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F I S C A L I M P A C T R E P O R T

SPONSOR Foley

DATE TYPED 03-01-05 HB 1089

SHORT TITLE Military Recruiter Access to College Campuses

SB

ANALYST Woods

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Response Received From

New Mexico Department of Military Affairs (DMA)

No Response Received From

New Mexico Commission on Higher Education (CHE)

SUMMARY

Synopsis of Bill

House Bill 1089 – An Act Relating to Higher Education; Ensuring that Military recruiters have

Access to New Mexico University and College Campuses – proposes the following:

Section 1. Military Recruiters and Organizers Permitted on Public Campuses – Equal

Access – In order to avoid loss of federal funds for higher education:

A. a public institution of higher education shall not institute a policy or prac-

tice that prohibits entry to campus or access to enrolled students aged seven-

teen and older or their directory information by United States armed services

House Bill 1089 -- Page 2

representatives for purposes of employment recruitment, placement assistance

or organizing a senior reserve officer training corps organization; and

B. a campus non-discrimination policy shall not be interpreted to authorize ex-

clusion of a legally operating representative of a United States armed services

organization from employment recruitment, placement assistance efforts or or-

ganization of a senior reserve officer training corps.

There is no appropriation attached to this legislation.

Significant Issues

The New Mexico Department of Military Affairs notes that his legislation may be subject to the

Doctrine of Federal Preemption, due to existing federal law, 10 U.S.C. Section 503 and 10

U.S.C. Section 2358. Further, that while it is unclear if an institution of higher education did not

provide student access to military recruiters what the consequences might be, potentially New

Mexico institutes of higher education might seek to prevent military recruiters to having access

to students for possible enlistment in the military services.

OTHER SUBSTANTIVE ISSUES

This matter finds its genesis in the federal Solomon Amendment, specifically Title 10, U.S.

Code: Section 983 as follows:

1

§983. Institutions of higher education that prevent ROTC access or military recruiting on cam-

pus: 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 (including a grant of funds to

be available for student aid) to an institution of higher education (including any subele-

ment 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 imple-

mented) that either prohibits, or in effect prevents--

(1) the Secretary of a military department from maintaining, establishing, or operat-

ing 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)(2) may be provided by contract or by grant (including a grant of funds

1

Georgetown University School of Law. http://www.law.georgetown.edu/solomon/Rules.html

House Bill 1089 -- Page 3

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 im-

plemented) that either prohibits, or in effect prevents—

(1) the Secretary of a military department or Secretary of Transportation from gain-

ing entry to campuses, or access to students (who are 17 years of age or older) on

campuses, for purposes of military recruiting; 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 re-

ceived, 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 paci-

fism based on historical religious affiliation.

(d) Covered Funds. –

(1) The limitation established in subsection (a) applies to the following:

(A) Any funds made available for the Department of Defense.

(B) Any funds made available in a Departments of Labor, Health and Human

Services, and Education, and Related Agencies Appropriations Act.

(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 Transportation.

(e) Notice of Determinations.-- Whenever the Secretary of Defense makes a determina-

tion under subsection (a), (b), or (c), the Secretary--

(1) shall transmit a notice of the determination to the Secretary of Education and to

Congress; and

House Bill 1089 -- Page 4

(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 Secre-

tary under subsection (a) or (b).

Against this backdrop, in September 2003 a lawsuit was filed against the Department of Defense,

alleging First Amendment violations by the Forum for Academic and Institutional Rights

[FAIR].

2

Excerpts from a Saturday, September 20, 2003 Associated Press article provide addi-

tional detail:

3

A group of law schools, professors and students is suing the Department of Defense,

alleging its requirement that law schools allow military recruiters on campus violates

the First Amendment….But last year, after the Defense Department threatened to pull

federal funding from law schools that deny military recruiters access to students,

schools including Harvard and Boston universities and Boston College backed off

their bans.

Kent Greenfield, a Boston College law professor leading the lawsuit, said the govern-

ment is forcing agreement on its policies from schools that fear the loss of bene-

fits….The lawsuit also argues there are flaws in the 1996 law, which permits the De-

fense Department to deny federal money to institutions of higher learning that restrict

military recruiting or ROTC on campus. The lawsuit was filed Friday in federal court

in Newark, N.J.

The Forum for Academic and Institutional Rights, which Greenfield formed to file the

lawsuit, declined to release the names of members….The group’s board includes pro-

fessors from Yale, Stanford, Georgetown and New York universities, and the Univer-

sity of Southern California. The group filed the suit along with the Society of Ameri-

can Law Teachers, student groups at Boston College Law School and Rutgers Univer-

sity School of Law and three Rutgers law students.

Eventually, two federal courts found the Solomon Amendment unconstitutional:

4

•

In FAIR et al. v. Rumsfeld

On November 29, 2004, the U.S. Court of Appeals for the Third Circuit over-

turned the New Jersey District Court’s denial of plaintiffs’ motion for an injunc-

tion against the Solomon Amendment, holding that “FAIR has demonstrated a

likelihood of success on the merits of its First Amendment claims.” The Court

of Appeals remanded the case to the District Court with instructions to issue an

injunction.

2

FAIR is an association of twenty-eight law schools and law faculties whose stated mission is “to promote academic

freedom and to support educational institutions is opposing discrimination.”

3

http://www.law.georgetown.edu/solomon/Documents/News%20Observer%20Article.doc

4

http://www.law.georgetown.edu/solomon/amendment_enjoined.htm

House Bill 1089 -- Page 5

•

Burt et al. v. Rumsfeld

On January 31, 2005, in a suit brought by members of the Yale Law School fac-

ulty, a federal district court in Connecticut declared the Solomon Amendment

unconstitutional under the First Amendment and enjoined the law’s enforcement

against Yale.

However, the American Association of University Professors observes that the government has

“indicated its intention” to appeal the matter to the Supreme Court, thus leaving the matter unre-

solved at present.

5

BFW/lg

5

http://www.aaup.org/newsroom/Newsitems/Burtetal.htm