A reader from New Hampshire wrote me recently: "I have just received a letter from my son's high school telling me that the "No Child Left Behind Act" has a section 9258 that is titled "Armed Forces Recruiter Access To Students" and that unless parents tell the school not to, they will by this Act, provide to requesting military recruiters all the names and addresses and phones of junior and senior students." [...] The statute requires every "local educational agency" that receives assistance under the Act (which they all do) to provide student records, upon request, to the military.
However, the clause that allows parents to opt-out is not as clear as it appears. The provision reads: "A secondary school student or the parent ... may request that the student's name, address, and telephone listing ... not be released without prior written parental consent, and the local educational agency ... shall notify parents of the option to make a request and shall comply with any request." [...] For two reasons, it is not clear that the opt-out clause is even viable. First, the language of the rest of the statute requires absolute compliance. Under the rules of statutory interpretation, used by all courts in interpreting the meaning of statutes, an individual clause must be interpreted in the light of the whole. The provision as a whole states quite clearly that access "shall" be given to army recruiters. No ifs, ands, or buts.
Second, the opt-out language is extremely vague. It says that parents may request that the student's information "not be released without prior written parental consent," and that the school "shall comply with any request." Does it mean that the school must refuse to release records to the army if a parent objects? This is the most favorable reading from a parents' point of view, but it is not the only possible reading. The reading Ashcroft is likely to put forth, if not now then sooner or later, is not that a parent can refuse, but that the school must merely obtain the parent's signature first before releasing the records.
In other words, the Act seems to imply that the records must be released either way.
Well, two things: First, she has a couple numbers reversed; the relevant subpart is actually SEC. 9528. ARMED FORCES RECRUITER ACCESS TO STUDENTS AND STUDENT RECRUITING INFORMATION
Second, her later fulmination, which I did not quote, entitled "Military Rule" is just wrongheaded. Whether one wants to admit it or not, the government and all its parts is/are "a prospective employer"; a job in the military is just as much a job as any other gainful employment. If you allow other prospective employers, and you have no religious or other objections, you really have no business denying the military or any other part of the government. You don't have to like the military to acknowledge that fact. (That said, it's likely to be only the military; I don't think the lower civil service does that much recruiting, and above that, you usually need college degrees.)
It also strikes me that, either way you read it, the opt-out clause both has, and does not have, actual teeth (well, you know what I mean). Either the parent's clear (and probably written) refusal is required, or the parent's clear and written consent is required. I'd wager it probably really is the former; that's more likely to get more names, since opt-out is more difficult to get people to do than opt-in. In any event, if consent is required, and parents do not sign, then you can't release the data. If refusal is required, and parents sign, then you also cannot release the data. If the military tries for the most liberal reading, schools are fairly certain to sue, if only to gain clarification of the statute
That said ... I do wonder what the government will do if they should run into, say, a small high school that doesn't normally allow recruitment of any sort on its campus. It doesn't seem like it would be that unusual, really. If it's not a religious objection, even if the school doesn't allow on-campus recruitment and doesn't give out addresses, it doesn't seem like this statute would allow them to refuse to give those addresses to the military.
Interestingly, the statute allows the student themselves to refuse ... sort of. It allows the student to request that their information not be released "not be released without prior written parental consent". In other words, you can ask your parents to keep the army from recruiting you. What a very odd way to handle it.
To be honest, the sections about school prayer and the Boy Scouts strike me as more objectionable than the armed forces recruitment section. The Boy Scouts is purely a philosophical issue, to be sure; apparently, a school is forced to allow an acknowledged "patriotic society" to meet in its facilities if it allows any outside group to meet. Not all groups, you understand; only the patriotic ones. Apparently, only certain groups are created equal when it comes to access to school facilities.
The school prayer part that they sneaked in, though ... that's really very impressive. Thing is, when it comes to public schools, there is pretty much no constitutionally protected school prayer. You can pray to yourself silently. That's about it, really. And yet public schools are apparently expected to certify that they allow students to participate in prayers which are not constitutionally allowed. I wonder exactly how that works. Maybe you send in a little typewritten thing: "Dear Departments of Education and Justice: We hereby certify that we have allowed students to participate in school prayer as allowed by the constitution. Sincerely, Mr/Ms Superintendent of Schools, A Public School System. P.S.: There is no constitutionally protected school prayer, you morons. M.S.S."Posted by iain at September 26, 2002 04:00 PM