Opting for 'Opt-In'
By J. Douglas Allen-Taylor, AlterNet
May 16, 2005
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
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
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
"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"
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
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
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.
J. Douglas Allen-Taylor writes for the Berkeley Daily Planet.