[Federal Register: October 23, 1998 (Volume 63, Number 205)]
[Rules and Regulations
[Page 56819-56824]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc98-9]


DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 216
RIN 0790-AG42
Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education
AGENCY: Department of Defense. 
ACTION: Final rule. 

SUMMARY: The Department of Defense promulgates the rule addressing military recruiting and Reserve Officer Training Corps program access at institutions of higher education. This rule implements the National Defense Authorization Act for Fiscal Year 1995, the National Defense Authorization Act for Fiscal Year 1996, and the Omnibus Consolidated Appropriations Act, 1997 (the Acts).

The Acts state that no funds available under appropriations acts for any fiscal year for the Departments of Defense, Transportation (with respect to militaryrecruiting), Labor, Health and Human Services, Education, and Related Agencies may be provided by contract or grant (including a grant of funds to be available for student aid) to 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 obtaining, for military recruiting purposes, entry to campuses, access to students on campuses, access to directory information on students, or that has an anti-ROTC policy.

EFFECTIVE DATE: March 29, 1997.
FOR FURTHER INFORMATION CONTACT: 
William J. Carr, (703) 697-8444. 

SUPPLEMENTARY INFORMATION: On April 8, 1997 the Department of Defense published an interim rule to implement the Acts, and invited public comments by July 7, 1997 (62 FR 16691). Consistent with the Acts, the interim rule took effect on March 29, 1997. Public comments were received and appropriate adjustments were made as reflected in this final rule.

The Secretary is committed to establishing sound procedures to implement current statutes, while keeping the regulatory burden to the minimum necessary to carry out the congressional intent. To that end, the Department has finalized this rule in consultation with other Federal agencies, including the Departments of Education, Labor, Transportation, and Health and Human Services. Agencies affected by this rule will continue to coordinate as they implement its provisions.

This 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 entry to campuses, access to students on campuses, or access to directory information on students. The Acts establish that 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 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 Acts, the supporting facts would be forwarded through Department of Defense channels to the decision authority, who is the Assistant Secretary of Defense for Force Management Policy (ASD(FMP).

The Department of Defense received and considered comments relating to this rule. Those comments frequently related to the interplay between the Acts and Family Educational Rights and Privacy Act of 1974, as amended (FERPA), 20 U.S.C. 1232g. Commenters have inquired whether release of student information in response to a request from a military recruiter would violate FERPA. Commenters pointed out that "directory information'' is a term of art under FERPA that triggers particular responsibilities of the institution regarding the confidentiality of student information. Depending on the policy of a particular institution, that term may not necessarily refer to the same information that may be requested by a military recruiter. Commenters also pointed out that FERPA provides a mandatory opportunity for a student to object to release of "directory information'' designated by an [[Page 56820]]

institution, and questioned whether the same opportunity to object must be provided to a student if a request is received from a military recruiter.

In response to the basic question of whether providing information in response to a request from a military recruiter would violate FERPA, the Department of Education has informed the Department of Defense that it will not consider provision of responsive student information as required under the Acts and this rule to violate FERPA. Institutions must take care, however, to release only that information specifically required under the Acts and this rule.

The Department of Defense appreciates the comments received regarding possible confusion from the use of the term "directory information'' in the interim rule. Because the term is not synonymous under FERPA or the Acts, and to avoid possible conflict or confusion, the final rule substitutes the term "student recruiting information'' for "directory information'' as that term was used in the interim rule.

Regarding the opportunity for a student to "opt-out'' of or object to 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 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 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 the Acts. 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. The Department of Defense will also honor the "opt-out'' in cases where the institution's "directory information'' definition does not include all of the student recruiting information requested by the recruiter.

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 on 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.

In carrying out their customary activities, DOD components must identify any institutions of higher education that, by policy or practice, denies militaryrecruiting personnel entry to the campus(es) of those schools, access to their students, or access to student recruiting information. When repeated 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 to accompany the DOD component's submission to the ASD(FMP), and shall be provided 30 day to offer such clarifying comments. When that 30-day period has elapsed, the DOD component will forward the case for disposition.

Similarly, in carrying out their customary activities, DOD components also must identify any institutions of higher education 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 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 to accompany the DOD component's submission to the ASD(FMP), and shall be provided 30 days to offer such clarifying comments. 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 ASD(FMP) the names and addresses of covered schools that are believed to be in violation of current law. Full documentation must be furnished to the ASD(FMP) 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.

Following any determination by the ASD(FMP) that policies or practices of an institution of higher education require ineligibility for certain Federal funding, as required by the Acts, the ASD(FMP) shall:

  • Disseminate to Federal entities affected by the decision, including the DoD components and the General Services Administration (GSA), the names of the affected institutions. The ASD(FMP) also shall notify the Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives;

  • Publish in the Federal Register each such determination, and publish in the Federal Register at least once every six 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 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 ASD(FMP) 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.

[[Page 56821]]

Other Matters

In the event of any determination of ineligibility by the ASD(FMP), the affected Federal agencies 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 agencies affected, this rule does not detail what specific funds are affected by any determination of ineligibility.

The Department of Education has provided information on the impact of the Acts on the programs of student financial assistance under Title IV of the Higher Education Act of 1965, as amended, in a January 1998 "Dear Colleague Letter'' (No. GEN-98-3). That letter is available by request by calling 800-4FEDAID, or through the Department of Education's website at "http://www.ed.gov/offices/OPE/announce/dcl/ 1998/''.

The Secretary of Education has determined that funds under the Federal Pell Grant Program (Title IV, Part A, Subpart 1), the Federal Family Education Loan Program (Title IV, Part B), the Federal Direct Student Loan Program (Title IV, Part D), the William D. Ford Federal Direct Loan Program (Title IV, Part D), the State Student Incentive Grant Program (Title IV, Part A, Subpart 4), the Robert C. Byrd Honor Scholarship Program (Title IV, Part A, Subpart 6), and the National Early Intervention Scholarship ad Partnership (NEISP) Program (Title IV, Part A, Subpart 2) are not affected. States that receive NEISP Program grants may continue to award student scholarships to be utilized at institutions that have been determined to be ineligible by the DoD. States may not, however, award sub-grants or contracts for NEISP services to such institutions.

The Secretary of Education has determined that funds under the following programs are affected: the Federal Supplemental Educational Opportunity Grant Program (Title IV, Part A, Subpart 3), the Federal Work-Study Program (Title IV, Part C), and the Federal Perkins Loan Program (Title IV, Part E). Collectively referred to as the campus- based programs, these three programs depend on institutional applications for funding. Once funds are received, the institution determines which students will receive allotted funds, within statutory and regulatory guidelines. Thus, for the purposes of this rule, these funds are considered to be grants to the institution.

Executive Order 12866, "Regulatory Planning and Review''

It has been determined that this final rule is not a significant regulatory action for OMB review since the consequences outlined in Executive Order 12866 are not likely to occur, given the historically infrequent occurrence of denial of funding to institutions of higher education under this rule.

Pub. L. 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 its provisions are not applicable to the vast majority of institutions of higher education.

Pub. L. 96-511, "Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

This final rule will not impose any additional reporting or record keeping requirements under the Paperwork Reduction Act.

List of Subjects in 32 CFR Part 216

Armed forces, Colleges and universities.

Accordingly, 32 CFR part 216 is revised 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 the National Defense Authorization Act of 1995 (108 Stat. 2663),

(b) Implements 10 U.S.C. 983, and

(c) Implements the Omnibus Consolidated Appropriations Act, 1997 (110 Stat. 3009).

(d) Updates policy and responsibilities relating to the management of covered schools that have a policy of either denying, or effectively preventing military recruiting personnel entry to their campuses, access to their students, or access to student recruiting information.

(e) 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, 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''). The policies herein also affect the Departments of Transportation, Labor, Health and Human Services, Education, and Related Agencies. 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 Physician Payment Review Commission, the Prospective payment Assessment 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 school. An institution of higher education, or a subelement of an institution of higher education, subject to the following clarifications:

(1) In the event of a determination (Sec. 216.5) affecting only a subelement of a parent institution (see Sec. 216.3(d)), the limitations on the use of funds (Sec. 216.4(a) and (b)) shall apply only to the subelement and not to the parent institution as a whole.

(2) The limitations on the use of funds (Sec. 216.4(a) and (b)) shall not apply to any individual institution of higher [[Page 56822]]education that is part of a single university system if that individual institution does not prevent entry to campus, access to students, or access to student recruiting information by military recruiters, or have an anti-ROTC policy, even though another campus of the same system is affected by a determination under Sec. 216.5(a).

(c) Student recruiting information. For those currently enrolled, the 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.

(d) 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, or other graduate schools). For example, the School of Law of XYZ University is a subelement of its parent institution (XYZ University).

(e) Student. An individual who is 17 years of age or older and is enrolled at a covered school.

(f) Enrolled. Registered for a least one credit hour of academic credit at the covered school during the most-recent, current, or next term.

(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.

Sec. 216.4 Policy.

It is policy that:

(a) Under 108 Stat. 2663 and 110 Stat. 3009, no funds available under appropriations acts for any fiscal year for the Departments of Defense, Transportation (with respect to military recruiting), Labor, Health and Human and Human Services, Education, and Related Agencies may be provided by contract or by grant (including a grant of funds to be available for student aid) to a covered school if the Secretary of Defense determines that the covered school has a policy or practice (regardless of when implemented) that either prohibits or in effect prevents the Secretary of Defense from obtaining, for military recruiting purposes, entry to campuses, access to students on campuses, or access to directory information on students (student recruiting information).

(b) Under 110 Stat. 3009, no funds available under appropriations acts for any fiscal year for the Departments of Labor, Health and Human Services, Education, and Related Agencies may be provided by contract or grant (including a grant of funds to be available for student aid) to a covered school that has an anti-ROTC policy or practice (regardless of when implemented). Additionally, under 10 U.S.C. 983, no funds appropriated or otherwise available to the Department of Defense may be made obligated by contract or by grant to a covered school that has such a policy or practice.

(c) 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 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 at least equal in quality and scope to that afforded to other employers;

(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 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 specific students, certifies that each student concerned has formally requested the covered school to withhold this information from third parties;

(6) Permits employers to recruit on the premises of the covered school only in response to an expression of student interest, and the covered school;

(i) Provides the Military Services with the same opportunities to inform the students of military recruiting activities as are available to other employers; or

(ii) Certifies that too few students have expressed an interest to warrant accommodating military recruiters, applying the same criteria that are applicable to other employers; or

(7) Is prohibited by the law of any State, or by the order of any State court, from allowing Federal military recruiting on campus. Such exemption does not apply to funds available to the Department of Defense, in accordance with 108