Lawmakers have made this possible: Congress passed two laws that gave recruiters information about young people and to allow recruiters to go into the schools so they can try to convince high school students to enter the military. These laws were contained in the “No Child Left Behind Act” (NCLB) of 2001 and the “National Defense Authorization Act for Fiscal Year 2002” (NDAA).
Since those laws have gone into effect, many educators, students and parents have complained that recruiters in schools are using heavy-handed tactics to harass students, violate students’ privacy rights, and target poor students and students of color.
This FAQ seeks to help students, parents, educators, and advocates understand their rights when it comes to military recruitment. Sections in bold are also included on our "No Student Left Unrecruited?" card; sections not in bold include more expanded legal information.
What information about students can military recruiters get from schools? Are there any exceptions?
Military recruiters can and do approach high schools and ask for lists of students’ names, addresses and telephone numbers, and unless an individual student or parent tells the school in writing that it may not release the student’s information, the school must hand it over. The recruiters’ authority to obtain this information comes from NCLB and NDAA, which require that schools disclose student names, addresses and telephone numbers (sometimes called “directory information”) to the military on request. But these laws also gives students and parents the right to tell the school not to give students’ information to recruiters without “prior parental approval”--in other words, without going back and asking the parent again.
The part of NCLB requiring schools to hand over directory information is as follows:
[E]ach local educational agency receiving assistance … shall provide, on a request made by military recruiters … access to secondary school students’ names, addresses, and telephone listings. [Title 20, United States Code, Section 7908(a)(1)]
The same requirement is part of the NDAA. [Title 10, United States Code, Section 503(c)(1)(A)(ii)]
The part of NCLB giving students and parents the right to have a student’s directory information withheld is as follows:
A secondary school student or the parent of the students may request that the student’s name, address, and telephone listing … may not be released without prior written parental consent, and the local educational agency or private school shall notify parents of the option to make a request and shall comply with any request. [Title 20, United States Code, Section 7908(a)(2)]
NDAA contains an almost identical provision. [Title 10, United States Code, Section 503(c)(1)(B)]
Can schools release student information before offering students and parents the opportunity to object?
No. NCLB and NDAA state that before a school gives a recruiter a list of students and their contact information, it must give students and parents a chance to get off that list. The school cannot release student directory information if the student or parent objects.
There is some disagreement as to when and how often a school must provide students and parents with notice of their right to have information withheld. Many schools, including New York City schools, only provide notice to a student and the student’s family when the student enters ninth grade or transfers into the New York City high school system. Therefore, it is important that a student or parent who wishes to prohibit disclosure of his/her child’s information respond to the first notice as soon as it is received.
Does the military have ways to get to other information about students to be used for recruiting?
Yes. The military has access to other sources of information, both public and private. Recently the Department of Defense announced that it is developing a centralized database of information about millions of young people who are potential recruits. To put this database together, the DoD is using state Department of Motor Vehicles records, Selective Service records, commercial databases and other similar records. It is also maintaining a record of those who have asked to be removed from recruitment lists.
Congress has authorized the Secretary of Defense to develop and maintain such a centralized database. [Title 10, United States Code, Section 503(b)] Congress has also imposed certain restrictions, limiting the list to information about those 17 years of age or older, prohibiting the DoD from holding onto the information for longer than three years, and providing for strict confidentiality. [Title 10, United States Code, Section 503(b)] However, the Department of Defense announced that it will be seeking information for those 16 years of age or older, that it will maintain the information for 5 years and that it will, under some circumstances, share the information with other federal agencies. [Federal Register, May 23, 2005 (Vol. 70, Number 98)] In addition, the database is being developed and maintained by a private contractor and there is concern about protecting the confidentiality of the records.
The Department of Defense has not yet provided a clear way for people to have their name either removed completely from the central database or moved into the lists of those who have asked not to be contacted by recruiters. However, the DoD has indicated that it is accepting through congressional offices the names of people who do not want to be contacted. [Federal Register, May 23, 2005 (Vol. 70, Number 98)] Therefore, if you do not wish to be contacted, you may write to your congressional representative and ask that the representative’s office convey your preference to the DoD.
How can a student or parent stop a school from handing over the student’s information to the military?
To keep the military from getting information about a particular student, the student or a parent should submit a request to the school, in writing, stating that the school should not give the student’s information to the military. The school should give students and parents a form for this purpose and an explanation of their right to have information withheld, but it should also honor any other kind of written request.
The law provides schools with significant leeway as to how to give students and parents the opportunity to withhold student information, but it does require schools to provide that opportunity in some way. The part of NCLB containing this mandate is as follows:
[T]he local educational agency or private school shall notify parents of the option to make a request [not to release information] and shall comply with any request.
NDAA has an almost identical provision.
Each local educational agency can make its own form of notice and means of making a request not to disclose student information. Since it appears that the burden is on the student and the parent to affirmatively request that information not be released, this request process is often referred to as “opting out.”
If you want to be sure that information is not released, fill in and return any form provided by the school as soon as possible and follow up with the school to make sure that it is received and respected. If you miss the deadline for returning the form, send in a form or other written request as soon as possible, and then follow up with the school. If you are concerned that information has been released to the military against your will, you should contact the school administration and ask for the names and contact information of the school’s designated recruiters, then contact them to ask to be removed from their lists.
Although the statutes state that parents have the final say in prohibiting the release of student information, students who are eighteen years or older should also have that right. Still, a parent’s signature is probably the safest way to make sure information is not disclosed.
Can high schools be required to release information about all of their students?
Maybe. The law refers to “secondary school” students, but the U.S. Department of Education and the U.S. Department of Defense have told schools that recruiters will only ask for information about students in the eleventh and twelfth grades.
The two statutes (NCLB and NDAA) state that schools must provide information about secondary school students. The statutes do not place any further limitations on which secondary students can have their information released. But in the joint October 9, 2002 letter offering “guidance” to the field, the Secretary of Defense and the Secretary of Education state:
In accordance with [NCLB and NDAA], military recruiters are entitled to receive the name, address, and telephone listing of juniors and seniors in high school. [Cover letter for “Policy Guidance – Access to High School Students and Information on Students by Military Recruiters.” October 9, 2002. http://www.ed.gov/print/policy/gen/guid/fpco/hottopics/ht-10-09-02a.html]
That joint letter was subsequently issued to all New York State schools by the New York State Education Department and is posted on the New York State Education website.
Still, the statute is not so limited; while the DoE and the DoD materials might indicate that the law only requires the schools to release information about juniors and seniors, it arguably covers all high school students.
Once the school has given a student’s information to military recruiters, are there any restrictions on how long the military can keep the information and who then can give it to?
No. Neither NCLB nor NDAA provides guidelines as to how long the military can keep student directory information or who else can use it.
Do NCLB and BDAA require schools to release information about former students?
No. NCLB and NDAA only require that schools release directory information about students who are currently enrolled.
Both statutes speak of “access to secondary school student names, addresses, and telephone listings.” Military recruiters may ask schools for information about former students, but there is no legal authority that requires schools to release it.
Can a student have his or her information withheld from military recruiters without also having it withheld from colleges and potential employers?
Yes. Schools should allow students to opt out of supplying information to the military without opting out of supplying the same information to colleges or job recruiters.
Several local educational agencies have passed on to the military the cost of developing and maintaining lists of students who have opted out of disclosure of their information to the military. Nothing in the statute precludes this policy.
Must schools provide student directory information to military recruiters within a certain time frame?
No. Recruiters sometimes tell school officials that they must hand over student information within a specific amount of time (e.g. five business days), but there’s no legal basis for this demand. A school must respond to a request from a recruiter within a reasonable time frame that leaves plenty of time for students and parents to let the school know if they don’t want to release their information.
Neither NCLB nor NDAA sets a time period in which schools must respond to military recruiters when they ask for student information. But since schools must provide students and parents with notice of their right to opt out and with enough time to exercise that right, the time frame must allow for those things to happen.
Do schools have to allow military recruiters on campus?
Yes, but only if the school already allows colleges and prospective employers on campus. Federal and state laws require that high schools give military recruiters “the same access” to campuses as the schools provide to other people or groups who tell students about job or career possibilities. So if a school doesn’t have any on-campus recruiting, it doesn’t have to allow on-campus military recruiting. But if a school has a job fair with many employers, for example, it has to offer similar access to military recruiters.
The part of NCLB that mandates that schools give military recruiters access equal to that given to other recruiter is as follows:
Each local educational agency receiving assistance ... shall provide military recruiters the same access to secondary school students as is provided generally to post secondary educational institutions or to prospective employers of those students. [Title 20, United States Code, Section 7908(a)(3)]
NDAA has an identical provision. [Title 10, United States Code, Section 503(c)(1)(A)(I)]
A note about the application of anti-discrimination policies to the military: The law only requires that schools provide equal access to military recruiters. Schools that exclude employers and/or colleges that engage in discrimination based on sexual orientation should be able to apply those policies to the military as well. Military recruiters dispute this view. In the 2005-2006 Term, the Supreme Court will be deciding whether anti-discrimination policies can bar military recruiters from college campuses.
Must schools allow military recruiters in the lunchroom?
No. School districts can decide where people may go in school buildings. So long as military recruiters have the same access as other recruiters, it’s up to the school to decide whether they will be allowed into the lunchroom and the common spaces or limited to another area.
Military recruiters may visit certain schools more often than others; recruiters tend to target minority students and schools in low income areas where the student population is thought to be less likely to go on to college.
Schools may choose to allow access to military recruiters more often and in a variety of locations including lunchrooms, gym, assembly, and the classroom itself.
The law does not set a limit on how often or where military recruiters are allowed, it only requires equal access to that given to colleges and prospective employers.
However, the law does not require schools to allow greater school access to military recruiters than it gives to college or employment recruiters; for example, if college recruiters are only allowed to come into the school once a year to participate in a college fair, military recruiters are only entitled to come once a year.
Can outside groups critical of the military get equal time on campus to present their views?
It depends. Schools can choose to allow groups critical of the military, or those presenting opinions different from those of the military, to come on campus. In some cases, students also have the right to bring such groups to campus: if the school allows any student group to invite outside speakers, the school has to allow all student groups to invite outside speakers, and the school may not discriminate against a particular speaker because it disagrees with his or her point of view. And if a school does allow the military to recruit on campus, it can’t keep out organizations offering information about jobs in the peace movement or other career alternatives to the military.
Schools have considerable authority to decide whether or not outside groups can have access to campus and school resources. However, a school may not allow some outside groups access but deny access to others because the school disagrees with a particular group’s point of view. Thus, if the school allows military recruiters access (because it wants to or is obligated by NCLB) it cannot deny equal access to those promoting career alternative or jobs in the peace movement. That does not mean that outside groups have a right to be in the exact same place at the same time as military recruiters, but rather that the groups must be afforded comparable access.
In decisions about which groups may have access to schools, schools generally may engage in content discrimination but not in viewpoint discrimination: while schools may limit what subjects may be discussed, they may not limit which viewpoints may be represented within those designated subject areas.
Can student groups critical of the military meet on campus?
Yes--if the school allows other student groups to meet on campus. The Equal Access Act requires that if a school allows at least one non-curriculum-related student group to meet on campus, the school must give equal access to all other student groups. This includes student organizations that oppose the military, military service, or war.
Schools may be able to prohibit all extracurricular student groups. However, if the school allows any extracurricular groups to meet, it must give equal rights to all such student groups. The federal Equal Access Act prohibits secondary schools that receive Federal financial assistance (and nearly all do) and that allow “one or more noncurriculum related student groups to meet on school premises during noninstructional time” from denying “equal access or a fair opportunity to, or discriminate against any students who wish to conduct a [similar] meeting . . . on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” [Title 20, United States Code, Section 4071(a)]
Can a student group set up a table or stand next to recruiters and hand out anti-war or anti-military fliers and pamphlets?
Probably. Students have a right to express their opinions as long as they don’t disrupt classes, block hallways, or disrupt other school activities. But schools can set limits about when, where and how students can distribute materials, such as fliers or pamphlets.
In general, students should let school officials know in advance if they’re planning to set up a table or stand next to recruiters to distribute pamphlets. Sometimes, school officials may ask to see the materials ahead of time and ask how students plan to give them out. If you’re not sure whether or not a school official is behaving appropriately, ask to see the school or district’s written policies on student’s First Amendment rights.
The United States Supreme Court, in 1969, decided that public school students have the right to free speech in school except when “school authorities reasonably ‘forecast substantial disruption of or material interference with school activities.’” [Tinker v. Des Moines School District, 393 U.S. 503, 514 (1969)] Put another way, the Court said that schools may prohibit “speech or action that intrudes upon the work of the schools or the rights of other students.” That particular case involved a student who wore a black armband to protest the war in Vietnam, something the Court called “a silent, passive, expression of opinion, unaccompanied by any disorder or disturbance.” That kind of speech is more easily protected than the right to distribute literature or to set up a table or to stand next to recruiters to talk to other students, particularly if any kind of disruption ensues. Schools do have the right to require review and prior consent to distribute literature so long as the school has specific criteria for approval or rejection (consistent with the standards mentioned above) and so long as there is a definite brief period within which review will be completed. [Slotterback v. Interboro School Dist., 766 F. Supp. 280, 289-90 (E.D. Pa. 1991)]
What if the school refuses to provide directory information to the military and/or refuses to allow access equal to that granted to colleges and prospective employers?
NCLB, which provides the legal authority for military recruiting in schools, does not prescribe penalties for schools that refuse to comply. However, another federal law authorizes the U.S. Secretary of Education to withhold payments, issue cease and desist orders and recover funds from any State Educational Authority (i.e. State Department of Education) “[w]henever the Secretary has reason to believe that any recipient of funds . . . is failing to comply substantially with any requirement of law applicable to such funds.” [Title 20, United States Code, Section 1234(c)(a)] The State Department of Education might seek to force a school to comply with NCLB by withholding from the school those federal funds that are funneled through that State Department of Education. To reiterate, any enforcement, including loss of funding, would have to go through the respective State Educational Authority.
The NDAA has no provision for withholding funds, but it does provide for a series of visits from and written notifications by the Department of Defense personnel, culminating in the Secretary of Defense contacting the state’s Governor and asking for help in restoring access to the offending school. [Title 10, United States Code, Section 503(c)(2),(3)]