Military Recruitment Provisions Under the No Child Left Behind Act: A Legal Analysis

Military Recruitment Provisions Under the
No Child Left Behind Act: A Legal Analysis
Jody Feder
Legislative Attorney
American Law Division
Summary
Under the No Child Left Behind Act (NCLBA) of 2001, which amended the
Elementary and Secondary Education Act (ESEA), high schools that receive federal
funds must provide certain student contact information to military recruiters upon
request and must allow recruiters to have the same access to students as employers and
colleges. Because the 110^th Congress is likely to consider reauthorization of the ESEA,
legislators may contemplate changes to the military recruitment provisions, either as part
of the reauthorization or as stand-alone legislation. Currently, two bills, H.R. 1346 and^th
S. 1908, have been introduced in the 110 Congress. This report describes the NCLBA
military recruitment provisions and discusses the legal issues that they may raise.
When Congress enacted the No Child Left Behind Act (NCLBA) of 2001,¹ it added
several new requirements regarding the ability of military recruiters to access student
information and to approach students directly. These new provisions — which are
different from similar Department of Defense (DOD) provisions that allow DOD to
compile directory information on high school students for military recruitment purposes
or that require colleges and universities that receive federal funds to allow military
recruiters on campus² — have proven to be somewhat controversial. Proponents of the

¹ P.L. 107-110, 115 Stat. 1425.
² 10 U.S.C. §§ 503, 983. The requirements relating to institutions of higher education were
recently the subject of a legal challenge, but the Supreme Court upheld the constitutionality of
the statutory provisions requiring military access to college campuses that receive federal funds.
Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 126 S. Ct. 1297 (U.S. 2006). For
more information, see CRS Report RS22405, Military Recruiting and the Solomon Amendment:
The Supreme Court Ruling in Rumsfeld v. FAIR, by Charles V. Dale. For historical background
on DOD provisions regarding military recruitment on high school and college campuses, see CRS
Report RL30113, Homosexuals and U.S. Military Policy: Current Issues, by David F. Burrelli
and Jody Feder. DOD recently published proposed regulations regarding military recruitment at
institutions of higher education. Military Recruiting and Reserve Officer Training Corps Program
(continued...)

recruitment provisions argue that the new law allows recruiters to inform students about
the military opportunities available to them and eases the task of recruiting volunteers to
sustain the nation’s military forces. On the other hand, opponents contend that the
provisions raise concerns about student privacy and should be changed to make it easier
to opt out.³ Currently, 95% of the country’s school districts are estimated to be complying
with the new requirements,⁴ although it is important to note that, traditionally, most
schools had already allowed military recruiters to contact students long before the
NCLBA provisions became mandatory.⁵
The new NCLBA military recruitment provisions require high schools that receive
federal funds to meet two requirements. First, such schools must “provide, on a request
made by military recruiters ..., access to secondary school students names, addresses, and
telephone listings,”⁶ and second, schools must “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.”⁷ Schools that fail to comply
with either of these two requirements — access to student information or equal access to
students themselves — risk losing federal funds. However, private secondary schools that
maintain a religious objection to military service are exempt from the recruitment
provisions.⁸
Access to Student Information
As noted above, schools must, when requested, provide military recruiters with
information concerning student names, addresses, and telephone numbers. Unlike more
personal information such as Social Security numbers, this type of data is not protected
by the Family Educational Rights and Privacy Act (FERPA),⁹ which currently allows the
release of student directory information in the absence of parental objections.¹⁰ Thus, even
before the NCLBA provisions were enacted, such student contact information was
potentially available to outside entities.

² (...continued)
Access to Institutions of Higher Education, 72 FR 25713 (proposed May 7, 2007).
³ Tamar Lewin, “Uncle Sam Wants Student Lists, and Schools Fret,” N.Y. Times, January 29,

2003, at B1.

⁴ Alfred J. Sciarrino, From High School to Combat? No Child Left Behind!, 36 U. West. L.A. L.
Rev. 94, 94 (2005).
⁵ Lori Aratani, “Military Faces Parental Counterattack; High School Recruitment, a Longtime
Tradition, Raises Worries in Wartime,” Wash. Post, November 1, 2005, at B1.
⁶ 20 U.S.C. § 7908(a)(1).
⁷ Id. at § 7908(a)(3).
⁸ Id. at § 7908(c).
⁹ Id. at § 1232g. For more information on FERPA, see CRS Report RS22341, The Family
Educational Rights and Privacy Act: A Legal Overview, by Jody Feder.
¹⁰ 20 U.S.C. § 1232g(b)(1).

Like FERPA, the NCLBA also provides the opportunity to opt out of the provisions
requiring the release of directory information to military recruiters. Under the NCLBA,
students or their parents may request that the student’s directory information not be
released without prior written consent. In addition, the local educational agency or private
school must notify parents of their right to make such a request.¹¹
Schools appear to have interpreted these opt out provisions in a variety of ways. For
example, some schools have, as part of their compliance with an array of privacy laws,
issued a general notice informing parents that they can opt out of the release of student
contact information, while other schools have issued a separate and more explicit notice
informing parents that such information may be released to the military for recruitment
purposes if the parents do not opt out. Both of these types of notice appear to meet the
statutory requirement regarding informing parents of their right to opt out, but recipients
of the latter type of notice may be more likely to exercise that option. As a result, the type
of notice that a school elects to provide has been a subject of debate.¹²
In addition, the notification provision has become controversial in part because
schools have interpreted parental responses in different ways. For example, if parents fail
to respond to the notice informing them of their right to opt out of the release of student
information, some schools interpret the lack of response as indicating that the parent does
not wish to opt out, while other schools interpret a lack of response as signifying that the
parent does want to opt out. As a result, some interest groups have pressed legislators to
clarify the law with regard to this point.¹³
Equal Access to Students
In addition to requiring schools to provide access to student information, the NCLBA
also requires schools to provide access to students themselves. Specifically, schools must
provide military recruiters the same access to students as is otherwise provided to other
recruiters, such as private employers or institutions of higher education.¹⁴ As with the
notification provisions, schools have implemented the equal access provisions in a variety
of ways. For example, some schools allow extensive access, permitting recruiters to set
up information tables, visit classrooms, and freely approach students anywhere on
campus. Other schools permit a lesser degree of access, and some restrict military access
even further by forbidding information tables, requiring appointments before recruiters
can meet students, and otherwise limiting access to campus.¹⁵ Despite these variations
in school policy, schools are allowed to place as many or as few restrictions as they wish
on military recruiters, as long as schools treat such recruiters the same way they treat other
entities that wish to contact students.

¹¹ Id. at 7908(a)(2).
¹² Aratani, supra note 5, at B1.
¹³ Id.; see also, Michael Dobbs, “Schools and Military Face Off; Privacy Rights Clash With
Required Release of Student Information,” Wash. Post, June 19, 2005, at A3.
¹⁴ 20 U.S.C. § 7908(a)(3).
¹⁵ Dobbs, supra note 13, at A3.

Legal Concerns
As noted previously, some opponents of the NCLBA military recruitment provisions
have raised legal concerns about the new requirements. In particular, some critics have
questioned whether the recruitment provisions violate a student’s right to privacy, but
neither statutory nor constitutional analysis appears to support this argument. Indeed,
from a statutory perspective, the NCLBA provisions regarding release of student contact
information are, as noted above, entirely consistent with FERPA, the longstanding law
that protects the educational privacy rights of students. Likewise, the NCLBA military
recruitment provisions, for the reasons discussed below, do not appear to raise
constitutional concerns.
Under the auspices of the Fourteenth Amendment,¹⁶ the Supreme Court has
recognized that there is a constitutional right to privacy that protects against certain
governmental disclosures of personal information,¹⁷ but it has not established the standard
for measuring such a violation. In the absence of explicit standards, the circuit courts
have tended to establish a series of balancing tests that weigh the competing privacy
interests and government interests in order to determine when information privacy
violations occur.¹⁸
In Falvo ex rel. Pletan v. Owasso Independent School District No. I-011,¹⁹ the Court
of Appeals for the Tenth Circuit weighed the plaintiff’s claim that peer grading and the
practice of calling out grades in class resulted in an impermissible release of her child’s
education records in violation of FERPA. The plaintiff also claimed that the practice of
peer grading violated her child’s constitutional right to privacy. Although the court, in
a holding that was later reversed by the Supreme Court,²⁰ ruled that the practice of peer
grading violated FERPA, the Tenth Circuit denied the plaintiff’s constitutional claim. In
rejecting this claim, the court applied a three-part balancing test that considers “(1) if the
party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves
a compelling state interest, and (3) if disclosure can be made in the least intrusive
manner.”²¹ Based on the first prong of this test, the Tenth Circuit rejected the plaintiff’s
constitutional claim because it ruled that student’s school work and test grades were not
highly personal matters that deserved constitutional protection.²²
Like peer graded student homework assignments, the release of student names,
addresses, and telephone numbers to military recruiters would probably not be viewed by
a court as violating a student’s constitutional right to privacy under such a balancing test.

¹⁶ U.S. Const. amend. XIV, § 1.
¹⁷ Whalen v. Roe, 429 U.S. 589 (1977).
¹⁸ See, e.g., Flanagan v. Munger, 890 F.2d 1557, 1570 (10th Cir. 1989); Plante v. Gonzalez, 575
F.2d 1119, 1134 (5th Cir. 1978).
¹⁹ 233 F.3d 1203 (10th Cir. 2000).
²⁰ Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426 (2002).
²¹ Falvo ex rel. Pletan v. Owasso Indep. Sch. Dist. No. I-011, 233 F.3d 1203, 1208 (10th Cir.

2000).

²² Id. at 1209.

Unlike Social Security numbers or medical records, for example, it is unlikely that a court
would hold that individuals have a legitimate expectation of privacy in the type of basic
contact information that is typically found in a phone book. Furthermore, the government
could argue persuasively that the release of such information serves a compelling state
interest in facilitating the maintenance of the nation’s armed forces. Finally, a court
would probably view the disclosure required by the NCLBA as minimally intrusive, given
that students can either opt out of the information release or decline to join the military,
or both.
Ultimately, a court reviewing any privacy based challenge to the NCLBA military
recruitment provisions would be likely to reject such a claim, especially in light of the fact
that Congress was clearly acting within the scope of its constitutional authority when it
enacted the military recruitment provisions of the NCLBA. Under the Spending Clause
of the Constitution,²³ Congress frequently promotes its policy goals by conditioning the
receipt of federal funds on state compliance with certain requirements. Indeed, the
Supreme Court “has repeatedly upheld against constitutional challenge the use of this
technique to induce governments and private parties to cooperate voluntarily with federal
policy,”²⁴ and the Court recently reaffirmed this principle when, in response to a First
Amendment challenge, it upheld similar military recruitment provisions that apply to
colleges that receive federal funds.²⁵ Thus, the Court would likely uphold the NCLBA
provisions in part on the basis of congressional authority under the Spending Clause.²⁶

²³ U.S. Const. art. I, § 8, cl. 1.
²⁴ Fullilove v. Klutznick, 448 U.S. 448, 474 (1980).
²⁵ Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 126 S. Ct. 1297, 1306-07 (U.S.

2006).

²⁶ A search of the legal database Lexis-Nexis for cases involving challenges to the NCLBA
military recruitment provisions revealed no results.