[House Report 108-443]
[From the U.S. Government Publishing Office]
108th Congress Rept. 108-443
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
TO AMEND TITLE 10, UNITED STATES CODE, AND THE HOMELAND SECURITY ACT OF
2002 TO IMPROVE THE ABILITY OF THE DEPARTMENT OF DEFENSE TO ESTABLISH
AND MAINTAIN SENIOR RESERVE OFFICER TRAINING CORPS UNITS AT
INSTITUTIONS OF HIGHER EDUCATION, TO IMPROVE THE ABILITY OF STUDENTS TO
PARTICIPATE IN SENIOR ROTC PROGRAMS, AND TO ENSURE THAT INSTITUTIONS OF
HIGHER EDUCATION PROVIDE MILITARY RECRUITERS ENTRY TO CAMPUSES AND
ACCESS TO STUDENTS THAT IS AT LEAST EQUAL IN QUALITY AND SCOPE TO THAT
PROVIDED TO ANY OTHER EMPLOYER
__________
R E P O R T
of the
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ON
H.R. 3966
together with
ADDITIONAL VIEWS
March 23, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_____
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
HOUSE COMMITTEE ON ARMED SERVICES
One Hundred Eighth Congress
DUNCAN HUNTER, California, Chairman
CURT WELDON, Pennsylvania IKE SKELTON, Missouri
JOEL HEFLEY, Colorado JOHN SPRATT, South Carolina
JIM SAXTON, New Jersey SOLOMON P. ORTIZ, Texas
JOHN M. McHUGH, New York LANE EVANS, Illinois
TERRY EVERETT, Alabama GENE TAYLOR, Mississippi
ROSCOE G. BARTLETT, Maryland NEIL ABERCROMBIE, Hawaii
HOWARD P. ``BUCK'' McKEON, MARTY MEEHAN, Massachusetts
California SILVESTRE REYES, Texas
MAC THORNBERRY, Texas VIC SNYDER, Arkansas
JOHN N. HOSTETTLER, Indiana JIM TURNER, Texas
WALTER B. JONES, North Carolina ADAM SMITH, Washington
JIM RYUN, Kansas LORETTA SANCHEZ, California
JIM GIBBONS, Nevada MIKE McINTYRE, North Carolina
ROBIN HAYES, North Carolina CIRO D. RODRIGUEZ, Texas
HEATHER WILSON, New Mexico ELLEN O. TAUSCHER, California
KEN CALVERT, California ROBERT A. BRADY, Pennsylvania
ROB SIMMONS, Connecticut BARON P. HILL, Indiana
JO ANN DAVIS, Virginia JOHN B. LARSON, Connecticut
ED SCHROCK, Virginia SUSAN A. DAVIS, California
W. TODD AKIN, Missouri JAMES R. LANGEVIN, Rhode Island
J. RANDY FORBES, Virginia STEVE ISRAEL, New York
JEFF MILLER, Florida RICK LARSEN, Washington
JOE WILSON, South Carolina JIM COOPER, Tennessee
FRANK A. LoBIONDO, New Jersey JIM MARSHALL, Georgia
TOM COLE, Oklahoma KENDRICK B. MEEK, Florida
JEB BRADLEY, New Hampshire MADELEINE Z. BORDALLO, Guam
ROB BISHOP, Utah RODNEY ALEXANDER, Louisiana
MICHAEL TURNER, Ohio TIM RYAN, Ohio
JOHN KLINE, Minnesota
CANDICE S. MILLER, Michigan
PHIL GINGREY, Georgia
MIKE ROGERS, Alabama
TRENT FRANKS, Arizona
Robert S. Rangel, Staff Director
C O N T E N T S
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Page
Purpose and Background........................................... 3
Legislative History.............................................. 4
Section-by-Section Analysis...................................... 5
Section 1--Short Title....................................... 5
Section 2--Findings.......................................... 5
Section 3--Certification of Compliance with ROTC Access
Provisions................................................. 5
Section 4--Equal Treatment of Military Recruiters with other
Recruiters................................................. 6
Section 5--Prohibition of Funding for Post-Secondary Schools
that Prevent ROTC Access or Military Recruiting............ 6
Section 6--Exclusion of Amounts to Cover Individual Payments. 6
Executive Communication.......................................... 7
Committee Position............................................... 7
Communications from other Committees............................. 8
Committee Cost Estimate.......................................... 13
Oversight Findings............................................... 13
Constitutional Authority Statement............................... 13
Statement of Federal Mandates.................................... 13
Record Votes..................................................... 13
Changes in Existing Law Made by the Bill, as Reported............ 13
Additional Views................................................. 17
Additional views of Jim Marshall............................. 17
108th Congress Rept. 108-443
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
ROTC AND MILITARY RECRUITER EQUAL ACCESS TO CAMPUS ACT OF 2004
_______
March 23, 2004.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hunter, from the Committee on Armed Services, submitted the
following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 3966]
The Committee on Armed Services, to whom was referred the
bill (H.R. 3966) to amend title 10, United States Code, and the
Homeland Security Act of 2002 to improve the ability of the
Department of Defense to establish and maintain Senior Reserve
Officer Training Corps units at institutions of higher
education, to improve the ability of students to participate in
Senior ROTC programs, and to ensure that institutions of higher
education provide military recruiters entry to campuses and
access to students that is at least equal in quality and scope
to that provided to any other employer, having considered the
same, report favorably thereon with amendments and recommend
that the bill as amended do pass.
The amendments are as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``ROTC and Military Recruiter Equal
Access to Campus Act of 2004''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Reserve Officers Training Corps (ROTC) program is the
most common path for undergraduates to become United States
military officers.
(2) The inclusion of both public and private undergraduate
institutions in the ROTC program insures a more racially,
ethnically, and socially diverse pool for leadership in the
higher ranks of the Armed Forces.
(3) The majority of both minority officers and female
officers in the Armed Forces are acquired through undergraduate
ROTC programs.
(4) The presence of ROTC programs on college campuses
benefits even those students who are not enrolled by making
them aware of the presence and role of the United States
military.
(5) Land-grant colleges received land from the United States
on the condition that they offer some military instruction in
addition to their regular curriculum, forming the basis for the
Nation's tradition of college and university acceptance of
responsibility to contribute to the Nation's readiness.
(6) The Armed Forces face a constant challenge in recruiting
top-quality personnel that ROTC programs are ideally suited to
meet.
(7) Military recruiters should have access to college
campuses and to college students equal in quality and scope to
that provided all other employers.
(8) If any college or university discriminates against ROTC
programs or military recruiters, then under current law that
college or university becomes ineligible for certain Federal
taxpayer support, especially funding for many military and
defense programs.
(9) The personnel and programs of the Department of Homeland
Security and the Department of Energy are mutually dependent
upon a high caliber of well-educated, professional leadership
in the Armed Forces in order to protect the people and
territory of the United States.
(10) In order to more fully promote the ability of the
Nation's Armed Forces to recruit on college campuses and to
facilitate the ability of students to participate in ROTC
programs on campus, the laws to prevent discrimination against
ROTC and military recruiters should be updated.
SEC. 3. CERTIFICATION OF COMPLIANCE WITH ROTC ACCESS PROVISIONS.
Subsection (a) of section 983 of title 10, United States Code, is
amended--
(1) by inserting ``(1)'' before ``No funds'';
(2) by striking ``prevents--'' and inserting ``prevents,
either (or both) of the following:'';
(3) by striking ``(1) the'' and inserting ``(A) The'';
(4) by striking ``; or'' and inserting a period;
(5) by striking ``(2) a'' and inserting ``(B) A''; and
(6) by adding at the end the following:
``(2)(A) Not later than 180 days after the date of the enactment of
the ROTC and Military Recruiter Equal Access to Campus Act of 2004 and
annually thereafter, the Secretary of Defense shall request from each
institution of higher education that has students participating in a
Senior Reserve Officer Training Corps program during the then-current
academic year of that institution a certification that such
institution, during the next academic year of the institution, will--
``(i) permit the Secretary of each military department to
maintain a unit of the Senior Officer Training Corps (in
accordance with subsection (a)) at that institution (or any
subelement of that institution), should such Secretary elect to
maintain such a unit; and
``(ii) if the Secretary of the military department concerned
elects not to establish or maintain a unit of the Senior
Reserve Officer Training Corps at that institution, permit a
student of that institution (or any subelement of that
institution) to enroll in a unit of the Senior Reserve Officer
Training Corps at another institution of higher education.
``(B) Any certification under subparagraph (A) shall be made by the
president of the institution (or equivalent highest ranking
administrative official) and shall be submitted to the Secretary of
Defense no later than 90 days after receipt of the request from the
Secretary.
``(C) In the case of any institution from which a certification is
requested under subparagraph (A), if the Secretary of Defense does not
receive a certification in accordance with subparagraph (B), or if the
certification does not state that the university will comply with both
clauses (i) and (ii) of subparagraph (A) during its next academic year,
the Secretary shall make a determination under paragraph (1) as to
whether the institution has a policy or practice described in that
paragraph.''.
SEC. 4. EQUAL TREATMENT OF MILITARY RECRUITERS WITH OTHER RECRUITERS.
Subsection (b)(1) of section 983 of title 10, United States Code, is
amended--
(1) by striking ``entry to campuses'' and inserting ``access
to campuses''; and
(2) by inserting before the semicolon at the end the
following: ``in a manner that is at least equal in quality and
scope to the degree of access to campuses and to students that
is provided to any other employer''.
SEC. 5. PROHIBITION OF FUNDING FOR POST-SECONDARY SCHOOLS THAT PREVENT
ROTC ACCESS OR MILITARY RECRUITING.
(a) Covered Funds.--Subsection (d) of section 983 of title 10, United
States Code, is amended--
(1) in paragraph (1)--
(A) by striking ``limitation established in
subsection (a) applies'' and inserting ``limitations
established in subsections (a) and (b) apply'';
(B) in subparagraph (B), by inserting ``for any
department or agency for which regular appropriations
are made'' after ``made available''; and
(C) by adding at the end the following new
subparagraphs:
``(C) Any funds made available for the Department of Homeland
Security.
``(D) Any funds made available for the National Nuclear
Security Administration of the Department of Energy.
``(E) Any funds made available for the Department of
Transportation.
``(F) Any funds made available for the Central Intelligence
Agency.''; and
(2) by striking paragraph (2).
(b) Conforming Amendments.--(1) Subsection (b) of such section is
amended by striking ``subsection (d)(2)'' and inserting ``subsection
(d)(1)''.
(2) Subsection (e) of such section is amended by inserting ``, to the
head of each other department and agency the funds of which are subject
to the determination,'' after ``Secretary of Education''.
SEC. 6. EXCLUSION OF AMOUNTS TO COVER INDIVIDUAL PAYMENTS.
(a) Codification and Extension of Exclusion.--Subsection (d) of
section 983 of title 10, United States Code, as amended by section
5(a), is further amended--
(1) by striking ``The'' after ``(1)'' and inserting ``Except
as provided in paragraph (2), the''; and
(2) by adding at the end the following new paragraph:
``(2) Any Federal funding specified in paragraph (1) 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, may be used
for the purpose for which the funding is provided.''.
(b) Conforming Amendments.--Subsections (a) and (b) of such section
are amended by striking ``(including a grant of funds to be available
for student aid)''.
(c) Conforming Repeal of Codified Provision.--Section 8120 of the
Department of Defense Appropriations Act, 2000 (Public Law 106-79; 10
U.S.C. 983 note), is repealed
SEC. 7. EFFECTIVE DATE.
The amendments made by this Act shall apply with respect to funds
appropriated for fiscal year 2005 and thereafter.
Amend the title so as to read:
A bill to amend title 10, United States Code, to improve
the ability of the Department of Defense to establish and
maintain Senior Reserve Officer Training Corps units at
institutions of higher education, to improve the ability of
students to participate in Senior ROTC programs, and to ensure
that institutions of higher education provide military
recruiters entry to campuses and access to students that is at
least equal in quality and scope to that provided to any other
employer.
Purpose and Background
The purpose of H.R. 3966, the ROTC and Military Recruiter
Equal Access to Campus Act of 2004, is to amend section 983 of
title 10, United States Code, the so-called Solomon Law. The
bill would improve the ability of the Department of Defense
(DOD) to establish and maintain Senior Reserve Officer Training
Corps (ROTC) units at institutions of higher education, to
improve the ability of students to participate in Senior ROTC
programs, and to ensure that institutions of higher education
provide military recruiters entry to campuses and access to
students that is at least equal in quality and scope to that
provided to any other employer.
The committee believes that at no time since World War II,
has our Nation's freedom and security relied more upon our
military than now as we engage in the global war on terrorism.
Our Nation's all volunteer armed services have been called upon
to serve and they are performing their mission at the highest
standard. The military's ability to perform at this standard
can only be maintained with effective and uninhibited
recruitment programs.
Successful recruitment relies heavily on the ability of
military recruiters to have access to students on the campuses
of colleges and universities that is equal to other employers.
In addition, students must have the option available, if they
so choose, to join the Reserve Officer Training Program at
their school or one nearby. H.R. 3966, as amended, helps
achieve both of these objectives. The bill is based on a simple
principle: colleges and universities that accept federal
funding should also be willing to permit military recruiters
equal access to students and ROTC scholarship programs.
Congress reasserted this principle in the National Defense
Authorization Act for Fiscal Year 1995 (Public Law 103-337)
that denied DOD funds to colleges and universities that
prohibited military recruiters' access to campus, to students
and to school directory information. The following year,
Congress, through the enactment of the National Defense
Authorization Act for Fiscal Year 1996 (Public Law 104-106),
imposed the loss of DOD funding on institutions of higher
learning that had an ``anti-ROTC'' policy. That same year
Congress, in the enactment of the Omnibus Consolidated
Appropriations Act, 1997 (Public Law 104-208), added the
Departments of Education, Labor, and Health and Human Services
to the list of funding sources that could be terminated.
Further revisions, enacted as part of the National Defense
Authorization Act of 2000 (Public Law 106-65), added
Transportation Department funding to the list of covered funds.
More recently the Homeland Security Act of 2002 (Public Law
107-296), added funding from the Department of Homeland
Security to the list.
H.R. 3966 continues the refinement of the Solomon Law, and
addresses some specific issues that have recently arisen.
Specifically, H.R. 3966 would:
(1) Require colleges and universities to give military
recruiters access to campus and to students that is equal in
quality and scope as that provided to any other employer.
(2) Require an annual verification from colleges and
universities who already support ROTC that they will continue
to do so in the upcoming academic year.
(3) Add two additional defense-related funding sources, the
Central Intelligence Agency and the National Nuclear Security
Administration of the Department of Energy, to the list of
covered funds that potentially could be terminated. It also
restores Department of Transportation to the list of funds that
might be terminated. These were inadvertently deleted as a
result of confirming changes to the Solomon Law generated by
the Homeland Security Act of 2002.
Legislative History
H.R. 3966 was introduced on March 12, 2004, and referred to
the Committee on Armed Services, and in addition to the
Committee on Education and the Workforce, for a period to be
subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the
jurisdiction of the committee concerned.
On March 17, 2004, the Committee on Armed Services held a
mark-up session to consider H.R. 3966. The committee adopted
the bill with amendments and reported the same favorably by a
voice vote.
Section-By-Section Analysis
The following is a section-by-section analysis of those
sections of H.R. 3966 as amended by the Armed Services
Committee.
SECTION 1--SHORT TITLE
This section would establish the short title of the bill as
the ``ROTC and Military Recruiter Access to Campus Act of
2004.''
SECTION 2--FINDINGS
This section would establish several Congressional findings
with regard to the value to the nation and to the military
services of the Reserve Officer Training Corps being able to
produce qualified officers in sufficient numbers and from
diverse social backgrounds for the armed forces. The section
would also explicitly establish Congress' intent that military
recruiters should have access to university and college
campuses and students that is equal in quality and scope to any
other employer.
SECTION 3--CERTIFICATION OF COMPLIANCE WITH ROTC ACCESS PROVISIONS
This section would amend section 983 of title 10, United
States Code, the so-called Solomon Law. It would require the
Secretary of Defense to annually request from colleges and
universities that either host Reserve Officer Training Corps
(ROTC) programs, or that allow their students to participate in
an ROTC program at another university or college, a
certification for the next academic year. That certification
would state whether the college or university will allow ROTC
to be operated on campus if a military service desires to do
so, or if the military services elect not to operate a
detachment on campus, whether the college or university will
permit its students to participate in an ROTC program at
another college or university.
If the certification is not provided, then the Secretary of
Defense would be required to determine whether such lack of
certification constitutes a violation of section 983 of title
10, United States Code.
Thus, this section would provide a means for the Secretary
of Defense to determine in advance whether colleges and
universities, with ROTC detachments, or whose students
participate in another ROTC detachment, intend in the upcoming
academic year to change policy with regard to ROTC access. Such
notification facilitates the Department of Defense planning
process for ROTC and minimizes the potential for negative
impacts on students who, in the midst of an academic year,
might otherwise be faced with the effects of a decision by a
school or university to change policy with regard to ROTC
access.
SECTION 4--EQUAL TREATMENT OF MILITARY RECRUITERS WITH OTHER RECRUITERS
This section would require colleges and universities to
give military recruiters access to campuses and to students
that is at least equal in quality and scope as that provided to
any other employer.
For the last several years, a growing number of university
law schools and colleges of law have treated military
recruiters in ways significantly different from the recruiters
of other employers, apparently with the objective of making
recruiting difficult, or to frustrate its objectives.
A November 2003 decision by the U.S. District Court in the
District of New Jersey in the case of Forum for Academic and
Institutional Rights, Inc., et. al. v. Donald Rumsfeld upheld
the constitutionality of the Solomon Law and denied the motion
by a group of law schools and others aimed at stopping the
enforcement of the Solomon Law. However, the court also
determined that the Solomon Law did not give the Department of
Defense a basis for asserting, as it had in the Code of Federal
Regulations that implemented the Solomon Law, that universities
and colleges must give military recruiters the same degree of
access to campuses and students that was provided to other
employers. This section would address the court's opinion and
codify the equal access standard.
SECTION 5--PROHIBITION OF FUNDING FOR POST-SECONDARY SCHOOLS THAT
PREVENT ROTC ACCESS OR MILITARY RECRUITING
This section would add two categories of defense-related
funding that would be terminated for violations under the
Solomon Law. Those added categories of funds are those made
available to the Central Intelligence Agency, and those made
available to the National Nuclear Security Administration of
the Department of Energy.
The section would also restore the funds made available to
the Department of Transportation as being liable for
termination for violations of the Solomon Law. Prior to the
enactment of the Homeland Security Act of 2002 (Public Law 107-
296), funds made available to the entire Department of
Transportation were subject to termination for violations of
the Solomon Law. Conforming changes to title 10, United States
Code, that resulted from enactment of the Homeland Security Act
of 2002 substituted the words ``Department of Homeland
Security'' for ``Department of Transportation.'' The unintended
effect of this conforming change was to narrow the scope of
funding that might be affected by violations of the Solomon
Law.
SECTION 6--EXCLUSION OF AMOUNTS TO COVER INDIVIDUAL PAYMENTS
This section would incorporate into section 983, title 10,
United States Code, the provision of the Department of Defense
Appropriations Act, 2000 (Public Law 106-79) that excluded any
Federal student aid from funding that might be terminated for
violations of the Solomon Law.
EXECUTIVE COMMUNICATION
Department of Defense,
Washington, DC, March 16, 2004.
Hon. Duncan L. Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Our nation's colleges and universities
soon will graduate another class of accomplished, talented
students seeking rewarding employment. The Department of
Defense is proud to offer extraordinary opportunities to
deserving students who seek more than a paycheck--they seek the
honor of serving their country. Regrettably, some colleges and
universities have taken actions to ensure that the Department
is placed at a pronounced competitive disadvantage in relation
to other prospective employers. Although Congress previously
enacted legislation to ensure military recruiters receive
access to students, some colleges and universities remain
intransigent or outright opposed to compliance with this law.
Under normal circumstances, such intransigence and opposition
to the established laws of the land would be unacceptable--but
now, at a time when our nation is at war, this situation is
intolerable.
Certain colleges and universities continue to restrict
access or limit opportunities for military recruiters to
participate fully in job fairs, placement office services, and
interview programs. In a few particularly egregious
circumstances, military recruiters and prospective recruits
have been forced to endure verbal abuse and harassment,
gauntlets of taunting fellow students and faculty impeding the
path to designated interview rooms, and austere, remote
interview locations.
Consistent with Congress's unequivocal direction, the
Department of Defense seeks only the opportunity to compete for
students on a footing equal with other prospective employers.
For this reason, the Department urges your support of section
531 of the Department's proposed provisions for the National
Defense Authorization Act for Fiscal Year 2005, which makes
clear the military recruiters must be provided access to
campuses and students that is at least equal in quality and
scope to that provided any other employer.
The Department of Defense deeply appreciates your continued
support of military recruitment programs. The Office of
Management and Budget advises that, from the standpoint of the
Administration's program, there is no objection to the
presentation of this report for the consideration of this
committee.
Sincerely,
David S. C. Chu, Under Secretary of Defense.
COMMITTEE POSITION
On March 17, 2004, the Committee on Armed Services ordered
H.R. 3966, as amended, reported to the House with a favorable
recommendation by a voice vote, a quorum being present.
COMMUNICATIONS FROM OTHER COMMITTEES
House of Representatives,
Committee on Education and the Workforce,
Washington, DC, March 18, 2004.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Chairman Hunter: I am writing to confirm our mutual
understanding with respect to consideration of H.R. 3966, the
ROTC and Military Recruiter Equal Access to Campus Act of 2004,
which was referred to the Committee on Armed Services and in
addition the Committee on Education and the Workforce.
Provisions of this bill are within the jurisdiction of the
Committee on Education and the Workforce. I understand the
desire to have this legislation considered expeditiously by the
House; hence, I do not intend to hold a hearing or markup on
this legislation.
However, I do so only with the understanding that this
procedural route should not be construed to prejudice the
Committee on Education and the Workforce's jurisdictional
interest and prerogatives on these provisions or any other
similar legislation and will not be considered as precedent for
consideration of matters of jurisdictional interest to my
Committee in the future. Furthermore, should this provision or
similar provisions be included in any Senate amendments thereto
and considered in a conference with the Senate, I would expect
Members of the Committee on Education and the Workforce to be
appointed as conferees on those provisions. Finally, I would
ask that you include a copy of our exchange of letters on this
matter in your report to accompany the bill. If you have
questions regarding this matter, please do not hesitate to call
me. I thank you for your consideration.
Sincerely,
John Boehner, Chairman.
------
House of Representatives,
Committee on Armed Services,
Washington, DC, March 19, 2004.
Hon. John Boehner,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of March 18,
2004, regarding H.R. 3966, the ROTC and Military Recruiter
Equal Access to Campus Act of 2004.
I agree that the Committee on Education and the Workforce
has valid jurisdictional claims to certain provisions in this
important legislation, and I am most appreciative of your
decision not to request such a referral in the interest of
expediting consideration of the bill.
I agree that by foregoing a sequential referral, the
Committee on Education and the Workforce is not waiving its
jurisdiction. Further, I will support your request to the
Speaker for appointment as conferees on the provisions over
which your committee has jurisdiction during any House-Senate
conference. As you requested, this exchange of letters will be
included in the Committee on Armed Services' report on the
bill.
With best wishes.
Sincerely,
Duncan Hunter, Chairman.
------
House of Representatives,
Select Committee on Homeland Security,
Washington, DC, March 19, 2004.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Chairman Hunter: In recognition of the desire to
expedite floor consideration of H.R. 3966, the ``ROTC and
Military Recruiter Equal Access to Campus Act of 2004,'' the
Select Committee on Homeland Security hereby waives
consideration of the bill. H.R. 3966's provisions directly
impact the programs and operations of the Department of
Homeland Security, by limiting its ability to distribute funds
to institutions of higher education by grant or contract.
Accordingly, these provisions fall within the jurisdiction of
the Select Committee under H. Res. 5. However, given the need
to expedite this legislation, I will not seek a sequential
referral of this bill.
The Select Committee on Homeland Security takes this action
with the understanding that its jurisdiction over this
provision is in no way diminished or altered. I would
appreciate your including this letter in the Committee Report
on the bill. Thank you for your consideration.
Sincerely,
Christopher Cox, Chairman.
------
House of Representatives,
Committe on Armed Services,
Washington, DC, March 19, 2004.
Hon. Christopher Cox,
Chairman, Select Committee on Homeland Security,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of March 19,
2004, regarding H.R. 3966, the ROTC and Military Recruiter
Equal Access to Campus Act of 2004.
I agree that the Select Committee on Homeland Security has
valid jurisdictional claims to certain provisions in this
important legislation, and I am most appreciative of your
decision not to request such a referral in the interest of
expediting consideration of the bill.
I agree that by foregoing a sequential referral, the Select
Committee on Homeland Security is not waiving its jurisdiction.
Further, I will support your request to the Speaker for
appointment as conferees on the provisions over which your
committee has jurisdiction during any House-Senate conference.
As you requested, this exchange of letters will be included in
the Committee on Armed Services' report on the bill.
With best wishes.
Sincerely,
Duncan Hunter, Chairman.
------
House of Representatives,
Permanent Select Committee on Intelligence,
Washington, DC, March 22, 2004.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Chairman Hunter: I am writing to confirm our mutual
understanding with respect to consideration of H.R. 3966, the
ROTC and Military Recruiter Equal Access to Campus Act of 2004.
Provisions of this bill are within the jurisdiction of the
House Permanent Select Committee on Intelligence. I support the
legislation and share your desire to have it considered
expeditiously by the House; hence, I do not intend to seek
referral of this legislation to the House Intelligence
Committee.
However, I do so only with the understanding that this
procedural route should not be construed to prejudice the
Intelligence Committee's jurisdictional interest and
prerogatives on these provisions or any other similar
legislation and will not be considered as precedent for
consideration of matters of jurisdictional interest to the
House Intelligence Committee in the future. Furthermore, should
these provisions or similar provisions be included in any
Senate amendments thereto and considered in a conference with
the Senate, I would request that the Speaker appoint Members of
the House Intelligence Committee as conferees on those
provisions. Finally, I would ask that you include a copy of our
exchange of letters on this matter in your report to accompany
the bill. I thank you for your consideration.
Sincerely,
Porter Goss, Chairman.
------
House of Representatives,
Committee on Armed Services,
Washington, DC, March 23, 2004.
Hon. Porter Goss,
Chairman, Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of March 22,
2004, regarding H.R. 3966, the ROTC and Military Recruiter
Equal Access to Campus Act of 2004.
I agree that the Permanent Select Committee on Intelligence
has valid jurisdictional claims to certain provisions in this
important legislation, and I am most appreciative of your
decision not to request such a referral in the interest of
expediting consideration of the bill.
I agree that by foregoing a sequential referral, the
Permanent Select Committee on Intelligence is not waiving its
jurisdiction. Further, I will support your request to the
Speaker for appointment as conferees on the provisions over
which your committee has jurisdiction during any House-Senate
conference. As you requested, this exchange of letters will be
included in the Committee on Armed Services' report on the
bill.
With best wishes.
Sincerely,
Duncan Hunter, Chairman.
------
House of Representatives,
Committee on Science,
Washington, DC, March 22, 2004.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Mr. Chairman: I write regarding the jurisdictional
interest of the Committee on Science in H.R. 3966, the ``ROTC
and Military Recruiter Equal Access to Campus Act of 2004.''
Our Committee recognizes the importance of H.R. 3966.
Therefore, while the Committee has a valid claim to
jurisdiction over certain provisions that include the
Department of Homeland Security and the Department of
Transportation within the scope of the bill, I agree to forego
a sequential referral. This decision does not waive the
jurisdiction of the Committee on Science in future dealings
regarding this bill or similar provisions in other bills.
I request that a copy of this letter and of your response
acknowledging the Committee's jurisdiction over these
provisions be included as part of the legislative report. The
Committee on Science also asks that you support our request to
be conferees on the provisions over which we have jurisdiction
during any House-Senate conference.
Thank you for your cooperation in this matter.
Sherwood L. Boehlert, Chairman.
------
House of Representatives,
Committee on Armed Services,
Washington, DC, March 22, 2004.
Hon. Sherwood L. Boehlert,
Chairman, Committee on Science,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of March 22,
2004, regarding H.R. 3966, the ROTC and Military Recruiter
Equal Access to Campus Act of 2004.
I agree that the Committee on Science has valid
jurisdictional claims to certain provisions in this important
legislation, and I am most appreciative of your decision not to
request such a referral in the interest of expediting
consideration of the bill.
I agree that by foregoing a sequential referral, the
Committee on Science is not waiving its jurisdiction. Further,
I will support your request to the Speaker for appointment as
conferees on the provisions over which your committee has
jurisdiction during any House-Senate conference. As you
requested, this exchange of letters will be included in the
Committee on Armed Services' report on the bill.
With best wishes.
Sincerely,
Duncan Hunter, Chairman.
------
House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, March 17, 2004.
Hon. Duncan Hunter,
Chairman, Committee on Armed Services,
House of Representatives, Washington, DC.
Dear Mr. Chairman: I am writing to you concerning the
jurisdictional interest of the Transportation and
Infrastructure Committee in H.R. 3966, the ROTC and Military
Recruiter Equal Access to Campus Act of 2004.
Our Committee recognizes the importance of H.R. 3966 and
the need for the legislation to move expeditiously. Therefore,
while we have a valid claim to jurisdiction over the bill, I do
not intend to request a sequential referral. This, of course,
is conditional on our mutual understanding that nothing in this
legislation or my decision to forego a sequential referral
waives, reduces or otherwise affects the jurisdiction of the
Transportation and Infrastructure Committee, and that a copy of
this letter and of your response acknowledging our
jurisdictional interest will be included in the Committee
Report on the bill.
The Committee on Transportation and Infrastructure also
asks that you support our request to be conferees on the
provisions over which we have jurisdiction during any House-
Senate conference.
Thank you for your cooperation in this matter.
Don Young, Chairman.
------
House of Representatives,
Committee on Armed Services,
Washington, DC, March 18, 2004.
Hon. Don Young,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Thank you for your letter of March 17,
2004, regarding H.R. 3966, the ROTC and Military Recruiter
Equal Access to Campus Act of 2004.
I agree that the Committee on Transportation and
Infrastructure has valid jurisdictional claims to certain
provisions in this important legislation, and I am most
appreciative of your decision not to request such a referral in
the interest of expediting consideration of the bill.
I agree that by foregoing a sequential referral, the
Committee on Transportation and Infrastructure is not waiving
its jurisdiction. Further, I will support your request to the
Speaker for appointment as conferees on the provisions over
which your committee has jurisdiction during any House-Senate
conference. As you requested, this exchange of letters will be
included in the Committee on Armed Services' report on the
bill.
With best wishes.
Sincerely,
Duncan Hunter, Chairman.
COMMITTEE COST ESTIMATE
Pursuant to clause 3(d) of rule XIII of the Rules of the
House of Representatives, the committee estimates the costs of
implementing the resolution would be minimal. The Congressional
Budget Office did not provide a cost estimate for the
resolution.
OVERSIGHT FINDINGS
With respect to clause 3(c)(1) of rule XIII of the Rules of
the House of Representatives, the committee reports that the
findings and recommendations of the committee, based on
oversight activities pursuant to clause 2(b)(1) of rule X, are
incorporated in the descriptive portions of this report.
With respect to clause 3(c)(2) of rule XIII of the Rules of
the House of Representatives, this legislation does not include
any new spending or credit authority, nor does it provide for
any increase or decrease in tax revenues or expenditures.
With respect to clause 3(c)(4) of rule XIII of the Rules of
the House of Representatives, the bill does not authorize
specific program funding.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the committee finds the authority for
this legislation in Article I, section 8 of the United States
Constitution.
STATEMENT OF FEDERAL MANDATES
Pursuant to section 423 of Public Law 104-4, this
legislation contains no federal mandates with respect to state,
local, and tribal governments, nor with respect to the private
sector. Similarly, the bill provides no unfunded federal
intergovernmental mandates.
RECORD VOTES
In accordance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, no record votes were taken or
requested during the committee's consideration of H.R. 3966.
This measure was ordered reported by voice vote, a majority of
committee members present.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 983 OF TITLE 10, UNITED STATES CODE
Sec. 983. Institutions of higher education that prevent ROTC access or
military recruiting on campus: denial of grants and
contracts from Department of Defense, Department of
Education, and certain other departments and
agencies
(a) Denial of Funds for Preventing ROTC Access to Campus.--
(1) No funds described in subsection (d)(1) may be provided by
contract or by grant [(including a grant of funds to be
available for student aid)] to an institution of higher
education (including any subelement of such institution) if the
Secretary of Defense determines that that institution (or any
subelement of that institution) has a policy or practice
(regardless of when implemented) that either prohibits, or in
effect [prevents--] prevents, either (or both) of the
following:
[(1) the] (A) The Secretary of a military department
from maintaining, establishing, or operating a unit of
the Senior Reserve Officer Training Corps (in
accordance with section 654 of this title and other
applicable Federal laws) at that institution (or any
subelement of that institution)[; or].
[(2) a] (B) A student at that institution (or any
subelement of that institution) from enrolling in a
unit of the Senior Reserve Officer Training Corps at
another institution of higher education.
(2)(A) Not later than 180 days after the date of the
enactment of the ROTC and Military Recruiter Equal Access to
Campus Act of 2004 and annually thereafter, the Secretary of
Defense shall request from each institution of higher education
that has students participating in a Senior Reserve Officer
Training Corps program during the then-current academic year of
that institution a certification that such institution, during
the next academic year of the institution, will--
(i) permit the Secretary of each military department
to maintain a unit of the Senior Officer Training Corps
(in accordance with subsection (a)) at that institution
(or any subelement of that institution), should such
Secretary elect to maintain such a unit; and
(ii) if the Secretary of the military department
concerned elects not to establish or maintain a unit of
the Senior Reserve Officer Training Corps at that
institution, permit a student of that institution (or
any subelement of that institution) to enroll in a unit
of the Senior Reserve Officer Training Corps at another
institution of higher education.
(B) Any certification under subparagraph (A) shall be made by
the president of the institution (or equivalent highest ranking
administrative official) and shall be submitted to the
Secretary of Defense no later than 90 days after receipt of the
request from the Secretary.
(C) In the case of any institution from which a certification
is requested under subparagraph (A), if the Secretary of
Defense does not receive a certification in accordance with
subparagraph (B), or if the certification does not state that
the university will comply with both clauses (i) and (ii) of
subparagraph (A) during its next academic year, the Secretary
shall make a determination under paragraph (1) as to whether
the institution has a policy or practice described in that
paragraph.
(b) Denial of Funds for Preventing Military Recruiting on
Campus.--No funds described in [subsection (d)(2)] subsection
(d)(1) may be provided by contract or by grant [(including a
grant of funds to be available for student aid)] to an
institution of higher education (including any subelement of
such institution) if the Secretary of Defense determines that
that institution (or any subelement of that institution) has a
policy or practice (regardless of when implemented) that either
prohibits, or in effect prevents--
(1) the Secretary of a military department or
Secretary of Homeland Security from gaining [entry]
access to campuses, or access to students (who are 17
years of age or older) on campuses, for purposes of
military recruiting in a manner that is at least equal
in quality and scope to the degree of access to
campuses and to students that is provided to any other
employer; or
* * * * * * *
(d) Covered Funds.--(1) [The limitation established in
subsection (a) applies] Except as provided in paragraph (2),
the limitations established in subsections (a) and (b) apply to
the following:
(A) * * *
(B) Any funds made available for any department or
agency for which regular appropriations are made in a
Departments of Labor, Health and Human Services, and
Education, and Related Agencies Appropriations Act.
(C) Any funds made available for the Department of
Homeland Security.
(D) Any funds made available for the National Nuclear
Security Administration of the Department of Energy.
(E) Any funds made available for the Department of
Transportation.
(F) Any funds made available for the Central
Intelligence Agency.
[(2) The limitation established in subsection (b) applies to
the following:
[(A) Funds described in paragraph (1).
[(B) Any funds made available for the Department of
Homeland Security.]
(2) Any Federal funding specified in paragraph (1) 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, may be used for the purpose for which the
funding is provided.
(e) Notice of Determinations.--Whenever the Secretary of
Defense makes a determination under subsection (a), (b), or
(c), the Secretary--
(1) shall transmit a notice of the determination to
the Secretary of Education, to the head of each other
department and agency the funds of which are subject to
the determination, and to Congress; and
(2) shall publish in the Federal Register a notice of
the determination and the effect of the determination
on the eligibility of the institution of higher
education (and any subelement of that institution) for
contracts and grants.
* * * * * * *
----------
SECTION 8120 OF THE DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2000
[Sec. 8120. During the current fiscal year and hereafter, any
Federal grant of funds to an institution of higher education to
be available solely for student financial assistance or related
administrative costs may be used for the purpose for which the
grant is made without regard to any provision to the contrary
in section 514 of the Departments of Labor, Health and Human
Services, Education, and Related Agencies Appropriations Act,
1997 (10 U.S.C. 503 note), or section 983 of title 10, United
States Code.]
ADDITIONAL VIEWS OF REPRESENTATIVE JIM MARSHALL
Mr. Abercrombie and Mr. Hunter engaged in a helpful debate
prior to our vote to ensure that institutions of higher
education provide military recruiters access to campuses and
students that is at least equal in quality and scope to that
provided any other employer. I voted for the bill although I
share the reservations expressed by Mr. Abercrombie in
explanation of his vote against the bill.
The bill amends existing law that gives the Department of
Defense the sole authority to terminate federal funding of an
educational institution that does not provide access to
military recruiters. The factual inquiry is pretty simple. Was
access provided to military recruiters? Yes or no? A dispute
about such a black and white factual inquiry is very unlikely.
The same cannot be said about the amended law. Whether DoD
was granted ``equal access'' will be an after-the-fact inquiry
with enormous financial consequences hanging on the answer.
Factual disputes will involve murky comparisons of the totality
of the conditions for access offered to military recruiters and
those offered to other recruiters, which may include, for
example, judgments about locations, timing, public notice and
the like. And it may involve some factors beyond the control of
the educational institution, for example, the actions of
protestors.
Our notions of due process rarely warrant establishing the
aggrieved party as prosecutor, judge, and jury. This law does
that, perhaps permissibly, so long as the factual dispute is
simply whether a military recruiter has been allowed on campus.
But given the severe consequences to the institution--the loss
of federal funding--both our legal tradition and simple
fairness dictate that, when evaluating equal access complaints,
DoD, the immediately aggrieved party, not act as prosecutor,
judge and jury. Such a complex and subjective judgment requires
evaluation by a neutral third party.
If the law is to be amended to impose an equal access
requirement, then it should be further amended to provide some
fair process for making that determination. No doubt there are
many examples of reasonable and fair process elsewhere in
federal law that may be adopted here without reinventing the
wheel. But even if we add an amendment that includes
appropriate procedural safeguards, I believe we also should add
additional substantive safeguards.
I am concerned that, literally applied, the law as amended
could result in the removal of an educational institution's
funding if it merely was inadvertent or made a good faith error
in judgment with no real intent to discriminate against
military recruiters or failed to provide equal access as a
result of the actions of independent third parties. Perhaps
this concern already is addressed. If not, it certainly should
be.
That we expect DoD to act in good faith and with fair
judgment is no answer to these concerns. The expectation
``proves too much'' as they say. Such an assertion or argument
can be offered against all procedural safeguards in any
setting.
Finally, Mr. Abercrombie observed that this law offers us
only a sledgehammer even if the offender is less than a flea.
If I understand our committee deliberations, complete loss of
federal funding is the only penalty available even if the
offense is a slight inequality of access. Fair penalties match
the degree of wrong. This evidently does not. The law should
also be amended to provide a range of penalty options as well
as declaratory and injunctive relief.
Again, we needn't reinvent the wheel. Consultation with
Judiciary Committee staff would provide us with many analogous
laws that contain well-conceived and tested procedural and
remedial schemes that would fairly meet our objective of
assuring equal access. These concerns are easy to address. We
should do it.
Jim Marshall.