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In 1995, Congress passed the first Solomon Amendment, denying schools that barred military recruiters from campus any funds from the Department of Defense. The next year, Congress extended the law’s reach to include funds from the Departments of Education, Labor, and Health & Human Services. In 1999, legislation shepherded by Rep. Barney Frank removed financial aid funds from the federal monies potentially affected by the Solomon Amendment. Defense Department regulations proposed in 2000 and formally adopted in 2002 exponentially toughened the law by interpreting it to require revocation of federal grants to an entire university if only one of the university’s subdivisions (its law school, for example) runs afoul of the law. In 2005, Congress amended the law to explicitly state that military recruiters must be given equal access to that provided other recruiters.
The Solomon Laws
Solomon Amendment I - 1995
Solomon Amendment II - 1996
Legislation Excluding Federal Financial Aid Funds - 1999
The Current Solomon Law - 2005
The Solomon Regulations
1997 Department of Defense Regulations
2000 Department of Defense Interim Regulations
2002 Department of Defense Final Regulations
National Defense Authorization Act for Fiscal Year 1995, Military Recruiting on Campus, 10 U.S.C. § 558.
- DENIAL OF FUNDS –
- No funds available to the Department of Defense may be provided by grant or contract to any institution of higher education that has a policy of denying, or which effectively prevents, the Secretary of Defense from obtaining for military recruiting purposes —
- a. entry to campuses or access to students on campuses; or
- b. access to directory information pertaining to students
- Students referred to in paragraph (1) are individuals who are 17 years of age or older.
- PROCEDURES FOR DETERMINATION - The Secretary of Defense, in consultation with the Secretary of Education, shall prescribe regulations that contain procedures for determining if and when an educational institution has denied or prevented access to students or information describes in subsection (1.a).
- DEFINITION –For the purposes of this section, the term ‘directory information’ means, with respect to a student, the student’s name, address, telephone listing, date and place of birth, level of education, degrees received, and the most recent previous educational institution enrolled in by the student.
Below you will find Solomon Amendment II (passed in 1996), which extended Solomon to include, in addition to Department of Defense funds, monies from the Departments of Labor, Education, and Health and Human Services.
10 U.S.C. § 503 note.
"SEC. 514.
(a) DENIAL OF FUNDS FOR PREVENTING ROTC ACCESS TO CAMPUS– None of the funds made available in this or any other Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act for any fiscal year may be provided by contract or by grant (including a grant of funds to be available for student aid) to a covered educational entity if the Secretary of Defense determines that the covered educational entity has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents–
(1) the maintaining, establishing, or operation of a unit of the Senior Reserve Officer Training Corps (in accordance with section 654 of title 10, United States Code, and other applicable Federal laws) at the covered educational entity; or
(2) a student at the covered educational entity from enrolling in a unit of the Senior Reserve Officer Training Corps at another institution of higher education.
(b) DENIAL OF FUNDS FOR PREVENTING FEDERAL MILITARY RECRUITING ON CAMPUS– None of the funds made available in this or any other Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act for any fiscal year may be provided by contract or by grant (including a grant of funds to be available for student aid) to a covered educational entity if the Secretary of Defense determines that the covered educational entity has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents–
(1) entry to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of Federal military recruiting; or
(2) access by military recruiters for purposes of Federal military recruiting to the following information pertaining to students (who are 17 years of age or older) enrolled at the covered educational entity:
(A) student names, addresses, and telephone listings; and
(B) if known, student ages, levels of education, and majors.
(c) EXCEPTIONS– The limitation established in subsection (a) or (b) shall not apply to a covered educational entity if the Secretary of Defense determines that–
(1) the covered educational entity has ceased the policy or practice described in such subsection;
(2) the institution of higher education involved has a longstanding policy of pacifism based on historical religious affiliation; or
(3) the institution of higher education involved is prohibited by the law of any State, or by the order of any State court, from allowing Senior Reserve Officer Training Corps activities or Federal military recruiting on campus, except that this paragraph shall apply only during the one-year period beginning on the effective date of this section.
(d) 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 and to the 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 covered educational entity for contracts and grants.
(e) SEMIANNUAL NOTICE IN FEDERAL REGISTER– The Secretary of Defense shall publish in the Federal Register once every 6 months a list of each covered educational entity that is currently ineligible for contracts and grants by reason of a determination of the Secretary under subsection (a) or (b).
(f) COVERED EDUCATIONAL ENTITY– For purposes of this section, the term 'covered educational means an institution of higher education, or a subelement of an institution of higher education.
(g) EFFECTIVE DATE– This section shall take effect upon the expiration of the 180-day period beginning on the date of the enactment of this Act, by which date the Secretary of Defense shall have published final regulations in consultation with the Secretary of Education to carry out this section.
Pub. L. 106-79, title VIII, Sec. 8120, Oct. 25, 1999, 113 Stat. 1260
"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 ([former] 10 U.S.C. 503 note), or section 983 of title 10, United States Code."
§ 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– No funds described in subsection (d)(1) may be provided by contract or by grant 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 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 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.
(b) Denial of Funds for Preventing Military Recruiting on Campus– No funds described in subsection (d)(1) may be provided by contract or by grant 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 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 access to campuses and to students that is provided to any other employer; or
(2) access by military recruiters for purposes of military recruiting to the following information pertaining to students (who are 17 years of age or older) enrolled at that institution (or any subelement of that institution):
(A) Names, addresses, and telephone listings.
(B) Date and place of birth, levels of education, academic majors, degrees received, and the most recent educational institution enrolled in by the student.
(c) Exceptions– The limitation established in subsection (a) or (b) shall not apply to an institution of higher education (or any subelement of that institution) if the Secretary of Defense determines that–
(1) the institution (and each subelement of that institution) has ceased the policy or practice described in that subsection; or
(2) the institution of higher education involved has a longstanding policy of pacifism based on historical religious affiliation.
(d) Covered Funds–
(1) Except as provided in paragraph (2), the limitations established in subsections (a) and (b) apply to the following:
(A) Any funds made available for the Department of Defense.
(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) 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.
(f) Semiannual Notice in Federal Register– The Secretary of Defense shall publish in the Federal Register once every six months a list of each institution of higher education that is currently ineligible for contracts and grants by reason of a determination of the Secretary under subsection (a) or (b).
PART 216 - MILITARY RECRUITING AND RESERVE OFFICER TRAINING CORPS PROGRAM ACCESS TO INSTITUTIONS OF HIGHER EDUCATION
§ 216.1 Purpose.
Although this resolution has been placed in the Statutes at Large as Pub. L. 90-331, 82 Stat. 170, it has not been codified; it is set out in the notes to 18 U.S.C. 3056. The term "Military Services," as used herein, refers to the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard. The term "Related Agencies," as used herein, refers to the Armed Forces Retirement Home, the Corporation for National and Community Service, the Corporation for Public Broadcasting, the Federal Mediation and Conciliation Service, the Federal Mine Safety and Health Review Commission, the National Commission on Libraries and Information Science, the National Council on Disability, the National Education Goals Panel, the National Labor Relations Board, the National Mediation Board, the Occupational Safety and Health Review Commission, the Physician Payment Review Commission, the Prospective Payment Assessment Commission, the Social Security Administration, the Railroad Retirement Board and the United States Institute of Peace.
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§ 216.3 Definitions.
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.
Covered school. An institution of higher education, or a subelement of an institution of higher education, subjectto the following clarifications: (1) In the event of a determination (§216.5) affecting only a subelement of a parent institution (see §216.3(d)), the limitations on the use of funds (§ 216.4 (a) and (b)) shall apply only to the subelement and not to the parent institution as a whole. (2) The limitations on the use of funds (§216.4 (a) and (b)) shall not apply to any individual institution of higher education that is part of a single university system that does not prevent entry to campus, access to students, or access to student information by military recruiters, or have an anti-ROTC policy, even though another campus of the same system is affected by a determination under §216.5(a).
Directory information on students. The student’s name, address, telephone listing, date and place of birth, level of education, academic major, degrees received, and the educational institution in which the student most recently was enrolled.
Institution of higher education. A domestic college, university, 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, or other graduate schools). For example, the School of Law of XYZ University is a subelement of its parent institution (XYZ University).
Student. An individual who is 17 years of age or older and is enrolled at a covered school.
§ 216.4 Policy. It is policy that:
(a) Under 108 Stat. 2663 and 110 Stat. 3009, no funds available under appropriations acts for any fiscal year for the Departments of Defense, Transportation, Labor, Health and Human Services, Education, and Related Agencies may be provided by contract or by grant (including a grant of funds to be available for student aid) to a covered school if the Secretary of Defense determines that the covered school 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, or access to directory information on students.
(b) Under 110 Stat. 3009, no funds available under appropriations acts for any fiscal year for the Departments of 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 an anti-ROTC policy or practice (regardless of when implemented). Additionally, under 10 U.S.C. 983, no funds appropriated or otherwise available to the Department of Defense may be made obligated by contract or by grant to a covered school that has such a policy or practice.
DEPARTMENT OF DEFENSE
48 CFR Parts 209, 243, and 252
[DFARS Case 99-D303]
Defense Federal Acquisition Regulation Supplement; Institutions of Higher Education
ACTION: Interim rule with request for comments.
SUMMARY: The Acting Director of Defense Procurement has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 549 of the National Defense Authorization Act for Fiscal Year 2000. Section 549 amends statutory provisions pertaining to the denial of Federal contracts and grants to institutions of higher education that prohibit Senior Reserve Officer Training Corps units or military recruiting on campus.
DATES: Effective date: January 13, 2000.
Comment date: Comments on the interim rule should be submitted in writing to the address shown below on or before March 13, 2000, to be considered in the formation of the final rule.
ADDRESSES: Interested parties should submit written comments to: Defense Acquisition Regulations Council, Attn: Ms. Amy Williams, PDUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Telefax (703) 602-0350. E-mail comments submitted via the Internet should be addressed to: dfars@acq.osd.mil. Please cite DFARS Case 99-D303 in all correspondence related to this rule. E-mail comments should cite DFARS Case 99-D303 in the subject line.
FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams, (703) 602-0288.
SUPPLEMENTARY INFORMATION:
A. Background
his interim rule revises DFARS 209.470, 243.105, and 252.209-7005 to implement Section 549 of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106-65). Section 549 amends 10 U.S.C. 983 to prohibit DoD from providing funds by contract or grant to an institution of higher education (including any subelement of that institution) if the Secretary of Defense determines that the institution (or any subelement of the institution) has a policy or practice that prohibits, or in effect prevents, Senior Reserve Officer Training Corps (ROTC) units or military recruiting on campus.This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule applies only to institutions of higher education that prohibit Senior ROTC units or military recruiting on campus. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 99-D303.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish this interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 549 of the National Defense Authorization Act for Fiscal Year 2000. Section 549 amends statutory provisions pertaining to the denial of Federal contracts and grants to institutions of higher education that prohibit Senior ROTC units or military recruiting on campus. Section 549 became effective on October 5, 1999. DoD will consider comments received in response to this interim rule in the formation of the final rule.
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PART 209--CONTRACTOR QUALIFICATIONS
2. Sections 209.470 through 209.470-3 are revised and section 209.470-4 is added to read as follows:
209.470 Reserve Officer Training Corps and military recruiting on campus.
209.470-1 Definition.
Institution of higher education, as used in this section, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.
209.470-2 Policy.
(a) Except as provided in paragraph (b) of this subsection, 10 U.S.C. 983 prohibits DoD from providing funds by contract or grant to an institution of higher education if the Secretary of Defense determines that the institution has a policy or practice that prohibits or in effect prevents–
(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) at that institution;
(2) A student at that institution from enrolling in a unit of the senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of Transportation from gaining entry to campuses, or access to students on campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing certain information pertaining to students enrolled at that institution.
(b) The prohibition in paragraph (a) of this subsection does not apply to an institution of higher education if the Secretary of Defense determines that–
(1) The institution has ceased the policy or practice described in paragraph (a) of this subsection; or
(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.
209.470-3 Procedures.
If the Secretary of Defense determines that an institution of higher education is ineligible to receive DoD funds because of a policy or practice described in 209.470-2(a)–
(a) The Secretary of Defense will list the institution on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by General Services Administration (also see FAR 9.404 and 32 CFR part 216); and
(b) DoD components–
(1) Must not solicit offers from, award contracts to, or consent to subcontracts with the institution;
(2) Must make no further payments under existing contracts with the institution; and
(3) Must terminate existing contracts with the institution.
209.470-4 Contract clause.
Use the clause at 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus, in all solicitations and contracts with institutions of higher education.
PART 243--CONTRACT MODIFICATIONS
3. Section 243.105 is amended by revising paragraph (a)(ii) and removing paragraph (a)(iii). The revised text reads as follows;
243.105 Availability of funds.
a) * * *
(ii) In accordance with 10 U.S.C. 983, do not provide funds by contract or contract modification, or make contract payments, to an institution of higher education that has a policy or practice of hindering Senior Reserve Officer Training Corps units or military recruiting on campus as described at 209.470.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 252.209-7005 is revised to read as follows:
252.209-7005 Reserve Officer Training Corps and Military Recruiting on Campus.
As prescribed in 209.470-4, use the following clause:
Reserve Officer Training Corps and Military Recruiting on Campus (Jan 2000)
(a) Definition. "Institution of higher education," as used in this clause, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.
(b) Limitation on contract award. Except as provided in paragraph (c) of this clause, an institution of higher education is ineligible for contract award if the Secretary of Defense determines that the institution has a policy or practice (regardless of when implemented) that prohibits or in effect prevents&ndash
(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) (in accordance with 10 U.S.C. 654 and other applicable Federal laws) at that institution;
(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;
(3) The Secretary of a military department or the Secretary of Transportation from gaining entry to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting; or
(4) Military recruiters from accessing, for purposes of military recruiting, the following information pertaining to students (who are 17 years of age or older) enrolled at that institution:
(i) Name.
(ii) Address.
(iii) Telephone number.
(iv) Date and place of birth.
(v) Educational level.
(vi) Academic major.
(vii) Degrees received.
(viii) Most recent educational institution enrollment.
(c) Exception. The limitation in paragraph (b) of this clause does not apply to an institution of higher education if the Secretary of Defense determines that–
(1) The institution has ceased the policy or practice described in paragraph (b) of this clause; or
(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.
(d) Agreement. The Contractor represents that it does not now have, and agrees that during performance of this contract it will not adopt, any policy or practice described in paragraph (b) of this clause, unless the Secretary of Defense has granted an exception in accordance with paragraph (c)(2) of this clause.
(e) Notwithstanding any other clause of this contract, if the Secretary of Defense determines that the Contractor misrepresented its policies and practices at the time of contract award or has violated the agreement in paragraph (d) of this clause–
(1) The Contractor will be ineligible for further payments under this and other contracts with the Department of Defense; and
(2) The Government will terminate this contract for default for the Contractor's material failure to comply with the terms and conditions of award.
DEPARTMENT OF DEFENSE
48 CFR Parts 209, 243, and 252
[DFARS Case 99-D303]
Defense Federal Acquisition Regulation Supplement; Institutions of Higher Education
ACTION: Final rule.
SUMMARY: DoD has adopted as final, with minor changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 549 of the National Defense Authorization Act for Fiscal Year 2000. Section 549 amends statutory provisions pertaining to the denial of Federal contracts and grants to institutions of higher education that prevent Senior Reserve Officer Training Corps (ROTC) access or military recruiting on campus.
EFFECTIVE DATE: July 30, 2002.
FOR FURTHER INFORMATION CONTACT: Ms. Susan Schneider, Defense Acquisition Regulations Council, OUSD (AT&L) DP (DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone (703) 602-0326; facsimile (703) 602-0350. Please cite DFARS Case 99--D303.
SUPPLEMENTARY INFORMATION:
1. Background
This rule implements Section 549 of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106-65). Section 549 amends 10 U.S.C. 983 to prohibit DoD from providing funds by contract or grant to an institution of higher education (including any subelement of that institution) if the Secretary of Defense determines that the institution (or any subelement of the institution) has a policy or practice that prohibits, or in effect prevents, Senior ROTC units or military recruiting on campus.
DoD published an interim rule at 65 FR 2056 on January 13, 2000. Sixty-one sources submitted comments on the interim rule. After evaluating all comments, DoD converted the interim rule to a final rule with minor editorial changes. A summary of the comments and the DoD response is provided below:
Comment: The greatest concern expressed by respondents pertained to the extension of the prohibition to subelements of educational institutions. The respondents stated that Section 549 of Public Law 106-65 was intended to recodify prior legislation, which did not require extension of the prohibition to subelements; prior legislative history did not support extension to subelements; and the fact that the subelement language was contained in the Senate report but not in the House report, and that the Senate had receded to the House version of the bill, meant that DoD could not rely upon the Senate report as a basis for extending the rule to subelements of an institution.
DoD Response: Senate and House Committee reports generally are taken into consideration to determine legislative intent only when the statutory language is unclear. The final language of Section 549 of Public Law 106-65 clearly states that the policy applies to any subelement of an institution. A comparison of the previous and current legislation shows that the subelement language was a new addition to the statute resulting from the enactment of Section 549.
Comment: Several respondents believed that DoD did not have sufficient cause to issue an interim rule without prior opportunity for public comment.
DoD Response: Section 549 of Public Law 106-65 became effective upon enactment, on October 5, 1999. DoD issued a rule before receipt of public comments to promptly comply with the new statutory requirement.
Comment: One respondent stated that the rule calls for suspension and debarment without due process and asked what procedure exists for an educational institution to challenge a determination.
DoD Response: This DFARS rule merely prescribes the action to be taken after an institution is determined to be ineligible for DoD contract awards. The procedures used to make that determination are addressed separately in the regulations at 32 CFR part 216.
Comment: One respondent stated that the requirements for stopping payments and terminating existing contracts go far beyond traditional suspension and debarment.
DoD Response: These requirements are not new. They were added to the DFARS in 1995 to comply with Section 558 of Public Law 103-337, which prohibited DoD from providing funds to educational institutions that prevented military recruiting on campus. The current legislation contains a similar prohibition.
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