Brief
Explanation
of “No Child Left Behind” – Section 9528 Military Provisions
Basics:
As part of the “No Child Left Behind” Act (NCLB), a provision was included that required any school district that receives funding under NCLB to comply with requests by military recruiters to have access to secondary school students and their records. The type of information a recruiter may request is known as “directory information”. According to Family Educational Rights and Privacy Act (FERPA) guidelines, “directory information” includes such items as name, address, telephone number, e-mail address, extra-curricular activities, weight, height, date and place of birth, and photograph. According to the guidelines, the disclosure of those types of information is not harmful and is not considered privacy invasions. However, a strict reading of Section 9528 requires only the disclosure of name, address, and telephone number. Also, there is no requirement to disclose information about former students; however, there is no prohibition against releasing information about former students either.
Directory Information is the same information that can be and is given to college recruiters and perspective employers. The difference is that non-compliance may affect the school’s federal funding. This does not apply to schools that have a religious objection to military service. The objection must be verifiable through the documents and materials of the school. Essentially, a public school or district cannot opt out of providing this information. Private schools that receive any federal funding cannot opt out unless they have established written documentation. The National Association of Independent Schools summarizes the “opt out” policy for private schools without a documented religious objection.
The statute also provides that a school may, through a majority vote of the “governing body of the agency,” deny access to the students or the directory information, or both. In most schools, this governing body will be the school board. If this is the course of action a school wishes to pursue, the board should hold a vote and pass some sort of written referendum or policy reflecting the wishes of the school board. This referendum should be written very broadly to include denying access to all former, current, and future secondary school students and their relevant information.
When using this option, schools should obviously be aware of the climate in their respective communities and think of other ways of working with the military to permit what the school feels is an appropriate amount of access. (Wilson, NAIS 2002)
While the school district, for practical purposes, cannot opt out, an individual student can opt out. The school district has a responsibility to inform the students of their policy concerning the disclosure of student records. Information about opting out must be included in the literature concerning that policy. The school district must set a deadline for opting out and it is recommended that the district create a standard opt out form. Included with the letter dated September 22, 2003 from the New York ACLU are two forms for opting out, one for students, and one for parents. One point to note is that if a student chooses to opt out a parent can override that desire with written permission to have the student’s records released, provided the student is under the age of 18.
What if the school’s
policy is not to release student information to any organization, even
college
recruiters without written consent?
If a school has policy that prohibits the release of student information, that policy does not apply in this instance and the records must be disclosed to the military recruiter unless the student or parent submits explicit documentation otherwise.
Before NCLB, what was
Michigan’s policy on releasing student information to recruiters?
According to the Michigan Department of Education, there was no statewide law concerning military recruitment, each district developed its own policies about giving military recruiters access.
Can the records be disclosed without explicit consent?
Yes. There has been some confusion over this point. So much so, that Deputy Secretary of Education William D. Hansen and Under Secretary of Defense David S. Chu authored a letter clarifying the issue. The policy is an opt out policy as opposed to an opt in policy. The default is that student information is disclosed. Explicit refusal by the student or the student’s parent or guardian to allow the information to be released is the only way the information will not released.
What happens if the school does not provide access?
The National Association of Independent Schools explains the consequences of a school or school district not complying.
i. congressional committees;
ii. Senators of the state in which the school is located;
And
iii. Representatives who represent the district in which the school is located.
This
statutory scheme creates no other penalty than various individuals
being
notified. What those individuals might
do with the information is, of course, up to them.
This process should not necessarily be read to imply that
there would be no consequences of notice being given to the
offices
mentioned. However, at this time there
is no statutorily mandated requirement that the school pay a fine,
or any
other form of punishment. At some
point, lack of compliance may lead to loss of the triggering NCLB
assistance
(Wilson, NAIS 2002).
If you have further questions or want more material, contact me, David Thomas, at davethom@umich.edu or at home 734-995-3277. If I know it or have it, I am happy to share it with you.
Article
about 9528 Originator David Vitter