[Federal Register Volume 72, Number 87 (Monday, May 7, 2007)]
[Proposed Rules]
[Pages 25713-25720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8662]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 216
[DoD-2006-OS-0136]
RIN 0790-AI15
Military Recruiting and Reserve Officer Training Corps Program
Access to Institutions of Higher Education
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense proposes to amend the current rule
addressing military recruiting and Reserve Officer Training Corps
program access at institutions of higher education. This proposed rule
would implement 10 U.S.C. 983, as amended by the Ronald W. Reagan
National Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-
375 (October 28, 2004)). As amended, 10 U.S.C. 983 clarifies access to
campuses, access to students and access to directory information on
students for the purposes of military recruiting, and now states that
access to campuses and students on campuses shall be provided in a
manner that is at least equal in quality and scope to that provided to
any other employer. The prohibition against providing Federal funds
when there is a violation of 10 U.S.C. 983 has an exception for any
Federal funds provided to an institution of higher education, or to an
individual, that are available solely for student financial assistance,
related administrative costs, or costs associated with attendance. Such
funds may be used for the purpose for which the funding is provided. A
similar provision in section 8120 of the Department of Defense
Appropriations Act of 2000 (Pub. L. 106-79; 113 Stat. 1260) has been
repealed. This rule also rescinds the previous policy that established
an exception that would limit recruiting on the premises of the covered
school only in response to an expression of student interest when the
covered school certified that too few students had expressed interest
to warrant accommodating military recruiters.
DATES: Comments must be received by July 6, 2007.
ADDRESSES: You may submit comments, identified by docket number and or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Brenda Leong, Office of the Under
Secretary of Defense (Personnel and Readiness), 4000 Defense Pentagon,
Washington, DC 20301-4000 (telephone: (703) 695-5529).
SUPPLEMENTARY INFORMATION: ``Covered funds'' is defined in 10 U.S.C.
983 to be any funds made available for the Departments of Defense,
Transportation, Homeland Security, or National Nuclear Security
Administration of the Department of Energy, the Central Intelligence
Agency, or for any department or agency in which regular appropriations
are made in the Departments of Labor, Health and Human Services,
Education, and Related Agencies Appropriations Act. None of these
covered funds may be provided by contract or grant to a covered school
(including any subelement of a covered school) that has a policy or
practice (regardless of when implemented) that either prohibits, or in
effect prevents, the Secretary of Defense from establishing or
operating a Senior Reserve Officer Training Corps (ROTC) at that
covered school (or any subelement of that covered school); or that
either prohibits, or in effect prevents, a student at that covered
school (or any subelement of that covered school) from enrolling in a
ROTC unit at another institution of higher education. The Federal law
further provides similar sanctions
[[Page 25714]]
against these covered funds being provided to a covered school (or any
subelement of a covered school) that has a policy or practice
(regardless of when implemented) that either prohibits, or in effect
prevents, the Secretary of a Military Department or Secretary of
Homeland Security from gaining access to campuses, or access to
students (who are 17 years of age or older) on campuses, for purposes
of military recruiting, where such policy or practice denies the
military recruiter access that is at least equal in quality and scope
to the access to campuses and students provided to any other employer;
or access to student directory information pertaining to the students'
names, addresses, telephone listings, dates and places of birth, levels
of education, academic majors, degrees received, and the most recent
educational institution enrolled in by the student. The term ``equal in
quality and scope'' means the same access to campus and students
provided by the school to the nonmilitary recruiter receiving the most
favorable access.\1\
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\1\ Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S. Ct. 1297 (2006):
``The statute requires the Secretary of Defense to compare the
military's `access to campuses' and `access to students' to `the
access to campuses and to students that is provided to any other
employer.' (Emphasis add [by Court].) * * *
The Solomon Amendment does not focus on the content of a
school's recruiting policy, [but instead on] the result achieved by
the policy and compares the `access * * * provided' military
recruiters to that provided other recruiters. Applying the same
policy to all recruiters is therefore insufficient to comply with
the statute if it results in a greater level of access for other
recruiters than for the military. * * *
Not only does the text of the statute support this view, but
this interpretation is necessary to give effect to the Solomon
Amendment's recent revision.''
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As an exception to the above rule, any Federal funding provided to
a covered school or to an individual that is available solely for
student financial assistance, related administrative costs, or costs
associated with attendance, may be used for the purpose for which the
funding is provided.
The Department of Defense drafted this proposed rule in
consultation with other Federal agencies, including the Departments of
Education, Labor, Transportation, Health and Human Services, Homeland
Security, Energy, and the Central Intelligence Agency. Agencies
affected by this rule will continue to coordinate with other
organizations as they implement their provisions.
This proposed rule defines the criteria for determining whether an
institution of higher education has a policy or practice prohibiting or
preventing the Secretary of Defense from maintaining, establishing, or
efficiently operating a Senior ROTC unit; or has a policy of denying
military recruiting personnel access that is at least equal in quality
and scope to the access to campuses and students provided to any other
employer, or access to directory information on students. Pursuant to
10 U.S.C. 983 and this proposed rule, institutions of higher education
having such policies or practices are ineligible for certain Federal
funding.
The criterion of ``efficiently operating a Senior ROTC unit''
refers generally to an expectation that the ROTC Department would be
treated on a par with other academic departments; as such, it would not
be singled out for unreasonable actions that would impede access to
students (and vice versa) or restrict its operations.
This proposed rule also defines the procedures that would be
followed in evaluating reports that a covered school has not met
requirements defined in this rule. When a component of the Department
of Defense (DoD component) believes that policies or practices of an
institution of higher education might require such an evaluation, that
component is required to confirm the institution's policy in
consultation with the institution. If that exchange suggests that the
policy or practice could trigger a denial of funding, as required by
the Act, the supporting facts would be forwarded through Department of
Defense channels to the decision authority, the Principal Deputy Under
Secretary of Defense for Personnel and Readiness (PDUSD(P&R)).
In evaluating whether an institution that provides information in
response to a request from a military recruiter for military recruiting
purposes would violate the Family Educational Rights and Privacy Act of
1972, as amended, (FERPA; 20 U.S.C. 1232g), the Department of Education
has informed the Department of Defense that it will not consider the
act of providing responsive student information as required under the
Act and this rule as an act that violates FERPA. Institutions must take
care, however, to release only that information specifically required
under 10 U.S.C. 983 and this proposed rule.
Regarding the opportunity for a student to ``opt-out'' of or object
to the release of ``directory information'' under FERPA, the Department
of Defense provides the following clarification. If an institution
receives a request for student-recruiting information, and that request
seeks information that the institution has included in its definition
of ``directory information'' that is releasable under FERPA, and a
student has previously requested, in writing, that the ``directory
information'' not be disclosed to any third party, the Department of
Defense agrees that information for that student will not be provided
to the requesting military recruiter or Department of Defense. If an
institution declines to provide student-recruiting information because
a student has ``opted-out'' from the institution's policy of disclosing
``directory information'' under FERPA, the Department of Defense will
not consider that institution to have denied access under 10 U.S.C.
983. The Department of Defense will honor only those student ``opt-
outs'' from the disclosure of directory information that are even-
handedly applied to all prospective employers seeking information for
recruiting purposes. In those circumstances where an institution's
``directory information'' definition does not include all of the
student-recruiting information required under 10 U.S.C. 983, the
Department of Defense will also honor the student's ``opt-out''
decision that was made regarding the release of the institution's
``directory information.''
If an institution does not release all of the requested student-
recruiting information as part of its ``directory information'' policy
under FERPA (or has a policy of disclosing no ``directory
information''), the institution must nevertheless honor the request
from a military recruiter for student-recruiting information concerning
students who have not ``opted-out'', even if that information would not
be available to the public under FERPA. Because this information is
requested exclusively for military recruiting, a special opportunity
for a student to decline the release of student-recruiting information
is not necessary or appropriate.
Summary of Rule
In carrying out their customary activities, DoD components must
identify any covered school that, by policy or practice, denies
military recruiting personnel access to its campus or access to its
students on campus in a manner that is at least equal in quality and
scope to access provided to any other employer, in effect denies
students permission to participate, or prevents students from
participating in recruiting activities, or denies military recruiters
access to student-recruiting information. The term ``equal in quality
and scope'' means the same access to campus and students provided to
the nonmilitary recruiter receiving the most favorable
[[Page 25715]]
access.\2\ When requests to schedule recruiting visits or to obtain
student-recruiting information are unsuccessful, the DoD component
concerned must seek written confirmation of the school's present policy
from the head of the covered school through a letter of inquiry,
allowing 30 days for response. If written confirmation cannot be
obtained, oral policy statements or attempts to obtain such statements
from an appropriate official of the school shall be documented. A copy
of the documentation shall be provided to the covered school, which
shall be informed of its opportunity to forward clarifying comments
within 30 days to accompany the DoD component's submission to the
PDUSD(P&R). When that 30-day period has elapsed, the DoD component will
forward the case for disposition.
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\2\ Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S. Ct. 1297 (2006):
``The statute requires the Secretary of Defense to compare the
military's `access to campuses' and `access to students' to `the
access to campuses and to students that is provided to any other
employer.' (Emphasis added [by Court].) * * *
The Solomon Amendment does not focus on the content of a
school's recruiting policy, [but instead on] the result achieved by
the policy and compares the `access * * * provided' military
recruiters to that provided other recruiters. Applying the same
policy to all recruiters is therefore insufficient to comply with
the statute if it results in a greater level of access for other
recruiters than for the military. * * *
Not only does the text of the statute support this view, but
this interpretation is necessary to give effect to the Solomon
Amendment's recent revision.''
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Similarly, in carrying out their customary activities, DoD
components also must identify any covered school that, by policy or
practice, denies establishment, maintenance, or efficient operation of
a unit of the Senior ROTC, or denies students permission to
participate, or effectively prevents students from participating in a
unit of the Senior ROTC at another institution of higher education. The
DoD component concerned must seek written confirmation of the school's
policy from the head of the covered school through a letter of inquiry,
allowing 30 days for response. If written confirmation cannot be
obtained, oral policy statements or attempts to obtain such statements
from an appropriate official of the school shall be documented. A copy
of the documentation shall be provided to the covered school, which
shall be informed of its opportunity to forward clarifying comments
within 30 days to accompany the DoD component's submission to the
PDUSD(P&R). When that 30-day period has elapsed, the DoD component will
forward the case for disposition.
The recommendation of the DoD component then must be reviewed by
the Secretary of the Military Department concerned, or designee, who
shall evaluate responses to the letter of inquiry and other such
information obtained in accordance with this part, and submit to the
PDUSD(P&R) the names and addresses of covered schools that are believed
to be in violation of 10 U.S.C. 983. Full documentation must be
furnished to the PDUSD(P&R) for each such covered school, including the
school's formal response to the letter of inquiry, documentation of any
oral response, or evidence showing that attempts were made to obtain
either written confirmation or an oral statement of the school's
policies. Under agreement with the Department of Homeland Security,
reports of covered schools believed to be in violation of 10 U.S.C. 983
with regard to the Coast Guard when not operating as a Service in the
Navy shall be furnished to the PDUSD(P&R) for disposition.
Following any determination by the PDUSD(P&R) that the policies or
practices of an institution of higher education require ineligibility
for certain Federal funding, as required by the Act, the PDUSD(P&R)
shall:
Disseminate to Federal entities affected by the decision,
including the DoD components and the General Services Administration
(GSA), and to the Secretary of Education and the head of each other
department and agency the funds of which are subject to the
determination, the names of the affected institutions. The PDUSD(P&R)
also shall notify the Committees on Armed Services of the Senate and
the House of Representatives;
Publish in the Federal Register each such determination,
and publish in the Federal Register at least once every 6 months a list
of all institutions currently determined to be ineligible for contracts
and grants by reason of such determinations; and
Inform the affected institution that its funding
eligibility may be restored if the school provides sufficient new
information to establish that the basis for the determination no longer
exists.
This proposed rule contains procedures under which funding may be
restored. Not later than 45 days after receipt of a school's request to
restore funding eligibility, the PDUSD(P&R) must determine whether the
funding status of the covered school should be changed and notify the
applicable school of that determination. Pursuant to that
determination, entities of the Federal government affected by the
decision, including the DoD components and the GSA, shall be notified
of any change in funding status.
Other Matters
In the event of any determination of ineligibility by the
PDUSD(P&R), Federal departments and agencies concerned shall determine
what funds provided by grant or contract to the covered school are
affected and take appropriate action. As a result of this division of
responsibility and the large number of Federal departments and agencies
affected, this rule does not detail what specific funds are affected by
any determination of ineligibility.
This proposed rule does not affect or cover any Federal funding
that is provided to an institution of higher education or to an
individual, to be available solely for student financial assistance,
related administrative costs, or costs associated with attendance. This
includes, but is not limited to, funds under the Federal Supplemental
Educational Opportunity Grant Program (Title IV, Part A, Subpart 3 of
the Higher Education Act of 1965, as amended), the Federal Work-Study
Program (Title IV, Part C), and the Federal Perkins Loan Program (Title
IV, Part E), the Federal Pell Grant Program (Title IV, Part A, Subpart
1), the Federal Family Education Loan Program (Title IV, Part B), and
the William D. Ford Federal Direct Loan Program (Title IV, Part D). The
Secretary of Education will provide additional information about the
applicability of the rule to other Department of Education programs in
communications to the affected communities.
Executive Order 12866, ``Regulatory Planning and Review''
This proposed rule is a significant regulatory action that OMB has
approved for publication.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities since recent history indicates that their provisions are not
applicable to the vast majority of institutions of higher education.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
It has been certified that this rule does not contain a Federal
mandate that may result in the expenditure by State, local and tribal
governments, in aggregate, or by the private sector, of $100 million or
more in any one year.
[[Page 25716]]
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This rule establishes procedures for on-campus
military recruiting and student access to Reserve Officer Training
Corps (ROTC) programs in implementation of 10 U.S.C. 983.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
This proposed rule will not impose any additional reporting or
record keeping requirements under the Paperwork Reduction Act.
Executive Order 13132
It has been certified that this rule does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of government.
List of Subjects in 32 CFR Part 216
Armed forces; Colleges and universities.
Accordingly, 32 CFR part 216 is proposed to be revised to reflect
the most recent statutory changes and to read as follows:
PART 216--MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS
PROGRAM ACCESS TO INSTITUTIONS OF HIGHER EDUCATION
Sec.
216.1 Purpose.
216.2 Applicability.
216.3 Definitions.
216.4 Policy.
216.5 Responsibilities.
216.6 Information requirements.
Appendix A of Part 216--Military Recruiting Sample Letter of Inquiry
Appendix B of Part 216--ROTC Sample Letter of Inquiry
Authority: 10 U.S.C. 983.
Sec. 216.1 Purpose.
This part:
(a) Implements 10 U.S.C. 983.
(b) Updates policy and responsibilities relating to the management
of covered schools that have a policy of denying or effectively
preventing military recruiting personnel access to their campuses or
access to students on their campuses in a manner that is at least equal
in quality and scope to the access to campuses and to students provided
to any other employer, or access to student-recruiting information. The
term ``equal in quality and scope'' means the same access to campus and
students provided to the nonmilitary recruiter receiving the most
favorable access.\1\
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\1\ Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S. Ct. 1297, 1305 (2006):
``The statute requires the Secretary of Defense to compare the
military's `access to campuses' and `access to students' to `the
access to campuses and to students that is provided to any other
employer.' (Emphasis added [by Court].) The statute does not call
for an inquiry into why or how the `other employer' secured its
access * * * We do not think that the military recruiter has
received equal `access' [when a law firm is permitted on campus to
interview students and the military is not]--regardless of whether
the disparate treatment is attributable to the military's failure to
comply with the school's nondiscrimination policy.
The Solomon Amendment does not focus on the content of a
school's recruiting policy, [but instead on] the result achieved by
the policy and compares the `access * * * provided' military
recruiters to that provided other recruiters. Applying the same
policy to all recruiters is therefore insufficient to comply with
the statute if it results in a greater level of access for other
recruiters than for the military. * * *
Not only does the text support this view, but this
interpretation is necessary to give effect to the Solomon
Amendment's recent revision.''
---------------------------------------------------------------------------
(c) Updates policy and responsibilities relating to the management
of covered schools that have an anti-ROTC policy.
Sec. 216.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments (including the Coast Guard when it is operating as
a Military Service in the Navy), the Chairman of the Joint Chiefs of
Staff, the Combatant Commands, the Defense Agencies, and the DoD Field
Activities (hereafter referred to collectively as ``the DoD
components''). This part also applies, by agreement with the Department
of Homeland Security (DHS), to the Coast Guard at all times, including
when it is a service in the Department of Homeland Security. The
policies herein also affect the Departments of Transportation, Homeland
Security, Energy (National Nuclear Security Administration), the
Central Intelligence Agency, and any department or agency in which
regular appropriations are made in the Departments of Labor, Health and
Human Services, Education, and Related Agencies Appropriations Act. The
term ``Military Services,'' as used herein, refers to the Army, the
Navy, the Marine Corps, the Air Force, and the Coast Guard, including
their Reserve or National Guard components. The term ``Related
Agencies'' as used herein refers to the Armed Forces Retirement Home,
the Corporation for National and Community Service, the Corporation for
Public Broadcasting, the Federal Mediation and Conciliation Service,
the Federal Mine Safety and Health Review Commission, the National
Commission on Libraries and Information Science, the National Council
on Disability, the National Education Goals Panel, the National Labor
Relations Board, the National Mediation Board, the Occupational Safety
and Health Review Commission, the Social Security Administration, the
Railroad Retirement Board and the United States Institute of Peace.
Sec. 216.3 Definitions.
(a) Anti-ROTC policy. A policy or practice whereby a covered school
prohibits or in effect prevents the Secretary of Defense from
maintaining, establishing, or efficiently operating a unit of the
Senior ROTC at the covered school, or prohibits or in effect prevents a
student at the covered school from enrolling in a Senior ROTC unit at
another institution of higher education.
(b) Covered funds. ``Covered funds'' is defined in 10 U.S.C. 983 as
any funds made available for the Departments of Defense,
Transportation, Homeland Security, or National Nuclear Security
Administration of the Department of Energy, the Central Intelligence
Agency, or any department or agency in which regular appropriations are
made in the Departments of Labor, Health and Human Services, and
Education, as well as in Related Agencies Appropriations Act (excluding
any Federal funds provided to an institution of higher education, or to
an individual, to be available solely for student financial assistance,
related administrative costs, or costs associated with attendance).
(c) Covered school. An institution of higher education, or a
subelement of an institution of higher education, subject to the
following clarifications:
(1) A determination (Sec. 216.5(a)) affecting only a subelement of
a parent institution (see Sec. 216.3(f)) effects a limitation on the
use of funds (Sec. 216.4(a)) applicable to the parent institution as a
whole, including the institution's offending subelement and all of its
subelements, if any.
(2) When an individual institution of higher education that is part
of a single university system (e.g., University of (State) at (City)--a
part of that state's university system) has a policy or practice that
prohibits, or in effect prevents, access to campuses or access to
students on campuses in a manner
[[Page 25717]]
that is at least equal in quality and scope to the access to its campus
and students as it provides to any other employer, or access to
student-recruiting information by military recruiters, or has an anti-
ROTC policy, as defined in this rule, it is only that individual
institution within that university system that is affected by the loss
of Federal funds. This limited effect applies even though another
campus of the same university system may or may not be affected by a
separate determination under Sec. 216.5(a). The funding of a
subelement of the offending individual institution of a single
university system, if any, will also be withheld as a result of the
policies or practices of that offending individual institution.
(d) Enrolled. Students are ``enrolled'' when registered for at
least one credit hour of academic credit at the covered school during
the most recent, current, or next term. Students who are enrolled
during the most recent term, but who are no longer attending the
institution, are included.
(e) Equal in quality and scope. The same access to campus and
students on campus provided to the nonmilitary recruiter receiving the
most favorable access.\2\
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\2\ Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S. Ct. 1297, 1305 (2006):
``The statute requires the Secretary of Defense to compare the
military's `access to campuses' and `access to students' to `the
access to campuses and to students that is provided to any other
employer.' (Emphasis added [by Court].) The statute does not call
for an inquiry into why or how the `other employer' secured its
access * * * We do not think that the military recruiter has
received equal `access' [when a law firm is permitted on campus to
interview students and the military is not]--regardless of whether
the disparate treatment is attributable to the military's failure to
comply with the school's nondiscrimination policy.
The Solomon Amendment does not focus on the content of a
school's recruiting policy, [but instead on] the result achieved by
the policy and compares the `access * * * provided' military
recruiters to that provided other recruiters. Applying the same
policy to all recruiters is therefore insufficient to comply with
the statute if it results in a greater level of access for other
recruiters than for the military. * * *
Not only does the text support this view, but this
interpretation is necessary to give effect to the Solomon
Amendment's recent revision.''
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(f) Institution of higher education. A domestic college,
university, or other institution (or subelement thereof) providing
postsecondary school courses of study, including foreign campuses of
such domestic institutions. The term includes junior colleges,
community colleges, and institutions providing courses leading to
undergraduate and post-graduate degrees. The term does not include
entities that operate exclusively outside the United States, its
territories, and possessions. A subelement of an institution of higher
education is a discrete (although not necessarily autonomous)
organizational entity that may establish policies or practices
affecting military recruiting and related actions (e.g., an
undergraduate school, a law school, a medical school, other graduate
schools, or a national laboratory connected or affiliated with that
parent institution). For example, the School of Law of XYZ University
is a subelement of its parent institution (XYZ University).
(g) Military recruiters. Personnel of DoD whose current assignment
or detail is to a recruiting activity of the DoD.
(h) Pacifism. Opposition to war or violence, demonstrated by
refusal to participate in military service.
(i) Student. An individual who is 17 years of age or older and is
enrolled at a covered school.
(j) Student-recruiting information. For those students currently
enrolled, the student's name, address, telephone listing, age (or year
of birth), place of birth, level of education (e.g., freshman,
sophomore, or degree awarded for a recent graduate), most recent
educational institution attended, and current major(s).
Sec. 216.4 Policy.
It is DoD policy that:
(a) Under 10 U.S.C. 983, no covered funds may be provided by
contract or grant (to include payment on such contracts or grants
previously obligated) to a covered school if the Secretary of Defense
determines that the covered school:
(1) Has a policy or practice (regardless of when implemented) that
either prohibits or in effect prevents the Secretary of Defense or
Secretary of Homeland Security from obtaining, for military recruiting
purposes, access to campuses or access to students on campuses that is
at least equal in quality and scope, as defined in Sec. 216.3(d), to
the access to campuses and to students provided to any other employer,
or access to directory information on students;
(2) Has failed to disseminate military visit information or alerts
at least on par with nonmilitary recruiters since schools offering such
services to nonmilitary recruiters must also send e-mails, post
notices, etc., on behalf of military recruiters to comply with the
Solomon Amendment; \3\
---------------------------------------------------------------------------
\3\ Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S. Ct. at 1308.
---------------------------------------------------------------------------
(3) Has failed to schedule visits at times requested by military
recruiters that coincide with nonmilitary recruiters' visits to campus
if this results in a greater level of access for other recruiters than
for the military (e.g., offering non-military recruiters a choice of a
variety of dates for on-campus interviews while only offering the
military recruiters the final day of interviews), as schools must
ensure that their recruiting policies operate such that military
recruiters are given access to students at least equal to that provided
to any other employer; \4\
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\4\ Id. at 1305.
---------------------------------------------------------------------------
(4) Has failed to provide military recruiters with a mainstream
recruiting location amidst nonmilitary employers to allow unfettered
access to interviewees since military recruiters must be given the same
access as recruiters who comply with a school's nondiscrimination
policy; \5\
---------------------------------------------------------------------------
\5\ Id. at 1306.
---------------------------------------------------------------------------
(5) Has failed to enforce time, place, and manner policies
established by the covered school such that the military recruiters
experience an inferior or unsafe recruiting climate, as schools must
allow military recruiters on campus and must assist them in whatever
way the school assists other employers; \6\
---------------------------------------------------------------------------
\6\ Id. at 1312.
---------------------------------------------------------------------------
(6) Has through policy or practice in effect denied students
permission to participate, or has prevented students from
participating, in recruiting activities; or
(7) Has an anti-ROTC policy or practice, as defined in this rule,
regardless of when implemented.
(b) The limitations established in paragraph (a) of this section
shall not apply to a covered school if the Secretary of Defense
determines that the covered school:
(1) Has ceased the policies or practices defined in paragraph (a)
of this section;
(2) Has a long-standing policy of pacifism (see Sec. 216.3(j))
based on historical religious affiliation;
(3) When not providing requested access to campuses or to students
on campus, certifies that all employers are similarly excluded from
recruiting on the premises of the covered school, or presents evidence
that the degree of access by military recruiters is the same access to
campuses or to students on campuses provided to the nonmilitary
recruiter receiving the most favorable access; \7\
---------------------------------------------------------------------------
\7\ Id. at 1304.
---------------------------------------------------------------------------
(4) When not providing any student-recruiting information,
certifies that such information is not maintained by the covered
school; or that such information already has been provided
[[Page 25718]]
to the Military Service concerned for that current semester, trimester,
quarter, or other academic term, or within the past four months (for
institutions without academic terms);
(5) When not providing student-recruiting information for a
specific student certifies that the student concerned has formally
requested, in writing, that the covered school withhold this
information from all third parties;
(c) A covered school may charge military recruiters a fee for the
costs incurred in providing access to student-recruiting information
when that institution can certify that such charges are the actual
costs, provided that such charges are reasonable, customary and
identical to fees charged to other employers.
(d) An evaluation to determine whether a covered school maintains a
policy or practice covered by paragraphs (a)(1) through (6) of this
section shall be undertaken when:
(1) Military recruiting personnel are prohibited, or in effect
prevented, from the same access to campuses or access to students on
campuses provided to the nonmilitary recruiter receiving the most
favorable access, or are denied access to student-recruiting
information; \8\
---------------------------------------------------------------------------
\8\ Id. at 1304.
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(2) Information or alerts on military visits are not distributed at
least on par with nonmilitary recruiters since schools offering such
services to nonmilitary recruiters must also send e-mails, post
notices, etc., on behalf of the military recruiter to comply with the
Solomon Amendment; \9\
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\9\ Id. at 1308.
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(3) Military recruiters are prohibited from scheduling their visits
at requested times that coincide with nonmilitary recruiters' visits to
its campus if this results in a greater level of access for other
recruiters than for the military as schools must ensure their
recruiting policy operates in such a way that military recruiters are
given access to students at least equal to that provided to any other
employer; \10\
---------------------------------------------------------------------------
\10\ Id. at 1305.
---------------------------------------------------------------------------
(4) Military recruiters do not receive a mainstream recruiting
location amidst nonmilitary employers to allow unfettered access to
interviewees since military recruiters must be given the same access as
recruiters who comply with the school's nondiscrimination policy; \11\
---------------------------------------------------------------------------
\11\ Id. at 1306.
---------------------------------------------------------------------------
(5) The school has failed to enforce time, place, and manner
policies established by that school such that military recruiters
experience an inferior or unsafe recruiting climate, as schools must
allow military recruiters on campus and must assist them in whatever
way the school chooses to assist other employers; \12\
---------------------------------------------------------------------------
\12\ Id. at 1312.
---------------------------------------------------------------------------
(6) Evidence is discovered of an institution-sponsored policy or
practice that in effect denied students permission to participate, or
prevented students from participating in recruiting activities.
(7) The costs being charged by the school for providing student-
recruiting information are believed by the military recruiter to be
excessive, and the school does not provide information sufficient to
support a conclusion that such are the actual costs, provided that they
are reasonable and customary, and are identical to those costs charged
to other employers; or
(8) The covered school is unwilling to declare in writing, in
response to an inquiry from a representative of a DoD component or a
representative from the Department of Homeland Security, that the
covered school does not have a policy or practice of prohibiting, or in
effect preventing, the Secretary of a Military Department or Secretary
of Homeland Security from the same access to campuses or access to
students on campuses provided to the nonmilitary recruiter receiving
the most favorable access, or access to student-recruiting information
by military recruiters for purposes of military recruiting.
(e) An evaluation to determine whether a covered school has an
anti-ROTC policy covered by paragraph (a)(7) of this section shall be
undertaken when:
(1) A Secretary of a Military Department or designee cannot obtain
permission to establish, maintain, or efficiently operate a unit of the
Senior ROTC; or
(2) Absent a Senior ROTC unit at the covered school, students
cannot obtain permission from a covered school to participate, or are
effectively prevented from participating, in a unit of the Senior ROTC
at another institution of higher education.
Sec. 216.5 Responsibilities.
(a) The Principal Deputy Under Secretary of Defense for Personnel
and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for
Personnel and Readiness, shall:
(1) Not later than 45 days after receipt of the information
described in paragraphs (b)(3) and (c)(1) of this section:
(i) Inform the Office of Naval Research (ONR) and the Director,
Defense Finance and Accounting Service that a final determination will
be made so that those offices can make appropriate preparations to
carry out their responsibilities should a covered school be determined
ineligible to receive Federal funds.
(ii) Make a final determination under 10 U.S.C. 983, as implemented
by this part, and notify any affected school of that determination and
its basis, and that the school is therefore ineligible to receive
covered funds as a result of that determination.
(iii) Disseminate to Federal entities affected by the decision,
including the DoD components and the General Services Administration
(GSA), and to the Secretary of Education and the head of each other
department and agency the funds of which are subject to the
determination, the names of the affected institutions identified under
paragraph (a)(1)(ii) of this section.
(iv) Notify the Committees on Armed Services of the Senate and the
House of Representatives of the affected institutions identified under
paragraph (a)(1)(ii) of this section.
(v) Inform the affected school identified under paragraph
(a)(1)(ii) of this section that its funding eligibility may be restored
if the school provides sufficient new information that the basis for
the determination under paragraph (a)(1)(ii) of this section no longer
exists.
(2) Not later than 45 days after receipt of a covered school's
request to restore its eligibility:
(i) Determine whether the funding status of the covered school
should be changed, and notify the applicable school of that
determination.
(ii) Notify the parties reflected in paragraphs (a)(1)(i),
(a)(1)(iii), and (a)(1)(iv) of this section when a determination of
funding ineligibility (paragraph (a)(1)(ii) of this section) has been
rescinded.
(3) Publish in the Federal Register each determination of the
PDUSD(P&R) that a covered school is ineligible for contracts and grants
made under 10 U.S.C. 983, as implemented by this part.
(4) Publish in the Federal Register least once every 6 months a
list of covered schools that are ineligible for contracts and grants by
reason of a determination of the Secretary of Defense under 10 U.S.C.
983, as implemented by this part.
(5) Enter information into the Excluded Parties List System \13\
about
[[Page 25719]]
each covered school that the PDUSD(P&R) determines to be ineligible for
contracts and grants under 10 U.S.C. 983 and/or this part, generally
within 5 days of making thedetermination.
---------------------------------------------------------------------------
\13\ The Excluded Parties List System (EPLS) is the system that
the General Services Administration maintains for Executive Branch
agencies, with names and other pertinent information of persons who
are debarred, suspended, or otherwise ineligible for Federal
procurement and/or covered non-procurement transactions.
---------------------------------------------------------------------------
(6) Provide ONR with an updated list of the names of institutions
identified under paragraph (a)(1)(ii) of this section whenever the list
changes due to an institution being added to or dropped from the list,
so that ONR can carry out its responsibilities for post-award
administration of DoD Components' contracts and grants with
institutions of higher education.
(7) Provide the Office of the Deputy Chief Financial Officer, DoD,
and the Director, Defense Finance and Accounting Service with an
updated list of the names of institutions identified under paragraph
(a)(1)(ii) of this section whenever the list changes due to an
institution being added or dropped from the list, so that those offices
can carry out their responsibilities related to cessation of payments
of prior contract and grant obligations to institutions of higher
education that are on the list.
(8) Publish in the Federal Register the list of names of affected
institutions that have changed their policies or practices such that
they are determined no longer to be in violation of 10 U.S.C. 983 and
this part.
(b) The Secretaries of the Military Departments and the Secretary
of Homeland Security shall:
(1) Identify covered schools that, by policy or practice, prohibit,
or in effect prevent, the same access to campuses or access to students
on campuses provided to the nonmilitary recruiter receiving the most
favorable access, or access to student-recruiting information by
military recruiters for military recruiting purposes.
(i) When requests by military recruiters to schedule recruiting
visits are unsuccessful, the Military Service concerned, and the Office
of the Secretary of Homeland Security when the Coast Guard is operating
as a service in the Department of Homeland Security, shall seek written
confirmation of the school's present policy from the head of the school
through a letter of inquiry. A letter similar to that shown in Appendix
A of this part shall be used, but it should be tailored to the
situation presented. If written confirmation cannot be obtained, oral
policy statements or attempts to obtain such statements from an
appropriate official of the school shall be documented. A copy of the
documentation shall be provided to the covered school, which shall be
informed of its opportunity to forward clarifying comments within 30
days to accompany the submission to the PDUSD(P&R).
(ii) When a request for student-recruiting information is not
fulfilled within a reasonable period, normally 30 days, a letter
similar to that shown in Appendix A shall be used to communicate the
problem to the school, and the inquiry shall be managed as described in
216.5.(b)(1)(ii). Schools may stipulate that requests for student-
recruiting information be in writing.
(2) Identify covered schools that, by policy or practice, deny
establishment, maintenance, or efficient operation of a unit of the
Senior ROTC, or deny students permission to participate, or effectively
prevent students from participating in a unit of the Senior ROTC at
another institution of higher education. The Military Service
concerned, and the Office of the Secretary of Homeland Security when
the Coast Guard is operating as a service in the Department of Homeland
Security, shall seek written confirmation of the school's policy from
the head of the school through a letter of inquiry. A letter similar to
that shown in Appendix B of this part shall be used, but it should be
tailored to the situation presented. If written confirmation cannot be
obtained, oral policy statements or attempts to obtain such statements
from an appropriate official of the school shall be documented. A copy
of the documentation shall be provided to the covered school, which
shall be informed of its opportunity to forward clarifying comments
within 30 days to accompany the submission to the PDUSD(P&R).
(3) Evaluate responses to the letter of inquiry, and other such
evidence obtained in accordance with this part, and submit to the
PDUSD(P&R) the names and addresses of covered schools that are believed
to be in violation of policies established in Sec. 216.4. Full
documentation shall be furnished to the PDUSD(P&R) for each such
covered school, including the school's formal response to the letter of
inquiry, documentation of any oral response, or evidence showing that
attempts were made to obtain either written confirmation or an oral
statement of the school's policies.
(c) The Heads of the DoD components and Secretary of Homeland
Security shall:
(1) Provide the PDUSD(P&R) with the names and addresses of covered
schools identified as a result of evaluation(s) required under Sec.
216.4(d) and (e).
(2) Take immediate action to deny obligations of covered funds to
covered schools identified under paragraph (a)(1)(ii) of this section,
and to restore eligibility of covered schools identified under
paragraph (a)(2) of this section.
Sec. 216.6 Information requirements.
The information requirements identified at Sec. 216.5(b) and
(c)(1) have been assigned Report Control Symbol DD-P&R-(AR)-2038 in
accordance with DoD 8910.1-M.\14\
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\14\Copies may be obtained at http://www.dtic.mil/whs/directives/.
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Appendix A of Part 216--Military Recruiting Sample Letter of Inquiry
(Tailor letter to situation presented)
Dr. John Doe
President
ABC University
Anywhere, USA 12345-9876
Dear Dr. Doe:
I understand that military recruiting personnel [have been
unable to recruit or have been refused student-recruiting
information \15\ at (subelement of) ABC University)] by a policy or
practice of the school. Specifically, military recruiting personnel
have reported [here state policy decisions or practices
encountered]. [If preliminary information coming to the attention of
a Military Service indicates that other Military Services'
recruiting representatives have been similarly informed of the
policy or experienced a similar practice affecting their ability for
military recruiting purposes to have the access or information
require, so state.]
---------------------------------------------------------------------------
\15\ Student-recruiting information refers to a student's name,
address, telephone listing, age (or year of birth), level of
education (e.g., freshman, sophomore, or degree awarded for a recent
graduate), and major(s).
---------------------------------------------------------------------------
Current Federal law \16\ denies the use of certain Federal funds
through grants or contracts, to include payment on such contracts or
grants previously obligated, (excluding any Federal funding to an
institution of higher education, or to an individual, to be
available solely for student financial assistance, related
administrative costs, or costs associated with attendance) from
appropriations of the Departments of Defense, Transportation, Labor,
Health and Human Services, Education, and related agencies to
institutions of higher education (including any subelements of such
institutions) that have a policy or practice of denying military
recruiting personnel access to campuses or access to students on
campuses, in a manner that is at least equal in quality and
scope,\17\ as it provides to the
[[Page 25720]]
nonmilitary recruiter receiving the most favorable access, or access
to student recruiting information. Implementing regulations are
codified at 32 Code of Federal Regulations, part 216.
---------------------------------------------------------------------------
\16\ 10 U.S.C. 983.
\17\ Rumsfeld v. Forum for Academic and Institutional Rights,
Inc., 126 S. Ct. 1297 (2006):
``The statute requires the Secretary of Defense to compare the
military's `access to campuses' and `access to students' to `the
access to campuses and to students that is provided to any other
employer.' (Emphasis add [by Court].) * * *
The Solomon Amendment does not focus on the content of a
school's recruiting policy, [but instead on] the result achieved by
the policy and compares the `access * * * provided' military
recruiters to that provided other recruiters. Applying the same
policy to all recruiters is therefore insufficient to comply with
the statute if it results in a greater level of access for other
recruiters than for the military. * * *
Not only does the text of the statute support this view, but
this interpretation is necessary to give effect to the Solomon
Amendment's recent revision.''
---------------------------------------------------------------------------
This letter provides you an opportunity to clarify your
institution's policy regarding military recruiting on the campus of
[University]. In that regard, I request, within the next 30 days, a
written policy statement of the institution with respect to access
to campus and students by military recruiting personnel. Your
response should highlight any difference between access for military
recruiters and access for recruiting by other potential employers.
Based on this information and any additional facts you can
provide, Department of Defense officials will make a determination
as to your institution's eligibility to receive funds by grant or
contract. That decision may affect eligibility for funding from
appropriations of the Departments of Defense, Transportation, Labor,
Health and Human Services, Education, and related agencies. Should
it be determined that [University] as an institution of higher
education (or any subelement of the institution) is in violation of
the aforementioned statutes and regulations, such funding would be
stopped, and the institution of higher education (including any
subelements of the institution) would remain ineligible to receive
such funds until and unless the Department of Defense determines
that the institution has ceased the offending policies and
practices.
I regret that this action may have to be taken. Successful
recruiting requires that Department of Defense recruiters have equal
access to students on the campuses of colleges and universities [and
student-recruiting information], and at the same time, have
effective relationships with the officials and student bodies of
those institutions. I hope it will be possible to identify and
correct any policies or practices that inhibit military recruiting
at your school. [My representative, (name), is] [I am] available to
answer any of your questions by telephone at [telephone number]. I
look forward to your reply.
Sincerely,
Appendix B of Part 216--ROTC Sample Letter of Inquiry
(Tailor letter to situation presented)
Dr. Jane Smith
President
ABC University
Anywhere, USA 12345-9876
Dear Dr. Smith:
I understand that ABC University has [refused a request from a
Military Department to establish a Senior ROTC unit at your
institution][refused to continue existing ROTC programs at your
institution][prevented students from participation at a Senior ROTC
program at another institution] by a policy or practice of the
University.
Current Federal law \18\ denies the use of certain Federal funds
through grants or contracts, to include payment on such contracts or
grants previously obligated, (excluding any Federal funding to an
institution of higher education, or to an individual, to be
available solely for student financial assistance, related
administrative costs, or costs associated with attendance) from
appropriations of the Departments of Defense, Transportation, Labor,
Health and Human Services, Education, and related agencies to
institutions of higher education (including any subelements of such
institutions) that have a policy or practice of prohibiting or
preventing the Secretary of Defense from maintaining, establishing,
or efficiently operating a Senior ROTC unit. Implementing
regulations are codified at 32 Code of Federal Regulations, part
216.
---------------------------------------------------------------------------
\18\ 10 U.S.C. 983.
---------------------------------------------------------------------------
This letter provides you an opportunity to clarify your
institution's policy regarding ROTC access on the campus of ABC
University. In that regard, I request, within the next 30 days, a
written statement of the institution with respect to [define the
problem area(s)].
Based on this information, Department of Defense officials will
make a determination as to your institution's eligibility to receive
the above-referenced funds by grant or contract. That decision may
affect eligibility for funding from appropriations of the
Departments of Defense, Transportation, Labor, Health and Human
Services, Education, and related agencies. Should it be determined
that [University] as an institution of higher education (or any
subelement of the institution) is in violation of the aforementioned
statutes and regulations, such funding would be stopped, and the
institution of higher education (including any subelements of the
institution) would remain ineligible to receive such funds until and
unless the Department of Defense determines that the institution has
ceased the offending policies and practices.
I regret that this action may have to be taken. Successful
officer procurement requires that the Department of Defense maintain
a strong ROTC program. I hope it will be possible to [define the
correction to the aforementioned problem area(s)]. [My
representative, (name), is] [I am] available to answer any of your
questions by telephone at [telephone number]. I look forward to your
reply.
Sincerely,
Dated: May 1, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E7-8662 Filed 5-4-07; 8:45 am]
BILLING CODE 5001-06-P