Home  >  News & Publications  >  Newsletter Spring 2002 Recent United States Supreme Court Decisions - Spring 2002 United States Supreme Court Further Clarifies Student Record Regulations The United States Supreme Court recently issued a decision addressing the parameters of the federal student record regulations as they pertain to school districts. In Owasso Independent School Dist. No. I-001 v. Falvo , -- US --, (February, 2002), the Court held, in reversing a lower court decision, that grades put on a student's papers by another student are not "educational records" such that peer grading would violate the Family Educational Records and Privacy Act ("FERPA"). The decision indicates that three of Kristja J. Falvo's children were enrolled in Owasso Independent School District No. I-001, a suburb of Tulsa, Oklahoma. The children's teachers utilized peer grading. Students would exchange papers with each other and score them according to the teacher's instructions, then return the work to the student who prepared it. The decision further stated that a teacher could ask the students to report their own scores by either calling out the score or walking to the teacher's desk and revealing it in confidence. Both the grading and the system of calling out the scores were challenged. The parent claimed the peer grading embarrassed her children and violated, among other laws, FERPA. She asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district declined to do so, and the parent initiated legal action against the school district and various administrators. The United States District Court for the Northern District of Oklahoma granted summary judgment in favor of the school district. The court held that grades put on papers by another student are not, at that stage, records "maintained by an educational agency or institution or by a person acting for such agency or institution," 20 U.S.C. section 1232g(a)(4)(A), and thus do not constitute "educational records" under FERPA. Therefore, the court ruled that peer grading did not violate FERPA. The parent appealed the decision. The Court of Appeals reversed the District Court, holding that peer grading violated the FERPA. On further appeal, the United States Supreme Court found the Court of Appeals to be in error on two grounds. First, the Court held student papers are not, when being reviewed by peers, "maintained" by the school district within the meaning of FERPA (20 U.S.C. section 1232g(a)(4)(A)). The Court noted that the teacher does not maintain the grade while students correct their peers' assignment or when they call out their own marks. Nor do the student graders "maintain" the grades. The Court held that the word "maintain", suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments for a few moments as the teacher calls out the answers. It is fanciful to say they maintain the papers in the same way the registrar maintains a student's folder in a permanent file. Second, the Court disagreed with the Appeals Court's finding that a student grader is "a person acting for" an educational institution for purposes of FERPA (20 U.S.C. section 1232g(a)(4)(A)). The Court held, "the phrase 'acting for' connotes agents of the school, such as teachers, administrators, and other school employees". The Court further noted that "correcting a classmate's work can be as much a part of the assignment as taking the test itself. It is a way to teach material again in a new context, and it helps show students how to assist and respect fellow pupils." The Court did reiterate that "...for in all events the grades on students' papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade book. We limit our holding to this narrow point, and do not decide the broader question of whether the grades on individual student assignments, once they are turned in to teachers, are protected by the Act." In its review of FERPA and its obligations, the Court did note a school district's obligation to maintaining a log of access in connection with a student's records. NB: Please not this decision addresses a narrower point of law than that in the recently  decided Massachusetts case of Commonwealth v. Buccella , 434 Mass. 473 (2001) reported in the MHTL Education and Special Education Law Report (October, 2001). In that case the Massachusetts Supreme Judicial Court held that "a student record" as defined in the Massachusetts student record regulations does not include homework, written class work, classroom tests, or quizzes, "and such work are not protected by the confidentiality provisions of the regulations". As always, it would be  advisable to thoroughly review any student  record request to determine whether the requirements of state and federal student record regulations apply. Federal Court of Appeals Rules A School District Can Be Sued for Same-Sex Harassment Under Title IX In January, 2002, the United States Courts of Appeals for the First Circuit, which encompasses Massachusetts, issued its decision in the case of Frazier, et al. v. Fairhaven School Committee, et al . -- F.3d -- (2002) that addressed several issues of first impression affecting public schools. The Court found a school district could be sued for same-sex sexual harassment under Title IX of the Educational Amendments of 1972, 20 U.S.C. §1681. The Court also ruled that a plaintiff who alleges that local educational officials have violated a student's right to a free and appropriate public education may not bring suit for money damages under 42 U.S.C. §1983 without first exhausting the administrative process established by the Individuals with Disabilities Education Act (IDEA). Also, the Court held, the Family Educational Rights and Privacy Act (FERPA) does not confer a private right of action upon either an aggrieved student or her parents.1 The case involved various issues which allegedly arose during the student's attendance at Fairhaven High School. Included were claims that the school district had failed to comply with Section 504 of the Rehabilitation Act of 1973, claims alleging disciplinary actions by the school, and claims asserting harassment and the school's failure to comply with student record laws. At the District Court level, the Defendants moved to dismiss the amended complaint on the ground that it failed to state claims upon which relief could be granted. The District court dismissed the federal claims with prejudice. Frazier , 122 F.Supp. 2d at 111-14. The Plaintiffs then appealed to the First Circuit. On the issue of exhaustion, which the Court stated was one of first impression, it found the Plaintiffs acknowledged that they had not pursued administrative remedies under the IDEA. The Plaintiffs argued that their complaint did not rely upon the IDEA, but, rather, upon 42 U.S.C. Section 1983 and it sought relief exclusively in the form of money damages. Since the IDEA does not afford the remedy of money damages, the Plaintiffs argued that they should be allowed to bring their section 1983 claim directly before a federal district court. The Court noted the division among other Courts of Appeal on this issue. In rejecting the Plaintiffs' argument, the Court held, "[this requirement is more than a matter of form. Insisting on exhaustion forces parties to take their own errors, and potentially avoids the need for judicial involvement altogether...Allowing plaintiffs to bypass the IDEA's administrative process en route to state or federal court disrupts this carefully calibrated balance and shifts the burden of fact finding from the educational specialists to the judiciary. That phenomenon is directly at odds with the method of the IDEA..." On the Title IX issue, the Plaintiffs had alleged that the student was relieving herself in bathroom stall with the door closed when the school's "discipline matron" peered into the stall through a crack between the door and the wall. The Plaintiff allege that the incident caused the student profound distress and that, although they reported it to the school psychologist, school officials took no action against the discipline matron. The Court reviewed the applicability of Title IX to the school setting. The Court noted that the "quid pro quo" type of harassment was not raised in the complaint. The "hostile environment harassment" which was alleged, "covers acts of sexual harassment sufficiently severe and pervasive to compromise or interfere with educational opportunities normally available to students." Relying on United States Supreme Court decisions in other contexts, the Court held same-sex harassment complaints could be brought under Title IX. However, the Court found that there was nothing in the amended complaint to suggest that the matron's behavior constituted discrimination on the basis of sex, given that her duties included the monitoring of student discipline in and around the school building. 1 This issue is presently before the United States Supreme Court in the case of Gonzaga University, et al. v. John Doe, et al . Oral argument was scheduled for April, 2002. In another question of first impression, the Court held FERPA did not confer either "an express or implied private right of action" The Court noted the absence of such a provision in the body of the law and regulations. The Court also held that the express language of FERPA setting forth action by the United States Department of Education for FERPA violations, and its legislative history, dictated against a finding that there was an implied right of action. Federal Court of Appeals Upholds District Court Decision Finding Special Education Student's Proposed Placement is Appropriate The parents of a seventeen-year old autistic student filed an action seeking to overturn the decision of a hearing officer that had found a placement proposed for the student by the Puerto Rico Department of Education was appropriate. Gonzales v. Puerto Rico Department of Education , C.A. No. 00-169; 01-1032 (2001). For nine years, the student had attended the Higashi School in Boston which specializes in the education of autistic children. The Puerto Rico Department of Education's proposed placement had the student residing at home and attending specialized classes a local public school, supplemented by additional personnel and extended year services. Noting that the Federal District Court below had been dealing with the case since 1995, the Court of Appeals found the lower Court had before it conflicting testimony from experts as to whether the student could be appropriately educated outside a residential program. The Court found the District Court "acted within its bounds in finding the testimony of the defendant's expert credible and sufficient to support the hearing officer's decision." The Court also noted that the District Court had addressed the student's problems at home by ordering that the IEP be expanded to include further services and training for the boy's parents. And there was sufficient evidence in the record to support the District Court's conclusion that these issues could be managed effectively. N.B. This case illustrates the length of time, effort and expenses which can ensue after an appeal of a due process hearing decision is taken in matters of special education placements. Massachusetts Supreme Judicial Court Upholds Student's Suspension Under M.G.L. c.71 §37H1/2 The Supreme Judicial Court ("SJC") has reversed a decision issued by a Norfolk Superior Court Judge involving a student's suspension under G.L. c.71, §37H½. The case is Doe, et al. v. Superintendent of Schools of Stoughton, et al. - Mass - (SJC-08738) (2002). The Court's decision states that prior to the current (2001-2002) school year, the student was charged with indecent assault and battery of a child under fourteen, and with rape and abuse of a child, in connection with an incident between the student and a six year-old neighbor. He was released pending trial and began his freshman year at Stoughton High School. The decision states the student attended for the first several weeks of the school year without incident. In October, 2001, the school principal, upon learning of the charges, scheduled a disciplinary hearing under G.L. c.71, §37H½ to determine whether any discipline, including expulsion, should occur. Subsequent to the hearing, the principal concluded that the student posed a threat to the high school community and suspended the student pending the resolution of the criminal charges. The principal's decision was upheld by the Superintendent. Thereafter, the Student filed an action in Superior Court seeking an injunction which was denied. The Superior Court had originally granted an injunction and directed that the Stoughton Public Schools allow the student to continue attending school, notwithstanding the student having been charged with a felony. The school district then appealed to the Massachusetts Appeals Court seeking a stay of the injunction. The Appeals Court stayed the Superior Court's decision and ruled that the school district properly acted within its authority in suspending the student. The Appeals Court then ordered that the student continue to receive home instruction while being disciplined. The SJC then transferred the case on its own motion. In reviewing the matter, Justice Cowin, writing for the Court, reiterated that it traditionally has afforded school officials " substantial deference in matters of discipline". "Students have an important interest in public education, but we have recognized that 'educational opportunities can be lost by students as a result of their actions'". Justice Cowin indicated that the Court would affirm a superintendent's actions in the area of student discipline if it was rationally based. In this particular case, Justice Cowin noted, that while the SJC agreed with the Superior Court that more than a felony charge is required to impose suspension, the superintendent had made the necessary findings, supported by the evidence in the case that the student's attendance at school "would have a substantial detrimental effect on the general welfare of the school," G. L. c. 71, § 37H ½. Notably, the SJC held the statute "does not prohibit the principal from drawing an inference of detrimental effect based on the nature of the crime alone". The Court went on to note that the crime in the case was "particularly troublesome" as it involved sexual conduct with a young child. Additionally, the student had failed to express remorse for his conduct and had tried to explain the incident as "a joke." Based on this, the Court ruled the principal had acted reasonably in finding that there was a danger the student could attempt to engage in similar behavior with fellow students. Lastly, the Court held the proceedings before the principal met the procedural requirements of G.L. c. 71, §37H½. The parents had received notice of the hearings before both the principal and the superintendent. The parents' had claimed that the principal's suspension notice was defective because it did not include the determination of the substantial detrimental effect of the student's presence at school. However, the Court noted that in his letter, the principal explicitly stated his determination was based on the police reports that led him to the conclusion the student posed "a threat to the safety, security and welfare of the Stoughton High School community." The Court concluded that §37H ½, requires only that "the student . . . receive written notification of the charges and the reasons for such suspension prior to such suspension taking effect." Massachusetts Appeals Court Finds Initiation of Criminal Proceeding Does Not Constitute a "Change in Placement" for Special Education Purposes In a decision issued in March, 2002, the Massachusetts Appeals Court upheld an adjudication of delinquency in connection with a then seventeen year-old special education student who had been found in possession of marijuana in school. Commonwealth v. Nathaniel N ., -- Mass.App.Ct. -- (99-P-1085)(2002). In so finding, the Court held that the juvenile proceeding was not a "change in placement" for purposes of special education. The decision states that in March, 1998, a high school teacher identified the defendant student as having participated in a drug transaction. After an initial investigation, the principal called the local police. After further questioning by the principal in the presence of the police, the principal found two small packages of marijuana. The local police department subsequently took out three delinquency complaints. The defendant student appealed from an adjudication of delinquency for possession of two small bags of marijuana in school under M.G.L. c. 94C, §§ 32, 34. On appeal, the student argued the Juvenile Court proceeding constituted a change in educational placement or services under the Individuals with Disabilities Act (IDEA), 20 U.S.C. §1400 et seq. He further argued that he should have received the procedural protections under the IDEA in connection with such a change. He also claimed that his high school violated the IDEA by failing to provide the police with his records pursuant to 20 U.S.C. §1415(k)(9)(B). The Court's decision states that prior to the criminal matter the defendant student "had a long history of disruptive behavior at home as well as at school" for matters including "directing vulgar language at teachers, disobeying school rules, and failing to report for assigned detentions". The Appeals Court held in rejecting the student's arguments that he was not entitled to the relief he sought. First, the Court pointed to the language of the IDEA which states, "Nothing...shall be construed to prohibit any agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability." 20 U.S.C. §1415(k)(9)(A). The Court rejected the student's argument that the fact that charges were taken out by the police rather than the school should not change the application of the IDEA. The student had argued that otherwise a school could "circumvent all its obligations under the IDEA by calling the police to the school rather than initiating court proceedings themselves." The Court further found the IDEA "clearly authorizes schools to report criminal activities to the appropriate authorities" and there was no evidence to suggest the school called the police to avoid its responsibilities under IDEA. The student had also argued that the school district violated the IDEA by failing to provide the police with his school records as required under 20 U.S.C. § 1415(k)(9)(B). The Court supported the Juvenile Court's ruling that the above provision does not say when records must be provided and "may be provided at any stage in the prosecution". The Appeals Court also found that there was no support for the claim that the alleged lack of the records affected the delinquency proceedings and that FERPA regulations limit the distribution of a student's records. Notably, the Court also found the defendant student's claim that the school failed to provide him with the free and appropriate education under the IDEA could not be litigated in the appeal, as the school was not a party to the Juvenile Court proceeding. Superior Court Judge Finds List Written by a Student Did not Constitute a Threat to Teacher A Middlesex Superior Court judge dismissed a complaint brought by a sixth grade teacher wherein she alleged that a note written by a student entitled "People I Want to Kill", and the subsequent actions of the school district, constituted torts of assault, intentional infliction of emotional distress, and negligence. Mary Conley v. John Doe et al. , Middlesex Superior Court C.A. No. 01-1569-F(2001). The decision, which did not include the name of the school district, indicated that a teacher saw a student writing on a piece of paper with a black marker. She observed that he had written the words, "People I Want to Kill," across the top of the paper. The decision states no names were written on the paper when the teacher retrieved it. Several days later, the teacher learned that school authorities had discovered a second piece of paper that had been written by the student on the same day as the first that also was entitled, "People I Want to Kill", but this paper included the names of nine people, including the teacher in question. When the teacher learned of the piece of paper that included her name, she left the school building and stated she was "deathly afraid" of returning. The decision adds that school officials subsequently met with the student's parents, telling them that the student could not return to school until, among other things, he had completed a psychological evaluation. That same evening, one of student's parents accompanied the student to school before a school dance and delivered to a school official what the parent contended was a full and complete psychological evaluation. Having received that evaluation, the school allowed the student to attend the school dance that evening. The teacher argued that the "psychological evaluation" was not a genuine full and complete psychological evaluation because it had been produced in too short a time. She alleged that the psychological evaluation submitted to the school was a misleading and fraudulent document, having been prepared by one or both of the parents, one of whom was a professional in the field of either psychology or psychiatry, or by another person who was under their control and supervision. In the complaint the teacher alleged that the school failed to take any "meaningful disciplinary action" against the student and allowed him to return to school, even though he might pose a serious risk of harm. This action, the teacher alleged, resulted from threats and intimidation by the student's parents, including the threat by the student's mother of a lawsuit if the school took strong disciplinary action or publicized what he had done. The defendant's moved to dismiss the Complaint. In its decision the court found that the student's actions, writing on the two pieces of paper, in and of themselves, did not rise to the level of an assault. The Judge found, "[a] sixth grader does not assault a teacher by privately writing that he wants to kill her. Otherwise, a student writing such thoughts at home in his private journal would be assaulting a teacher once she somehow obtains a copy of the journal entry. At the very least, the student must in some fashion act to communicate that intention to the teacher before the expression of these private thoughts becomes a tortious assault." With regard to the teacher's claim for intentional infliction of emotional distress, the court held, as a matter of law, "that a sixth grader does not engage in conduct that is 'extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community,' when he privately writes that he wants to kill a teacher but does not act to communicate that intent to the teacher. Such conduct, however sad and disturbing, cannot rise to the level of triggering a claim for intentional infliction of emotional distress unless, at the very least, the student acts to communicate that intention to his teacher. In short, if the conduct fails to constitute a criminal threat because the student has not acted to communicate the threat, it fails to state a cause of action for the tort of intentional infliction of emotional distress." For many of the same reasons stated above, the court also held that the teacher's complaint did not make a case for parental negligence, negligent infliction of emotional distress, or civil conspiracy. NB: This decision should be compared with the Supreme Judicial Court's decision in Commonwealth v. Milo M. , 433 Mass. 149 (2001), wherein the Court held that drawings of a twelve year-old student may constitute threats to teachers. In that case, the Courtheld that the student's intention to carry out the threat was evidenced by the content of the drawings, the fact that the two pictures both depicted himself committing a violent act upon his teacher, and his demeanor and defiant manner towards his teacher when he offered her the second drawing. Also, the student's ability to carry out the threat could have been inferred from his demeanor, his disciplinary history, and the fact that he was loitering near his teacher's car the same day. Labor & Employment Massachusetts Supreme Judicial Court Orders Arbitrator's Award Vacated In a January, 2002 decision the Supreme Judicial Court reversed and vacated a previous arbitrator's decision that had been upheld by the Superior Court involving the applicability of a collective bargaining agreement to school nurses. School Committee of Hanover v. Hanover Teachers Association , 435 Mass. 736 (2002). In the case, an arbitrator had ruled that the Hanover School Committee violated its collective bargaining agreement ("CBA") with the Hanover Teachers Association by refusing to apply the agreement's terms to four school nurses. The Superior Court had confirmed the arbitrator's decision. The SJC then transferred the case on its own motion. According to the decision, under the CBA's "recognition" clause, the association was "the exclusive bargaining agent and representative of those members of the professional staff of the Hanover Public Schools including teachers and partnership teachers, comprising Unit A, so-called". Unit A included all professional employees excluding, among others, nurses. Prior to executing the agreement, the school committee recognized the association as the bargaining representative for the school nurses, but refused to include the nurse in Unit A. When subsequent negotiations failed, the parties went before the Labor Relations Commission ("LRC"). The decision states that the LRC concluded that the nurses' unit should be accreted into Unit A. After the commission's decision, the association asserted that the terms and conditions of the agreement applicable to Unit A members should also be applied to the nurses. The school committee maintained that the terms and conditions of the nurses' employment were subject to negotiation. A grievance ensued. The arbitrator concluded that the association's grievance was arbitrable, and further concluded that the school committee had acted improperly. According to the decision, the arbitrator based his decision on the fact that the LRC had accreted the nurses. On appeal to the Superior Court, a judge agreed with the arbitrator that the grievance had been arbitrable and that the arbitrator had properly exercised his authority to interpret the recognition clause to include nurses as members of Unit A. The SJC concluded that the arbitrator's award should have been vacated because he exceeded his authority in finding the association's grievance arbitrable. The agreement's recognition clause "clearly and unambiguously excludes the nurses from its coverage....To permit otherwise would result in the arbitration of any grievance merely alleging that the terms of the agreement had been violated or that the dispute concerned the interpretation of the agreement." The Court went on to hold that, "[t]he recognition clause states that 'Unit A includes all professional employees excluding...nurses.' There is nothing ambiguous in that language; it means exactly what it states, namely, that Unit A excludes the nurses and the agreement does not cover them. Because the limiting language speaks with clarity, and leaves no room for doubt as to interpretation, no presumption of arbitrability arose." Supreme Judicial Court Finds Superior Court Erred in Reinstating Teacher Who Used Physical Force on Students The Massachusetts Supreme Judicial Court has upheld the dismissal of a teacher who had used physical force with students, but who had been reinstated by an arbitrator. School District of Beverly v. Geller , 435 Mass. 223 (2001). Mr. Geller was a sixth grade teacher and twenty-five year employee who in May 1996, was involved in three different incidents where he used physical force against his students. None of these situations involved force used in self-defense or defense of other students, but rather "as a means of getting the students' attention." The school district, after hearings, dismissed Geller, and Geller challenged the dismissal under the terms of G.L. c.71, §42. An arbitrator reinstated Geller. Beverly appealed the decision in Superior Court, where it was affirmed. The Appeals Court in School District of Beverly v. Geller 50 Mass. App. Ct. 290 (2000) reversed the Superior Court decision and vacated the arbitration award which had reinstated Mr. Geller on the basis that the arbitrator's award offended "a clear and well-defined public policy against the use of physical force, however slight, by a teacher against students". On October 5, 2001 the Massachusetts Supreme Judicial Court ("SJC") issued a decision upon further appellate review of the above case. Like the Appeals Court, the SJC, on an overall vote of 4-3, vacated the arbitrator's decision which had reinstated Mr. Geller to his teaching position. However, three of the four SJC Justices voting with the majority did so on grounds different from the Appeals Court. The decision presents separate opinions from Justice Cordy, Justice Ireland and Justice Cowin. Justice Cordy, who was joined in his decision by Justices Marshall and Sosman, found that the arbitrator exceeded his authority by substituting his own judgment for that of the principal and/or superintendent when he reinstated the teacher. The arbitrator found that Geller was guilty of conduct unbecoming a teacher, but, in light of Geller's more than twenty years of service with no prior disciplinary record, the arbitrator felt that dismissal was not warranted. In the opinion of Justices Cordy, Marshall and Sosman, however, under the terms of G.L. c. 71, §71, §42, once an arbitrator finds that one of the grounds for dismissal which are enumerated in §42 has been proven, the arbitrator must defer to the judgment of the principal and/or superintendent in regard to whether dismissal is warranted. Justice Ireland, on the other hand, while concurring with Justices Cordy, Marshall and Sosman that the arbitrator's decision should be vacated, adopted the same reasoning as the Appeals Court. Thus, he concluded that the arbitrator exceeded his authority by reaching a conclusion "that offends our strong public policy against the use of physical force by a teacher against a student." The three remaining justices joined in an opinion to the effect that the arbitrator did not exceed his authority when he reinstated Geller. These justices relied on traditional grounds that would say that arbitration decisions should be overturned only in exceptional situations and that the public policy exception to this rule is a very narrow one. In view of the sharply divided court, the eventual significance of Geller is highly uncertain. If, for example, a future dismissal case were to involve less of a "public policy" (e.g., if it were a quality of performance issue rather than a case involving the use of physical force) might Justice Ireland side with the three-justice Geller minority, creating a 4-3 vote in support of an arbitrator's discretion? It will require additional case law for this to play itself out. Legislative and Regulatory Developments Regional School District Finances In January, 2002, the Governor signed into law Chapter 6 of the Acts of 2002 which addresses the finances of regional school districts. Specifically, the provision affects the position of regional school district treasurers and assistant treasurers by amending M.G.L. c. 71, §16A. The new language requires that individuals in these positions "...shall be persons of ability and experience". A treasurer of a member municipality of the district will now be eligible for appointment as treasurer or assistant treasurer of a regional school district. However, a school business manager, an assistant superintendent for business, or an employee with a similar title or responsibilities to those of a town accountant may not hold the office of treasurer or assistant treasurer or "hold any responsibilities for the receipt or disbursement of money." The Act also requires school committees to "solicit proposals and contract with an independent certified public accountant to perform an annual financial audit and make management recommendations, and shall receive the audit report in public session." Copies of any such audit must be provided within 10 days "to the director of accounts and to the board of selectmen, town manager, major or city manager". Access to Students and Student Information By Military Recruiters As part of the recently enacted "No Child Left Behind Act of 2001" ("Act"), the federal government has included a provision relative to access by Armed Forces Recruiters to students and student recruiting information. The provision, found at Section 9528 of the Act, requires each local educational agency receiving federal assistance to provide, on a request made by military recruiters or an institution of higher education, "access to secondary school students names, addresses, and telephone listings". A local educational agency or private school is required to notify parents and the secondary school student of their option to assert that the student's name, address, and telephone listing not be released without prior written parental consent. The school district is required to comply with any such request. Such notification can be through the student/parent handbook. Further, each local educational agency receiving federal assistance is required to provide military recruiters the same access to "secondary school students" as is provided generally to post secondary educational institutions or to prospective employers. The Secretary of Education, in consultation with the Secretary of Defense, is required to notify principals, school administrators, and other educators, within 120 days after the date of enactment of the No Child Left Behind Act of 2001, about the requirements of the provision. The Act was signed into law on January 8, 2002. The provision does provide for an exception to these requirements of this section to a private secondary school "that maintain 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". NB: School districts may be aware of a similar provision to the one above which the Federal Government has enacted through the National Defense Authorization Act of 2002. By its language, however, that provision would not become effective until July 1, 2002. Given the earlier date of the provision within the No Child Left Behind Act, school districts should attempt to comply with the provisions of that Act rather than wait until July 1, 2002.