January 9, 2002—

No Child Left Behind Act of 2001

DISCLOSURE OF DATA TO MILITARY RECRUITERS

During the 2001 Minnesota legislative session, a new provision was added to Minnesota Statutes § 13.32 providing military recruiters with access to certain student data, including the name, address and phone number of eleventh and twelfth grade students. However, this new provision appeared to conflict with federal law regarding the release of student data when such data had not been designated as "directory information" by the school district. Because of this uncertainty, clarification was sought from the Minnesota Department of Administration regarding school districts' responsibilities under the new provision. In our November 6, 2001 newsletter, we advised you of Opinion 01-078 issued by the Department and discussed its implications. In this opinion, the Department opined that the new State law did conflict with the federal law and that the data obtainable by military recruiters should be restricted in accordance with the federal Family Education Rights and Privacy Act ("FERPA").

The apparent conflict between the State law and FERPA has been resolved by the President's signing of the No Child Left Behind Act. In this regard, the new federal legislation provides military recruiters with access to the name, address and telephone listing of secondary school students, even if that data has not been designated as "directory information" by the school district or where a parent or eligible student has requested that the information be classified as private data. See H.R. 1, Section 9528. Like the Minnesota law, Minnesota Statutes § 13.32, Subdivision 5a, the new federal law allows an eligible student or parent to request that the student's name, address and telephone listing not be released to military recruiters without prior written consent. School districts are required to notify parents of the option to make this request and must comply with a request that is received.

Consequently, this new law requires school districts to provide the name, address and telephone listing of secondary students to military recruiters upon request unless the parent has requested the information not be released to military recruiters without prior consent. In such case, the school district must seek to obtain the parent's written consent before releasing the data and, if the parent refuses to give such consent, not provide the data. If the parent refuses to give consent, it would be prudent to maintain some record of the parent's refusal in case further inquiry is made by the military.

EQUAL ACCESS TO THE BOY SCOUTS OF AMERICA

In June 2000, the United States Supreme Court decided Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000) holding that the Boy Scouts of America was not required to keep an assistant scoutmaster who publicly declared he was homosexual. As a result of this decision, many school districts prohibited Boy Scout groups from accessing school district facilities because of the issue of discrimination.

This discrimination issue has been addressed by new federal legislation. Section 9525 of H.R. 1 is entitled the "Boy Scouts of America Equal Access Act." It provides that any public elementary and secondary school that has a designated open forum or a limited public forum and that receives funds through the Department of Education must allow the Boy Scouts of America the same access to school premises or school facilities that it provides to other groups. The Boy Scouts of America or any group officially affiliated with it cannot be denied access to school facilities on the basis of membership or leadership criteria or oath of allegiance to God and country.

OTHER PROVISIONS OF THE ACT

There are many other new provisions as well. The Paul D. Coverdell Teacher Protection Act of 2001 provides limitations on liability for teachers, principals and other school professionals. In addition, the Unsafe School Choice Option provides students who attend an unsafe school or who become a victim of a violent criminal offense while on the grounds of a public school the option to attend a safe public school within the school district.

The lengthy No Child Left Behind Act of 2001 contains many more amendments and additions to federal education law, all of which cannot be addressed here. However, it is certain that many new issues will be raised in the area of education law by this new legislation.