[Federal Register: October 23, 1998 (Volume 63, Number 205)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 216
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 military recruiting 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.