It has come to the Department’s attention that there appears to be some confusion regarding the responsibility of local educational agencies to provide military recruiters access to student recruiting information. The confusion appears to stem from the fact that there are two similar, but not identical, provisions in federal law that deal with the issue. One is contained within the General Military Law as §503 of Title 10 of the United States Code, as amended by the National Defense Authorization Act for Fiscal Year 2002, Public Law 107-107 §544 (10 U.S.C. §503[c]). The other provision is §9528 of the No Child Left Behind Act (NCLBA), Public Law 107-110 (20 U.S.C. §7908), which was enacted after the National Defense Authorization Act.

Both provisions require local educational agencies that receive federal funding under the Elementary and Secondary Education Act of 1965 (ESEA) to provide access to secondary school student names, addresses, and telephone listings upon a request made by military recruiters. Under both laws, a secondary school student or a parent of the student may request that such information not be released without prior written parental consent. Local educational agencies are required to notify parents of the option to make such a request and are required to comply with any such request. Both provisions require that military recruiters be afforded the same access to secondary school students as is provided generally to postsecondary educational institutions or to prospective employers of those students. The NCLBA, unlike the General Military Law, also requires that institutions of higher education have access to student names, addresses and telephone listing.

However, a preexisting provision within 10 U.S.C. §503 allows local educational agencies to deny access to student directory information if they have a policy in place, approved by a majority of its governing body, to deny recruiting access to students or to such directory information (10 U.S.C. § 503(c)(5)(A)). There is no comparable provision contained in §9528 of the No Child Left Behind Act (20 U.S.C. §7908) that would exempt a school district or other local educational agency whose governing board adopts a policy of denying military recruiter access.

To date, we have not received guidance from the United States Department of Education on implementation of these provisions of Federal law on military recruiting. We have been advised that such guidance will be forthcoming, and will disseminate any Federal guidance we do receive. However, the provisions of §9528 of the NCLBA are currently in effect and any school district or other local educational agency that fails to comply with its provisions on access by military recruiters and institutions of higher education risks the loss of Federal funds under the ESEA. Because there is no exception in the NCLBA for local educational agencies whose board of education or other governing body have adopted a policy to deny recruiting access, every local educational agency that has not already done so must take immediate steps to come into compliance with the Federal law.

Under §9528 of the NCLBA, parents must be notified of their option to request that a student's name, address and telephone listings not be released without prior written parental consent. No time frame is specified in the Federal law, though we recommend that the parent notification be provided as soon as possible, so that parents are given a reasonable time to request that the directory information not be released and timely access to such directory information is provided to military recruiters and institutions of higher education.