Opting for 'Opt-In'

In the heart of California's traditionally anti-war Bay Area, a stubborn resistance is growing to access to high school students by military recruiters.

The rebellion comes at a time when the U.S. military is simultaneously under pressure to lift sagging enlistment numbers while coming under increasing criticism over its recruitment tactics. U.S. Army officials recently announced a one-day moratorium on recruitment, scheduled for May 20, in order to give recruiters a chance to "focus on how they can do a very tough mission without violating good order and discipline."

But federal officials are warning that any open defiance by school districts to the military recruitment guidelines contained within the 2001 federal No Child Left Behind Act will carry severe consequences: the complete loss of federal education funds.

In Alameda County, across the bay from San Francisco, school district officials are braving those consequences by promoting what at first seems like an obscure policy for military access to student records -- "opt-in."

Section 9528 of No Child Left Behind provides that "a secondary school student or the parent of the student may request that the student's name, address, and telephone listing ... not be released [to military recruiters] without prior written parental consent ... ."

When the Santa Cruz City High School District -- some 50 miles south of San Francisco -- was considering how to interpret that clause two years ago, staff attorney Ann Brick of the American Civil Liberties Union of Northern California wrote to the school board urging them to adopt the "opt-in" policy that "requires a parent's affirmative consent before such information is released to the military. ... The assumption that parents do not object to the release of this information simply because they have not expressed their wishes is very problematic. ... "

According to Dr. Robert Cervantes, the curriculum leadership manager in the California Department of Education, whose duties also include military liaison, the Santa Cruz City School District and 23 other California districts--including San Francisco Unified--adopted the "opt-in" policy around 2003.

"Both the Department of Defense and the U.S. Department of Education have categorically deemed 'opt-in' to be inconsistent with NCLB," Cervantes said. "I've seen the federal government send down a lot of policies in my years working in state agencies, but I've talked with them, and this is the one that they've really dug their heels into. They're serious about this one. There is no ambiguity. Santa Cruz came close to losing their federal funding over this. And it's not partial funding. It's all federal funding. A couple of state legislators had to intervene to get them to change their policy and comply."

That was a part of a U.S. Department of Education crackdown on "opt-in" in the summer of 2003, in which letters were sent to state superintendents of education around the country notifying them that "opt-in" was illegal.

While the state education departments in neither Washington or Oregon have an official policy on the "opt-in/opt-out" military recruitment information issue, spokespersons in both departments said that districts in their states were complying with the U.S. Education Department's "opt-out" interpretation.

Meanwhile, California's Cervantes said that the 23 other rebelling California school districts have followed suit with Santa Cruz, changing their policy to releasing student information to military recruiters unless the parents or students choose to "opt-out."

But Berkeley did not change.

Since a 2003 policy on military information policy was passed by the school board in Berkeley, parents of Berkeley High School students are provided with a form in the Student/Parent Handbook asking the parents to check a box and sign their names stating: "Please DO release my student's name, and address, and/or telephone number." The form goes on to inform parents that if they "do not check a box and sign above, [the high school] will NOT release your child's information to military recruiters."

"Because we expected the numbers of 'opt-in' students to be so low in Berkeley, this is partly a measure to minimize paperwork," Berkeley Unified School District public information officer Mark Coplan said -- with a slight smile. "We knew there would be far more forms to be filled out and handled by the district if we had asked parents to opt out." He added that he thought Berkeley's system was "a better use of time for the military recruiters themselves. It means they don't have to waste their time with students who don't want to be contacted."

Julia Harumi Mass, who has since taken over some of Brick's staff attorney duties at the ACLUNC, said in a recent telephone interview that while her organization doesn't "recommend to districts to risk federal funding, I think NCLB allows 'opt-in' on its face, if that's what districts want to do. And as a matter of principle, we believe that the issue of privacy is so important that the assumption should be don't release the information unless the parents or students say to do it."

The results on the amount of student information available to military recruiters is not insubstantial. Under Berkeley's "opt-in" policy, only 27 parents out of approximately 1,800 students chose to have their children's information released to the military. Forty miles south of Berkeley, under Fremont Unified School District's "opt-out" policy, 730 of 4,320 junior and senior students in five high schools chose to have their information withheld. That meant that under Fremont's "opt-out" military recruiters were given information on 83 percent of the students, while under Berkeley's "opt-in" they only got 1.5 percent. Other systems around the country report similar results. In the Portland (Oregon) Public Schools, which also has its own anti-war tradition, military recruiters had access to 76 percent of the district's 6,200 high school students last year under "opt-out." Even accounting for Berkeley's legendary social activism, those differences are clearly significant.

So far, Berkeley has not suffered any federal consequences from its NCLB interpretation.

And it may soon have company.

Last month, the governing board of the Alameda County Board of Education passed a resolution urging the 18 school districts under its jurisdiction to adopt the "opt-in" policy. "Students, parents and legal guardians should be informed that if a notice is not provided [by the student, parent, or legal guardian authorizing disclosure], the high school will assume that they do not authorize the school to release the requested information and their child's name and contact information will not be released."

"I thought this was a no-brainer," Barbara Heringer-Swar told board members while they were considering the policy. Heringer-Swar, a military resistance organizer employed with the Oakland (California)-based Central Committee For Conscientious Objectors, brought the military recruitment information issue to the Alameda County School Board. "Parents ought to be able to choose who contacts their children. If we ask parents to give consent for their children's' pictures to go in a newspaper, we should be asking them to give consent about going to war."

The Alameda County Board has budget oversight but no other authority over the county's independent school districts, so the resolution is only a suggestion. But given the county district's close working relationship with the local districts, that suggestion can be expected to have some weight.

And the possible illegality of "opt-in" may change, too. Congressmember Mike Honda, a Democrat representing a Bay Area district just south of Alameda County, has authored federal legislation-H.R. 551, the "Student Privacy Protection Act of 2005" which would end the ambiguity, amending federal law so that student information could be released to military recruiters only "if the parent of the student involved has provided written consent." In other words, make "opt-in" the recognized law of the land.

The proposed legislation is presently mired in the House Committee on Education and the Workforce, where Honda communications director Jay Staunton says it may languish. "The Republican leadership is not interested in pushing this legislation," Staunton said. "It's not their priority at any level. It's not on their agenda." But Staunton said that Honda is looking to try a favorite legislative tactic, attaching the language of H.R. 551 to a defense or appropriations bill, where the combination of needing to get the larger bill passed and appeals to the more privacy-oriented wing of conservative Republicans might give it a chance.