[Code of Federal Regulations]
[Title 32, Volume 2]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR216.3]

[Page 406-407]
 
                       TITLE 32--NATIONAL DEFENSE
 
        CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE (CONTINUED)
 
PART 216_MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS PROGRAM ACCESS 
 
Sec. 216.3  Definitions.

    (a) Anti-ROTC policy. A policy or practice whereby a covered school 
prohibits or in effect prevents the Secretary of Defense from 
maintaining, establishing, or efficiently operating a unit of the Senior 
ROTC at the covered school, or prohibits or in effect prevents a student 
at the covered school from enrolling in a Senior ROTC unit at another 
institution of higher education.
    (b) Covered funds. ``Covered funds'' is defined in 10 U.S.C. 983 as 
any funds made available for the Departments of Defense, Transportation, 
Homeland Security, or National Nuclear Security Administration of the 
Department of Energy, the Central Intelligence Agency, or any department 
or agency in which regular appropriations are made in the Departments of 
Labor, Health and Human Services, and Education, as well as in Related 
Agencies Appropriations Act (excluding any Federal funds 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).
    (c) Covered school. An institution of higher education, or a 
subelement of an institution of higher education, subject to the 
following clarifications:
    (1) A determination (Sec. 216.5(a)) affecting only a subelement of 
a parent institution (see Sec. 216.3(f)) effects a limitation on the 
use of funds (see Sec. 216.4 (a)) applicable to the parent institution 
as a whole, including the institution's offending subelement and all of 
its subelements, if any.
    (2) When an individual institution of higher education that is part 
of a single university system (e.g., University of (State) at (City)--a 
part of that state's university system) has a policy or practice that 
prohibits, or in effect prevents, access to campuses or access to 
students on campuses in a manner that is at least equal in quality and 
scope to the access to its campus and students as it provides to any 
other employer, or access to student-recruiting information by military 
recruiters, or has an anti-ROTC policy, as defined in this rule, it is 
only that individual institution within that university system that is 
affected by the loss of Federal funds. This limited effect applies even 
though another campus of the same university system may or may not be 
affected by a separate determination under Sec. 216.5 (a). The funding 
of a subelement of the offending individual institution of a single 
university system, if any, will also be withheld as a result of the 
policies or practices of that offending individual institution.
    (d) Enrolled. Students are ``enrolled'' when registered for at least 
one credit hour of academic credit at the covered school during the most 
recent, current, or next term. Students who are enrolled during the most 
recent term, but who are no longer attending the institution, are 
included.
    (e) Equal in quality and scope. The term 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. The focus 
is not on the content of a school's recruiting policy, but instead on 
the result achieved by the policy and compares the access provided 
military recruiters to that provided other recruiters. Therefore, it is 
insufficient to comply with the statute if the policy results in a 
greater level of access for other recruiters than for the military. The 
U.S. Supreme Court further explained that ``the statute does

[[Page 407]]

not call for an inquiry into why or how the `other employer' secured its 
access * * * We do not think that the military recruiter has received 
equal 'access' [when a law firm is permitted on campus to recruit 
students and the military is not]--regardless of whether the disparate 
treatment is attributable to the military's failure to comply with the 
school's nondiscrimination policy.''
    (f) Institution of higher education. A domestic college, university, 
or other institution (or subelement thereof) providing postsecondary 
school courses of study, including foreign campuses of such domestic 
institutions. The term includes junior colleges, community colleges, and 
institutions providing courses leading to undergraduate and post-
graduate degrees. The term does not include entities that operate 
exclusively outside the United States, its territories, and possessions. 
A subelement of an institution of higher education is a discrete 
(although not necessarily autonomous) organizational entity that may 
establish policies or practices affecting military recruiting and 
related actions (e.g., an undergraduate school, a law school, a medical 
school, other graduate schools, or a national laboratory connected or 
affiliated with that parent institution). For example, the School of Law 
of XYZ University is a subelement of its parent institution (XYZ 
University).
    (g) Military recruiters. Personnel of DoD whose current assignment 
or detail is to a recruiting activity of the DoD.
    (h) Pacifism. Opposition to war or violence, demonstrated by refusal 
to participate in military service.
    (i) Student. An individual who is 17 years of age or older and is 
enrolled at a covered school.
    (j) Student-recruiting information. For those students currently 
enrolled, the student's name, address, telephone listing, age (or year 
of birth), place of birth, level of education (e.g., freshman, 
sophomore, or degree awarded for a recent graduate), most recent 
educational institution attended, and current major(s).