Access to Secondary Students
20 USC §7908
Date of Issue: September 1, 1997
Date of Review: November 2023 (revised - March 1, 2023) (revised - June, 2008) (revised-formerly BEC 20 USC §9528), December, 2002 (revised-formerly BEC 20 USC §20221, issued September 1, 1997)
Purpose
The Pennsylvania Department of Education interprets section 8528 of the Every Student Succeeds Act (ESSA) (relating to Armed Forces Recruiter Access to Student and Student Recruiting Information), 20 USC § 7908, and Pennsylvania statute (relating to Armed Forces Recruiting), 51 P.S. §§ 20221-20225, in the following manner:
Access to Student Recruiting Information
Pursuant to ESSA, each local educational agency (LEA) receiving assistance under ESSA shall provide, upon a request made by a military recruiter or an institution of higher education (IHE), access to the name, address, and telephone listing of each secondary school student served by the LEA, unless the parent of such student (or the student if he or she has attained 18 years of age) has submitted a written request to the LEA to opt out of the disclosure of such information, in which case the information may not be released without the parent's (or the student's) prior written consent. LEAs are encouraged to release student information to military recruiters in October and November to align with the time period when LEAs traditionally provide this information to IHEs.
Under Pennsylvania law, directory information consisting of a list of senior male and female students by name, home address and, if published, telephone number must be provided to armed forces recruiters for recruiting purposes only. The list shall be compiled by the first day of the academic year in which the senior students will graduate.
Notification and Consent
The Family Educational Rights and Privacy Act (FERPA) protects the privacy of a student's education records. FERPA also allows LEAs to release directory information of their students without consent as long as they make notice to parents and eligible students of the release of such information and allow them a reasonable amount of time to request that the school not disclose directory information about them.
Under FERPA, each LEA must notify the parents of the students served by the LEA (or the students, if they have reached 18 years of age) of the option to make a request to opt out of the disclosure.
LEAs may not use an "opt-in" process, a “passive opt-out" process, or any other process other than the opt-out process described in the law as a means to withhold access to a student's name, address, and telephone listing from a military recruiter or an IHE. This type of student information, commonly referred to as "directory information," includes such items as names; addresses; telephone listing; date and place of birth; participation in officially recognized activities and sports; and dates of attendance (i.e., the period of time during which the student attends or attended an educational agency or institution and not daily attendance records). The notice must include an explanation of a parent's right to request that the information not be disclosed without prior written consent.
Additionally, Section 8528 requires that parents be notified that the LEA routinely discloses names, addresses, and telephone numbers to military recruiters upon request, subject to a parent's request not to disclose such information without written consent.
Please note that an LEA may have separate notices if it prefers. If an LEA does not disclose directory information under FERPA, it must still provide military recruiters and IHEs, upon request, access to secondary school students' names, addresses, and telephone listings, and must notify parents (or students who have reached 18 years of age) that they may submit a written request to opt out of this disclosure. In other words, an LEA that does not disclose directory information must nonetheless provide a notice that it discloses information to military recruiters and IHEs.
If an LEA combines its FERPA directory information notification and the military recruiter/IHE notification, and a parent opts out of providing access to the student's name, address, or telephone listing to third parties, then that parental opt-out also applies to requests from military recruiters or IHEs for access to the student's name, address, or telephone listing. For example, if the opt-out states that the student's telephone number may not be disclosed to the public, then the LEA may not disclose the student's telephone number to military recruiters or IHEs. Even if an LEA has not designated one or more of the three items – name, address, and telephone listing – as "directory information" under FERPA, it still must provide all three items to military recruiters and IHEs, upon request, unless the parent or student over 18 years of age has submitted a written request to the LEA to opt out of such a disclosure. Also, in that case, the LEA would have to send a separate notice to parents or students over 18 years of age about any of the three items that the LEA has not designated as "directory information," notifying them of their right to submit a written request to opt out of the disclosure of the information to military recruiters and IHEs. An LEA may simplify this process by designating all three items – name, address, and telephone listing – as "directory information."
Under section 8528 of ESSA, a request to the LEA to opt out of the disclosure of the specific information must be in writing and only a parent of a secondary school student may submit such a written request until the secondary school student has reached 18 years of age, when the right to submit such a written request and to provide prior written consent transfers from the parent to the secondary school student. (Section 8528 of ESSA also requires that this same information be provided to IHEs upon request, unless the parent of the secondary school student, or the secondary school student if the student has reached 18 years of age, requests in writing to opt out of the disclosure of this information, in which case the information may not be released without the parent's or the student's prior written consent.)
Same Access to Students
Each LEA receiving assistance under ESSA must provide military recruiters the same access to secondary school students as is provided generally to IHEs or to prospective employers of those students.
Under Pennsylvania law, each school district shall provide military recruiters the same access to senior students as is available to IHEs and trade schools.
Student directory information will be used specifically for armed services recruiting purposes and for informing young people of scholarship opportunities.
Private Schools
The requirements of section 8528 of ESSA 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 corporate or other organizational documents or materials of that school.
The governing body of a parochial, licensed private and nonpublic school shall determine whether to comply with the provisions of the state law related to armed forces recruiting (51 P.S. §§ 20221-20225).
Non-compliance (with both federal and state requirements)
Under Pennsylvania law, any refusal to provide the requested information is a summary offense, which may subject the offender to a $100 per day fine for the duration of the violation.
Under United States Military Law, the sequence of actions for non-compliance is as follows:
- A senior military executive (Colonel or higher rank) from the Department of Defense is required to personally meet with representatives of the LEA for the purpose of arranging for recruiting access. The designated military officer shall seek to arrange this meeting within 120 days of the date of the denial of the request for recruiting access.
- If access is not afforded within 60 days of the senior military executive visit, the Secretary of Defense must notify in writing the Governor of the state in which the noncompliant school is located.
- If military recruiters are not afforded equal access within 1 year of notification of the Governor's office, the name of the school will be given to Congressional Education and Defense oversight committees, the Senators of the State and the member of the House of Representatives who represents the district in which the LEA is located, if the Secretary of Defense determines that the LEA has denied recruiting access to at least two of the armed forces (Army, Navy, Marine Corps, etc.).
Additionally, non-compliance with Section 8528 of ESSA, 20 USC §7908, may result in the loss of educational federal funding.
Reimbursement of Costs
Under Pennsylvania law, reimbursements from armed forces recruiters are permitted for any costs incurred in complying with the law, if written documentation of expenses is provided.
References
Purdon’s Statutes
51 P.S. §§20221-20225
Federal Statutes
20 USC §7908
20 USC §1232g
10 USC §503, as amended by §544 of the National Defense Authorization Act for Fiscal Year 2002
Federal Regulations
34 CFR, Part 99
Bureau/Office Contact
School Services Office
Pennsylvania Department of Education - Office of Elementary and Secondary Education
607 South Drive | Harrisburg, PA 17120
Phone: 717-787-4860 | Fax: 717-214-4389
RA-PDE-SchoolService@pa.gov