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[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

                              ----------                              
                                                                   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.

                                
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