[Winona Online Democracy]
Below is copied a letter that a teacher in the Twin Cities metro area
sent to their School Board. I looked up the law to be sure and it is
copied below as well.
This law has been in existence for several years. It applies to our
local public high schools and, I suspect, even the private schools who
in some way derive a benefit from federal school funding - since the
only exceptions listed are religious schools operated by a religion
officially opposed to membership in the Armed Forces.
This law says that principals, school administrators and other educators
be informed of this law. I wonder who knows about it.
This law provides for access to student data WITHOUT parental knowledge
or consent. You can deny access without prior consent but you have to
know about your rights first. Usually data privacy laws say your data
is private UNTIL you sign a release. This one says it is available to
recruiters unless you act to deny that access.
I have the same questions as the teacher about how parents are informed
and what methods are available for this. I could find nothing about
this on the WAPS web site but it is likely in a Policy. I still wonder
if teachers and parents know about this.
I searched the State Education Dept. web site and I pasted at the end of
this the Admin. Opinion from 2001 that seems to try to put State law and
the Federal Law together in an answer to a question posed by a School
District.
I just realized that in this day of so much emotional debate about what
patriotism is, etc. that my just asking these questions will be taken by
some as some radical anti-war, anti-US effort. That's not true and I
hope the issue of data privacy and parent's rights is seen as the focus.
Craig Brooks
xxxxxxxxxxxxxxxxxxxxLetter to metro area school boardxxxxxxxxxxxx
"Dear Mr. xxxx and the board of education,
I recently learned that the Leave No Child Behind Act has a section
requiring high schools to turn over student information to military
recruiters.
Buried deep within the No Child Left Behind Act is a provision that
requires public high schools to hand over private student information to
military recruiters. This provision known as section 9528 was inserted
into the No Child Left Behind Act to get around public schools that had
strict privacy policies protecting student information from being
released to any outside parties. The purpose of section 9528 is to
allow minor students to be aggressively recruited at home by telephone
calls, mail and personal visits. If a school does not comply, it risks
losing vital federal education funds. Parent can keep their own children
from being contacted by military recruiters by submitting an "opt-out"
letter in writing to the school district's superintendent. Recently
military recruiting was suspended for a day as recruiters received a
much-needed ethics training. This followed allegations that recruiters
have used deceptive and intimidating tactics - in one case, threatening
a potential enlistee with arrest for backing out when he had the legal
right to do so.
It is bad enough that the No Child Left Behind Act promised but never
delivered desperately needed funding. It also exposes minor children to
aggressive military recruiters.
I am interested in our school districts OPT OUT procedures in reference
to section 9528. Are parents given a notice of the option to OPT OUT?
How is that done? Are OPT OUT forms given to parents? I was not able
to find any information on the district's web site about this policy.
Thank you for your time in answering my questions."
********************Federal Law***************
I looked up Section 9528 -
http://www.ed.gov/policy/elsec/leg/esea02/pg112.html#sec9521
SEC. 9528. ARMED FORCES RECRUITER ACCESS TO STUDENTS AND STUDENT
RECRUITING INFORMATION.
(a) POLICY-
(1) ACCESS TO STUDENT RECRUITING INFORMATION-
Notwithstanding section 444(a)(5)(B) of the General Education Provisions
Act and except as provided in paragraph (2), each local educational
agency receiving assistance under this Act shall provide, on a request
made by military recruiters or an institution of higher education,
access to secondary school students names, addresses, and telephone
listings.
(2) CONSENT- A secondary school student or the parent of
the student may request that the student's name, address, and telephone
listing described in paragraph (1) 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.
(3) SAME ACCESS TO STUDENTS- Each local educational agency
receiving assistance under this Act 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.
(b) NOTIFICATION- The Secretary, in consultation with the
Secretary of Defense, shall, not later than 120 days after the date of
enactment of the No Child Left Behind Act of 2001, notify principals,
school administrators, and other educators about the requirements of
this section.
(c) EXCEPTION- The requirements of this section do not apply to a
private secondary school that maintains a religious objection to service
in the Armed Forces if the objection is verifiable through the corporate
or other organizational documents or materials of that school.
(d) SPECIAL RULE- A local educational agency prohibited by
Connecticut State law (either explicitly by statute or through statutory
interpretation by the State Supreme Court or State Attorney General)
from providing military recruiters with information or access as
required by this section shall have until May 31, 2002, to comply with
that requirement.
**************************State legal opinion*******************
here is the printer-friendly version of the page you were viewing.
The original page can be found on-line at
http://www.ipad.state.mn.us/opinions/2001/01078.html
2001 OPINIONS
Minnesota Department of Administration
Advisory Opinion: 01-078
This is an opinion of the Commissioner of Administration, hereinafter
"Commissioner," issued pursuant to Minnesota Statutes, section 13.072
(2000). This opinion is based on the facts and information available to
the Commissioner as described below. All correspondence and other
information relied on by the Commissioner in issuing this opinion are on
file in the office of the Information Policy Analysis Division (IPA) of
the Department.
Facts and Procedural History:
For purposes of simplification, the information presented by the person
who requested this opinion and the response from the government entity
with which the person disagrees are presented in summary form.
On September 4, 2001, Stephen M. Knutson and Michelle D. Kenney,
attorneys representing Independent School District No. 279, Osseo, (the
District) requested an advisory opinion from the Commissioner of
Administration. The request, as detailed in the Issue statement below,
deals with access to data about 11th and 12th grade students by military
recruiters.
In making the request, Mr. Knutson and Ms. Kenney identified a new
provision of Minnesota law, Minnesota Statutes, section 13.32,
subdivision 5a, and asked how the district should respond to this new
language as the District has received a request from a military
recruiter for access to student data.
Issue:
In the request for an opinion, Mr. Knutson and Ms. Kenney asked the
Commissioner to address the following issue:
Since Minnesota Statutes section 13.32, subdivision 5a mandates the
release of data regardless of whether it is designated as "directory
information" by the School Board's policy, is a School District
obligated to respond to a request for data under this provision at all
and, if so, to what extent?
Discussion:
The Issue Statement poses a preliminary issue that must be resolved.
That issue is whether the District is required to respond to any request
for data made according to section 13.32, subdivision 5a. The
Commissioner has previously addressed the requirement that a government
entity provide a response to a request for access to government data.
See, for example, Advisory Opinions 00-040, 00-041, 00-059 and 01-023.
Therefore, the District must provide a response to a request for data
made according to section 13.32, subdivision 5a.
Data about students in public schools is governed by both federal and
state law. The federal law, the Family Educational Rights and Privacy
Act, 20 U.S.C. section 1232g, (FERPA) provides that data about students
are private. This classification of the data is echoed in Minnesota
Statutes, section 13.32. FERPA also gives parents access to their
children's school data and the ability to determine who receives access
to that data. 20 U.S.C. section 1232g (a)(1)(A) and (b).
Congress did provide some exceptions so that certain disclosures could
be made and those are detailed in the federal regulations that are found
at 34 CFR part 99. Minnesota has generally followed these exceptions and
the state provisions can be found within Minnesota Statutes, section
13.32. The Minnesota Legislature's ability to act in the area of access
to and dissemination of school data is limited by the provisions of
FERPA and the accompanying regulations.
During the 2001 session, the Legislature enacted Minnesota Statutes,
section 13.32, subdivision 5a. The language became effective August 1,
2001 and it reads:
Subd. 5a. [MILITARY RECRUITMENT.] A secondary institution shall
release to military recruiting officers the names, addresses, and home
telephone numbers of students in grades 11 and 12 within 60 days after
the date of the request, except as otherwise provided by this
subdivision. A secondary institution shall give parents and students
notice of the right to refuse release of this data to military
recruiting officers. Notice may be given by any means reasonably likely
to inform the parents and students of the right. Data released to
military recruiting officers under this subdivision:
(1) may be used only for the purpose of providing information to
students about military service, state and federal veterans' education
benefits, and other career and educational opportunities provided by the
military; and
(2) shall not be further disseminated to any other person except
personnel of the recruiting services of the armed forces.
The issue which now must be addressed is whether the Minnesota
Legislature has the ability to mandate the disclosure of the specified
data to military recruiters given the limitations imposed by FERPA.
FERPA does provide a mechanism by which some data about students may be
made public. This type of public data is known as "directory
information." 20 U.S.C. section 1232g (a)(5) and 34 CFR section 99.37.
FERPA provides that the school board must determine what data elements
about students are not considered harmful or an invasion of privacy if
disclosed. 20 U.S.C. section 11232g (a)(5). The data elements that the
U.S. Department of Education has offered as examples to a school board
for consideration as "directory information" include:
student's name, home address, telephone number, email address,
photograph, date and place of birth, field of study, dates of
attendance, grade level, enrollment status, participation in officially
recognized activities and sports, weight and height of members of
athletic teams, degrees, honors and awards received and the most recent
educational agency or institution attended.
34 CFR section 99.3 (definition of "directory information," as amended
and effective August 7, 2000).
The school board is free to choose which of the data elements it wants
to designate as "directory information," to make its determination of
what constitutes "directory information" once each year, and notify
parents of its decision. 34 CFR section 99.7. Parents are also given the
option to have the "directory information" about their children not be
public and the school district must have a way to honor such a request.
34 CFR section 99.37. "Directory information" is public data in
Minnesota and must be provided to anyone who asks. Minnesota Statutes,
section 13.32, subdivision 5.
Access to student data by military recruiters is an issue that has
received attention in Congress for many years. Congress has addressed
the issue in 10 U.S.C. section 503 and there is a difference in the
access recruiters are granted to students in higher education
institutions and those in secondary schools (i.e. 9-12 grades). The
Commissioner will focus on those provisions relating to students in
secondary schools.
Section 503 provides that the Secretary of Defense may collect directory
information about students 17 years of age or older or in the 11th grade
or higher. 10 U.S.C. section 503(b)(1) (emphasis added). Paragraph
(b)(6) further provides that the Secretary cannot require a school to
furnish "directory information." In 2000, Congress amended section 503
to adopt the definition of "directory information" used in FERPA. In
other words, the data elements that are available to the Secretary of
Defense are those data elements designated by the local school board as
"directory information."
The issue presented by the Minnesota Legislature's adoption of section
13.32, subdivision 5a is that by using the word "shall," it appears that
school districts are required to provide the names, addresses and
telephone numbers of students in the 11th and 12th grades to military
recruiters. FERPA says that those elements of data are available only
with the consent of the parents or if they are part of what the school
board has designated as "directory information." When, as is the case
here, federal law has been adopted in a subject area, federal law
controls if state law is in conflict. Forster v. R J Reynolds Tobacco
Co., 437 N.W.2d 655,658 (Minn. 1989) citing Silkwood v. Kerr-McGee
Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984).
The District has indicated that its school board has, of the three data
elements in section 13.32, subdivision 5a, designated student name and
address as "directory information." The District has also provided the
notice to parents of their right to refuse release of student data to
military recruiters. The District has a request from a military
recruiter for data about 11th and 12th graders. To respond to the
request, the District may provide those data that meet all the following
criteria:
1) data elements designated as "directory information" pursuant to 34
CFR section 99.37;
2) data about those students whose parents have not chosen to generally
restrict access to "directory information" about their children pursuant
to 34 CFR section 99.37; and
3) data about those 11th and 12th graders whose parents have not refused
release of data to military recruiters pursuant to Minnesota Statutes,
section 13.32, subdivision 5a.
Opinion:
Based on the facts and information provided, my opinion on the issue
raised by Mr. Knutson and Ms. Kenney is as follows:
The School District is obligated to respond to a request for data under
Minnesota Statutes section 13.32, subdivision 5a and to provide those
data that the District has designated as "directory information" for
those students whose parents have not chosen to restrict access to
"directory information" about their children generally and for those
11th and 12th grade students whose parents have not refused to release
data to military recruiters.
Signed:
David F. Fisher
Commissioner
Dated: September 28, 2001
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