No Child Left Behind

The federal No Child Left Behind Act (NCLB) (you can find the complete text of the NCLB here: http://www.ed.gov/policy/elsec/leg/esea02/index.html) contains a provision requiring schools to give students' names, addresses, and phone numbers to military recruiters who request them. The penalty for not disclosing information requested by military recruiters is potential loss of federal funds. The NCLB, however, also gives parents and students the right to "opt out" of the disclosure of this information.

There is some disagreement over whether schools must provide families the option of releasing information to colleges and other organizations while not releasing that information to military recruiters. Some have erroneously claimed that keeping contact information from military recruiters automatically stops contact information from going to colleges and other groups, the so-called "all or nothing" argument. It is the ACLU's position that the law does allow a separate opt-out from military recruitment lists.

A letter (http://www.ed.gov/policy/gen/guid/fpco/pdf/ht070203.pdf) sent July 2, 2003, to chief state school officers from the U.S. Department of Education noted schools' responsibilities for providing recruiters with student information. The letter also stated: "It is important to note that under the statutes parents may 'opt out' of allowing schools to provide information about their children to military recruiters." In fact, according to an email from the federal Family Policy Compliance Office (see "GOVERNMENT INFORMATION" section below), the law does not require an "all or nothing" policy because a "school may permit parents to 'check off' who may or may not have access to directory information on their child."

In other words, the right to opt out may be exercised selectively by families. It is incorrect to say that disclosure is an "all or nothing" proposition. Families have the right to choose not to make their child's name available to military recruiters, while still making it available to other institutions and organizations (such as colleges).Students and parents must be informed of their opportunity to stop the release of their personal information, according to both the NCLB and the Family Educational Rights and Privacy Act (FERPA). In September 2005, various groups testified to the New Jersey State Board of Education about the need to protect the privacy rights of students in the context of military recruitment.

In order to provide families with meaningful notification of students' privacy rights, school districts should consider that:

  • Schools should provide a Simple Form (6k PDF) for opting in or out in a communication separate from other school directives and regulations. School districts around the country have found that putting the notice in the school handbook leads to parents and students overlooking this information. Revising student emergency cards to include a section for opting in or out is an additional method that has worked effectively in some schools.
  • Schools should provide a reasonable time for students and their parents to respond, particularly before allowing disclosures under an "opt out" system.
  • Students should be notified that the students themselves can choose to withhold their contact information from recruiters without prior parental consent. The Simple Form (6k PDF) can be distributed for students to fill out in class.
  • Schools should inform students and parents that contact information will be disclosed unless they object using this Simple Form (6k PDF), or another form, but, any form used should give parents and students the opportunity to withhold information from various entities (military, educational, and employers) selectively.
  • All forms and notices should be translated into necessary languages for members of immigrant communities attending schools.
  • Schools should pass along any costs to the groups that request directory information. Because the federal law is silent regarding the expenses associated with developing the list of students, nothing in the statute precludes a school district from passing along the costs of preparing the lists, including the safeguarding of student privacy rights, to the entity that requests it.
  • Schools need not give military recruiters special access, only equal access. Just because the NCLB requires schools to give military recruiters the same campus access that is offered to representatives of higher education and prospective employers, schools are not therefore required to give preferential treatment to military recruiters. For example, schools that require a forum for students to hear alternative views on controversial issues should apply the rule to military representatives. Schools that exclude employers that practice discrimination, should also apply that policy to the military, which engages in discrimination based on sexual orientation.

The ACLU recognizes that students have the right to investigate the range of post-graduation opportunities available to them. But, the ACLU feels strongly that students should be able to explore those opportunities on their own terms, with their rights to privacy protected.

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