No Child Left Behind and Military Recruitment in High Schools: When Privacy Rights Trump a...

I. INTRODUCTION

Military recruiters today have extensive access to high school students and their personal information. The No Child Left Behind Act1 (NCLB) and the National Defense Authorization Act for Fiscal Year 20022 mandate that local educational agencies3 allow military recruiters access

to secondary students' personal contact information.4 Schools must also provide recruiters the same access to students that post-secondary educational institutions and potential employers are afforded.5 Schools that violate these provisions risk the loss of federal funding6 along with intervention by the Department of Defense, the local educational agencies' elected representatives, and certain Congressional committees.7

While parents may request in writing that their children's information not be disclosed to recruiters,8 schools must disclose students' information until such a request is made.9 Moreover, because recruiters are given the same access to students as are post-secondary educational institutions and other prospective employers, parents lack control over their children's exposure to recruiters. These mandates are troubling because they constitute a governmental intrusion into families' fundamental rights to privacy, or familial autonomy, which encompasses parents' rights to care for, rear, and control their children as they choose.

Exposure to military recruiters may conflict with a family's moral, religious, or other objection to military service.10 This additional exposure to military recruiters and aggressive recruiting tactics can influence the career paths of impressionable young adults. Without parents' knowledge of this exposure and influence, they may be deprived of an opportunity to start a meaningful dialogue at home about the pros and cons of military service.

Military recruitment in schools is of critical importance today given the U.S.'s active military operations in Iraq and Afghanistan, the high death toll" as a result of those operations, troop shortages, military recruiting difficulties, and tenuous relations with North Korea and Iran. In light of these tumultuous current events, the right of privacy is essential so that parents can help their children make appropriate decisions about their futures, free from governmental intrusion.

Parents must also be able to protect their children from overly-aggressive recruiting tactics and wrongdoing by recruiters. The Government Accountability Office conducted a study in response to reports of recruiters' overly-aggressive tactics. The study found that during fiscal year 2004-2005, alleged incidents and armed services-identified incidents of recruiter wrongdoing increased from 4,400 cases to 6,600. During this period criminal violations doubled.12 Further, the GAO found that the armed services lacked adequate oversight of recruiters to know the full extent of these violations and to prevent irregularities.13 Therefore, it is imperative that parents know recruiters have access to their children and that their consent is presumed.

Unless and until the courts strike down or Congress amends this provision, teachers and administrators must ensure students and their families know recruiters have access to their information and that they can opt out of sharing it, if they choose. Teachers and administrators, who are also influential in students' career paths after high school, need to be aware of the reach of recruiters and work with parents to ensure students make thoughtful and well-informed decisions. This may be achieved by providing information and encouragement regarding other choices that may be better suited for a student considering military service or impartially discussing the possibility of military service.

II. OVERVIEW OF THE POLICY

Under NCLB and the National Defense Authorization Act, recruiters have access to secondary students' names, addresses, and telephone numbers unless parents request otherwise.14 Schools must inform parents of this only once and through "any method that is reasonably calculated" to inform them that recruiters will have access to their children's names, addresses, and phone numbers. 15 This one-time only notification must explain how to deny consent and the deadline for doing so.16

Schools must also provide the same access to recruiters it provides to post-secondary educational institutions and other prospective employers.17 Schools often host functions, such as career or college fairs, in which recruiters from schools and employers visit to talk with students about their organizations and distribute information. Schools also often allow these types of representatives to visit during the school day. Regardless of an individual school's policies regarding how educational and non-military employment recruiters are given access to students, military recruiters are entitled to the same access under the NCLB Act.18 For this provision, the NCLB Act does not provide for parents to be able to opt out. Therefore, even if parents can choose not to expose their children to visits or phone calls from military recruiters by choosing not to release that information, they have no control over whether recruiters talk with their children at school or school functions where college or job recruiters are present.

Additionally, since recruiters are entitled to the "same access,"19 if parents deny consent to release their children's names, addresses, or phone numbers to outside sources so as to avoid military recruiters, the result is that the school may not release them to post-secondary educational institutions and other prospective employers either. Therefore, when parents act to protect their children from the influence of military recruiters, a consequence is that students may not receive information from other desired sources, such as colleges, through their schools' release of their information to those sources.

Schools that violate the NCLB and National Defense Authorization Acts risk losing federal funding.20 Additionally, under the National Defense Act, officials from the Department of Defense, the local educational agencies' Congressional representatives, their Senators, their governor, and certain Congressional committees are notified to intervene in cases of non-compliance.21 The pressure that would be placed on a noncompliant local educational agency and the consequences of non-compliance would be enormous. Not only would a local educational agency suffer from a lack of federal funding, its elected officials would likely anticipate political repercussions over a loss of federal funding and pressure the agency to comply. Therefore, it would be virtually impossible for local educational agencies to refuse compliance. Indeed, the evidence shows that most schools do comply. The Department of Education reported in late 2002 that 95 percent of all secondary schools allowed a legally-compliant "degree of access" to military recruiters.22

III. THE RIGHT TO FAMILY PRIVACY AND ITS PROTECTIONS

This military recruitment policy in schools strikes at the heart of the constitutional right to privacy and the fundamental due process interests of parents in controlling their children, rearing their children, and determining who has access to their children. The United States Supreme Court has recognized the right to privacy in certain zones, including many situations relating to family autonomy and decision-making.23 One area in which the Court has long held that parents have a Fourteenth Amendment right to privacy is decision-making about their children's upbringing and education.24 In a case decided in 2000, the Court held that parents have a fundamental right to make decisions regarding the care, custody, and control of their children, including who, outside the nuclear family, may have access to their children. M This is because fit parents are presumed to have their children's best interests in mind.26

Fundamental rights are protected against governmental action, regardless of whether the procedures used to implement the action or policy are fair.27 Therefore, a law that implicitly or explicitly infringes on a fundamental Constitutional right is presumptively unconstitutional.28 To determine whether there is an infringement on a right, the Court considers the "directness and substantiality of the interference."29 If an infringement on a fundamental right is found, it requires strict scrutiny of the government's infringement on that right.30 For the government's infringement to be upheld, it must support a compelling government interest and be narrowly tailored to "effectuate only those interests,"31 allowing the goveminent only "limited leeway" to do so.32 Moreover, the means selected by the government to achieve its objective cannot impinge on the right in question.33

IV. THE LAWS' EFFECT ON THE POLICY

The law at issue here presumes parental consent for military recruiters to access secondary school children to persuade them to engage in military service after high school. Parents may revoke their consent for information to be released, but consent is assumed until it is revoked. This is problematic because schools may inform parents of their right to opt out through "any means that is reasonably calculated" to inform them, including burying this information in a student handbook or handing out a notice at the beginning of a student's freshman year of high school with a myriad of other forms.34 Therefore, parents may not know that military recruiters have access to their children's information and that their consent has been assumed. Additionally, students may come in contact with recruiters at school or during career and college fairs, and parents have no way of denying consent for this. Essentially, this policy wrests control away from parents, thus implicating their fundamental rights to familial autonomy.

Next, the directness and substantiality of the interference with this right must be evaluated to determine whether there is an infringement. The government's representatives obtain students' information and contact them in order to persuade them to engage in military service after high school. They may also meet with students at events to which other types of recruiters have access. Parents are not asked to give permission to recruiters to contact their children. Instead, in the case of student information, recruiters are entitled to access and influence students unless and until parents invoke their right to deny consent, and children of parents who are unaware of this provision may be contacted against their parents' wishes. Moreover, parents have no way of knowing about or choosing to deny consent for their children meeting recruiters at the functions to which they have access. Thus, parental control is diminished by this policy and constitutes a direct and substantial interference with that fundamental right because it assumes parental consent until it is revoked. Therefore, this policy in the law is presumptively unconstitutional.

Military recruitment is no doubt a compelling and legitimate governmental interest. The policy in question supports that interest; however, the means chosen by the government to effectuate military recruitment are not the least-restrictive possible. Military recruitment can be achieved in narrower ways that do not infringe on family autonomy. Instead of a presumption of parental consent, parents should have to provide consent if they want their students to receive information from and be contacted by military recruiters. Military recruiting and college and job recruiting should also be held separately so that parents will know who will be recruiting their children at an event. With these policies, parents would then have the opportunity to make the informed choice whether to allow their children to interact with military recruiters and to thoughtfully consider and discuss with their children the possibility of military service after high school. Such a procedure would comport with the fundamental right of parents who desire to raise their children with certain religious beliefs or other values without governmental interference to the contrary. As it stands, this NCLB Act provision violates parents' rights to familial autonomy.

V. SOLUTIONS TO PROTECT STUDENTS AND FAMILIAL AUTONOMY

There are proactive steps concerned administrators and teachers can take, above and beyond the requirements of the law, to counteract the negative effects of this mandate unless and until Congress or the courts determine this practice is unconstitutional. Since parents must preemptively opt out of the release of their children's personal information to recruiters, high school administrators should inform students and parents of this requirement and make the appropriate forms available at the beginning of each school year. In doing so, parents can make choices for their families consistent with their beliefs and values and help their children plan for the future without recruiters' undue influence. Those forms should continue to be readily available throughout the school year for students and parents who may later decide to opt out.

Administrators, guidance counselors, and faculty must also work with parents to balance the increased influence of military recruiters to ensure students make an appropriate and informed career path decision, which may or may not include military service. Students should be provided with information and mentoring regarding college, technical college, and community college, as well as alternatives to military service for funding their educations. Students should also be counseled about the drawbacks of military service and about the profound choice they are making, especially given the allure of college scholarships, signing bonuses, and promises of adventure offered by recruiters.

VI. CONCLUSION

The military recruiter access policy of the NLCB Act and the National Defense Authorization Act of 2002 provides broad access to high school students for military recruiters. This policy is problematic because it infringes on a fundamental right of parents to rear their children in the way they see fit and to control who has access to their children. The current opt-out policy violates this right because it wrests control away from parents and assumes consent until it is revoked. Unless and until the Court recognizes that this violates parents' fundamental rights, teachers, guidance counselors, and administrators can take steps to ensure parents are informed about this policy and that students have information about a wide range of possibilities for the future so that each student makes appropriate choices, free from governmental intrusion.

Kate Dittmeier Holm

FOOTNOTE

1. Elementary and Secondary Schools Act of 1965, 20 U.S.C.A. § 7908 (West 2006)(enacted under the No Child Left Behind Act of 2001, 115 Stat. 1425(2002)).

2. 10 U.S.C.A. § 503 (West 2006)(enacted under the Natl. Defense Authorization Act for Fiscal Year 2002, 115 Stat. 1012 (2001)).

3. The term "local educational agency" is defined as "a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools" and "any other public institution or agency having administrative control and direction of a public elementary school or secondary school." 20 U.S.C.A. § 7801 (26)(A)(B). This term also includes "educational service agencies" and "the State educational agency in a State in which the State educational agency is the sole educational agency for all public schools." Id. at (C)-(D).

4. 20 U.S.C.A. § 7908 (a)(1); 10 U.S.C.A. § 503 (c)(l)(A)(ii).

5. 20 U.S.C.A. § 7908 (a)(3); 10 U.S.C.A. § 503 (c)(l)(A)(i).

6. Federal funding may be withheld from a local educational agency if it is in non-compliance with a federal requirement under the Elementary and Secondary Schools Act of 1965. 20 U.S.C.A. §§ 1232c, 7908 (a)(1); 10 U.S.C.A. § 503 (c)(l)(A)(i)-(ii).

7. 10 U.S.C.A. § 503 (c)(l)(B)(2)-(4)(B)(iii).

8. 20U.S.C.A. § 7908(a)(2); 10 U.S.C.A. § 503(c)(1)(B).

9. Id.

FOOTNOTE

10. Exemptions to this recruitment policy exist for private secondary schools with verifiable religious objections to military service. 20 U.S.C.A. § 7908 (c); 10 U.S.C.A. § 503(c)(5). Students with religious objections to military service who attend public schools and private schools without verifiable religious objections to military service, however, are subject to the military recruitment policy unless they opt out.

11. Currently, Operation Iraqi Freedom U.S. military casualties total 3,000 dead and 21,714 wounded in action. Department of Defense, Casualty Reports, http://www.pentagon.mil/ news/casualty.pdf (last updated Jan. 8, 2007). In Operation Enduring Freedom in and around Afghanistan, U.S. military casualties total 296 dead and 1084 wounded in action. Id. (last updated Dec. 30, 2006).

12. Government Accountability Office, Military Recruiting: DOD and Services Need Better Data to Enhance Visibility over Recruiter Irregularities, http://www.gao.gov/new.items/ d06846.pdf (Released Aug. 8, 2006).

13. Id.

FOOTNOTE

14. 20 U.S.C.A. § 7908 (a)(1); 10 U.S.C.A. § 503 (c)( I)(A)(U).

15. Department of Education, Policy Guidance-Access to High School Students and Information on Students by Military Recruiters, http://www.ed.gov/policy/gen/guid/fpco/hottopics/ht-10-09-02a.html (Posted Oct. 9, 2002).

16. Id.

17. 20 U.S.C.A. § 7908 (a)(3); 10 U.S.C.A. § 503 (c)ÜXA)(i).

18. 20 U.S.C.A. § 7908 (a)(3).

FOOTNOTE

19. Id.

20. Federal funding may be withheld from a local educational agency if it non-compliant with a federal requirement under the Elementary and Secondary Schools Act of 1965. 20 U.S.C.A. §§ 1232c, 7908 (a)(1); 10 U.S.C.A. § 503 (c)( 1)(A)(i)(ii).

21. 10 U.S.C.A. § 503 (c)(l)(B)(2)-(4)(B)(iii).

22. Department of Education, Policy Guidance- Access to High School Students and Information on Students by Military Recruiters, http://www.ed.gov/policy/gen/guid/fpco/ hottopics/ht-10-09-02a.html (Posted Oct. 9, 2002).

FOOTNOTE

23. The United States Supreme Court articulated the substantive due process right to privacy and the guarantee of certain zones of privacy in Roe v. Wade, 410 U.S. 1 13, 152 (1973).

24. In Troxel v. Granville, 530 U.S. 57,65-66 (2000), the Court articulated its long history of recognizing a parent's fundamental due process right to control his or her child's upbringing and education.

25. Troxel at 66, 68, 69-72.

26. Id.

27. Collins v. Harker Heights, Tex., 503 U.S. 115, 125 (1992) (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).

28. Harris v. McRae, 448 U.S. 297, 312 (1980).

29. Zablocki v. Redhail, 434 U.S. 374, 387 (1978).

30. Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997); Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 906 (1986).

31. Glucksberg at 721; Zablocki at 388.

FOOTNOTE

32. Bush v. Vera, 517 U.S. 952, 977 (1996) (reaffirming the "narrow tailoring" requirement in Shaw v. Reno, 509 U.S. 630, 656 (1993).

33. Zablocki at 388 (held statute to be unconstitutional because despite legitimate government interests of protecting out-of-custody children and counseling fathers about the need to pay back child support, the means chosen-requiring a court order for certain classes to marry-impinged on the fundamental right to marry); Wisconsin v. Yoder, 406 U.S. 205, 214 (1971) (held that "a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests...").

34. According to the Department of Education, it is permissible for local educational agencies to inform parents through "a mailing, student handbook, or other method that is reasonably calculated to inform parents." Department of Education, Policy Guidance-Access to High School Students and Information on Students by Military Recruiters, http://www.ed.gov/policy/gen/guid/fpco/hottopics/ht-10-09-02a.html (Posted Oct. 9, 2002).