistent with this law, which we would want a policy inconsistent with your law. But I think it's better to avoid those questions in the future just to make clear that's the intent rather than saying it's applied. This is the legislature's chance just to say it straight out, that you can't run afoul of the statute in any way. And I think that those are the specific comments that I

[Peter Conlon (Chair)]: have It was regarding my very helpful and very informative, and we will have Legis Council probably reach out to you about some of these specifics that we've taken notes on.

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: Yeah, mean, overall, I think it's our office, when we look at this, we understand what the bill is about, we understand the legal context, We think it's within the framework that the courts in our circuit have permitted states and local governments to legislate. And so most of our comments, as you saw, were just aimed at either clarity or just consistency and trying to effectuate what I think the committee was trying to do.

[Peter Conlon (Chair)]: When Ledge Council was in here, they did mention that some of this happened in an amendment on the floor and

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: they didn't have time to So they weren't welcoming

[Peter Conlon (Chair)]: this kind of feedback to put some work.

[Unidentified Committee Member]: I think that's helpful. The

[Julio Thompson, Assistant Attorney General (Vermont), Co-Director, Civil Rights Unit]: other thing I would say, policies, as you know, in other contexts often can be much more detailed, and that's in our experience, that's appropriate. There's a fair and impartial policing statute that we provided to you, section two thousand three and sixty six. That's a few 100 words, the state fair and impartial policing policy is probably a few thousand words, but it provides an appropriate frame to allow stakeholders to put those, like what are the expected standards. And I think the parameters, as I've talked about here, I think with those clarifications, I think provide a grounding. As I think AOE has already indicated to you, they already have some experience providing a lot of this guidance, and this seems largely consistent with that. And so I think we feel like it came out of the Senate I think you know in a way that we could understand it. Think help you if you're inclined to move it forward there's I think there's a way to do that.

[Peter Conlon (Chair)]: Yeah thanks, really good suggestions and we'll look forward to having Legis Council be in touch with you about it. Great. Not

[Unidentified Committee Member]: the other question Tim, about them committing to AOE and superintendents.