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The Solomon Amendment

10 U.S.C. 983 ; 32 CFR 216.1 et seq.

The Solomon Amendment was consolidated and codified at 10 U.S.C. § 983 pursuant to Pub. L. No. 106-65, 113 Stat. 512 (1999), § 549 (Recodification and consolidation of statutes denying Federal grants and contracts by certain departments and agencies to institutions of higher education that prohibit Senior ROTC units or military recruiting on campus).

The Solomon Amendment, except as noted below, allows federal funding for an educational institution to be cut if that institution has a policy or practice that prohibits military recruiting on campus, or prohibits access to student directory information for the same purpose, or maintains an anti-ROTC policy.

Final Rule on Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education, 73 Fed. Reg. 16525 (March 28, 2008)
This final rule implements 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) and is effective April 28, 2008. The rule 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 by the school to the any other nonmilitary recruiters or employers receiving the most favorable access.
As an exception to the new 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. When a Component of the Department of Defense believes that policies or practices of an institution of higher education might require an evaluation, that Component is required to confirm the institution's policy in consultation with the institution. FERPA opt out provisions will be honored as long as applied evenly to all prospective employers. The funding that will be affected for non-compliant institutions incudes: US Depts. of Defense, Labor, Homeland Security, Transportation, Health and Human Services, the CIA, and the National Nuclear Security Administration of the Department of Energy. Some Dept. of Education funds may be affected, but not student financial aid, as mentioned above. The new rule removes the exception that allowed schools to limit military recruiting if they certified too few students had expressed an interest.

The Ronald Reagan National Defense Authorization Act for Fiscal Year 2005

The federal defense authorization package (National Defense Authorization Act for Fiscal Year 2005 HR 4200 Section 552* which became Public Law No: 108-375 ) contains a provision to stiffen penalties for colleges that bar military recruiters from their campuses. This modification of the Solomon Amendment requires campuses grant access to military recruiters " a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer." This clarifies that the Department of Defense interpretation rules, despite the court language in the Rumsfeld case.

The amendment expands the scope of federal funds subject to the withholding authorization for violations of the access rights and includes funds from Homeland Security, CIA, Dept. of Transportation, and National Nuclear Security Administration of the Department of Energy, in addition to the already on the list Departments of Defense, Labor, HHS and certain Dept. of Education funds. The new law clarifies that federal student aid from Dept. of Education will not be affected by Solomon noncompliance. This means that federal student aid provided in the form of direct grants to institutions, as well as aid provided directly to students, will not be affected.

Military Recruiting and Reserve Officer Training Corps Program Access to Institutions of Higher Education, 71 Fed. Reg. 31082, June 1, 2006

This document re-establishes the Department of Defense's rules addressing military recruiting and ROTC program access at institutions of higher education. These rules were inadvertently removed from the CFR by a document published in the Federal Register on March 18, 2006. These rules implement 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 military recruiting), 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.

Case Law

Young America's Foundation v. Gates (08-5366) US Court of Appeals for the DC Circuit (decided July 24, 2009)

The Court of Appeals uphold the lower court's decision that plaintiffs did not have standing to compel the Secretary of Defense to enforce the Solomon Amendment vis-a-vis UC-Santa Cruz. The court also stated plaintiff failed to allege facts allowing the court to infer no equal access for military recruiters.

Burt et al. v Gates, (no. 05-1732-cv), Sept. 17, 2007 (2nd Cir)

Decision by 2nd Circuit, where court held that the decision in the Supreme Court case in Rumsfeld controls and rejecting Plaintiff's argument that the Supreme Court did not consider whether the Solomon Amendment violates the First Amendment right to Academic Freedom. See the Inside Higher Ed article titled: Appeals Court Upholds Military Ruling, dated Sept. 19th, 2007.

Rumsfeld v. Forum for Academic and Institutional Rights (No. 04-1152) U.S. Supreme Court (March 6, 2006)

In an opinion (unanimous) delivered by Chief Justice Roberts, the Court rejected FAIR's contention that the Solomon amendment was unconstitutional. The Solomon Amendment, as amended, prevents a school from receiving certain federal funding if it prohibits military recruiters "from gaining access to campuses, or access to students... on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer."

The schools were opposed to allowing the military on campus, due to the military's policy on gays which conflicted with required non-discrimination policies of the law school accrediting organization. Since 1991, the American Association of Law Schools has required its 166 member schools to insist that any prospective employer seeking to use a law school's services for recruiting students must adhere to a policy of not discriminating on the basis of sexual orientation.

In the decision the Court held that there was no impermissible regulation of speech, but simply a regulation of conduct, which is to afford equal access to military recruiters, or to choose to not accept the federal funding. The Court stated as follows:

As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do --afford equal access to military recruiters-- not what they may or may not say.

The Court also rejected the argument by the law schools that there was an expressive element to the conduct regulated by the statute that brought the the conduct within First Amendment protection. Allowing military recruiters on campus was not the same as forcing participation in a parade. Nor was the Solomon amendment found to violate the law schools right of expressive association. Assisting military recruiters in whatever way the school chooses to assist all employers on campus is not the same as requiring a boy scout troop to allow a retain a vocally gay scoutmaster. (Reference to Boy Scouts of America v. Dale, 530 U.S. 640 (2000) that was relied upon by the 3rd Circuit in finding the Solomon Amendment unconsitutional.) Finally, Chief Justice Roberts noted that since Congress would have acted constitutionally in directly imposing a requirement to admit military recruiters, it could do so indirectly through the spending clause.

History of Solomon Amendment

In 1997 the Solomon amendment provided that any covered entity that prevented access risked not only DOD funding, but funds from Labor, Health and Human Services, Education and other related agencies.

In January of 1998 the Department of Education clarified the effect of the Solomon Amendment on student financial assistance programs, stating that the Solomon Amendment applied only to campus based programs for which the educational institutions (and not the students) were applying. Thus the Federal Perkins Loan, Federal Work Study and Federal Supplemental Education Opportunity Grant Programs were covered by the Solomon restrictions, while direct student aid programs like the Federal Pell Grant, the Federal Family Education Loan and the Federal Direct Loan Program remained outside of the scope of the statute. This was clarified by the Frank-Campbell Amendment in 1999. (Public Law No. 106-79, 113 Stat. 1260.) In addition, in 1998 DOD interpreted the statute to mean that only a school's subelement (e.g. a law school)that violated the Solomon Amendment would risk losing funding, and not the entire university.

2000 Interim Federal Regulations

65 Fed. Reg. 2056 (Jan. 13, 2000)

This interim rule implemented Section 549 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65). Section 549 amended 10 U.S.C. 983 to clarify that non-compliance by a subelement would put DOD funding for the entire university at risk. However, other federal agency funding was not at risk.

2002 Final Regulations

67 Fed. Reg. 49253 (July 30, 2002)

This final regulation adopted the Jan 2002 interim rule with minor changes. Law school non-compliance with the Solomon Amendment thus continued to put an entire university at risk of losing DOD funding.

Conflict with Family Educational Rights and Privacy Act of 1974 (FERPA) "Student recruiting information" is defined under the final rule as name, address, telephone listing, age or year of birth, level of education (e.g., freshman, sophomore, or degree awarded for a recent graduate), and academic major. The Family Compliance Office of the Department of Education has indicated that if there is a conflict with FERPA, these laws would supersede FERPA. However, a student who has required non-disclosure of directory information to any party under FERPA would still be protected under FERPA. The Oct. 23, 1998 final rule preamble states, "Institutions must take care, however, to release only that information specifically required under the Acts and this rule."

See the Family Policy Compliance Office Guidance on Access for and Disclosures to Military Recruiters.



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