
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC2164]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                    PART III--TRAINING AND EDUCATION
 
               CHAPTER 108--DEPARTMENT OF DEFENSE SCHOOLS
 
Sec. 2164. Department of Defense domestic dependent elementary 
        and secondary schools
        
    (a) Authority of Secretary.--(1) If the Secretary of Defense makes a 
determination that appropriate educational programs are not available 
through a local educational agency for dependents of members of the 
armed forces and dependents of civilian employees of the Federal 
Government residing on a military installation in the United States 
(including territories, commonwealths, and possessions of the United 
States), the Secretary may enter into arrangements to provide for the 
elementary or secondary education of the dependents of such members of 
the armed forces and, to the extent authorized in subsection (c), the 
dependents of such civilian employees.
    (2) The Secretary may, at the discretion of the Secretary, permit 
dependents of members of the armed forces and, to the extent provided in 
subsection (c), dependents of civilian employees of the Federal 
Government residing in a territory, commonwealth, or possession of the 
United States but not on a military installation, to enroll in an 
educational program provided by the Secretary pursuant to this 
subsection. If a member of the armed forces is assigned to a remote 
location or is assigned to an unaccompanied tour of duty, a dependent of 
the member who resides, on or off a military installation, in a 
territory, commonwealth, or possession of the United States, as 
authorized by the member's orders, may be enrolled in an educational 
program provided by the Secretary under this subsection.
    (b) Factors for Secretary To Consider.--(1) Factors to be considered 
by the Secretary of Defense in making a determination under subsection 
(a) shall include the following:
        (A) The extent to which such dependents are eligible for free 
    public education in the local area adjacent to the military 
    installation.
        (B) The extent to which the local educational agency is able to 
    provide an appropriate educational program for such dependents.

    (2) For purposes of paragraph (1)(B), an appropriate educational 
program is a program that, as determined by the Secretary, is comparable 
to a program of free public education provided for children by the 
following local educational agencies:
        (A) In the case of a military installation located in a State 
    (other than an installation referred to in subparagraph (B)), local 
    educational agencies in the State that are similar to the local 
    educational agency referred to in paragraph (1)(B).
        (B) In the case of a military installation with boundaries 
    contiguous to two or more States, local educational agencies in the 
    contiguous States that are similar to the local educational agency 
    referred to in paragraph (1)(B).
        (C) In the case of a military installation located in a 
    territory, commonwealth, or possession, the District of Columbia 
    public schools, except that an educational program determined 
    comparable under this subparagraph may be considered appropriate for 
    the purposes of paragraph (1)(B) only if the program is conducted in 
    the English language.

    (c) Eligibility of Dependents of Federal Employees.--(1)(A) A 
dependent of a Federal employee residing in permanent living quarters on 
a military installation at any time during the school year may enroll in 
an educational program provided by the Secretary of Defense pursuant to 
subsection (a) for dependents residing on such installation.
    (B) A dependent of a United States Customs Service employee who 
resides in Puerto Rico, but not on a military installation, may enroll 
in an educational program provided by the Secretary pursuant to 
subsection (a) in Puerto Rico in accordance with the same rules as apply 
to a dependent of a Federal employee residing in permanent living 
quarters on a military installation.
    (2)(A) Except as provided in subparagraphs (B) and (C), a dependent 
of a Federal employee who is enrolled in an educational program provided 
by the Secretary pursuant to subsection (a) and who is not residing on a 
military installation may be enrolled in the program for not more than 
five consecutive school years.
    (B) At the discretion of the Secretary, a dependent referred to in 
subparagraph (A) may be enrolled in the program for more than five 
consecutive school years if the dependent is otherwise qualified for 
enrollment, space is available in the program, and the Secretary will be 
reimbursed for the educational services provided. Any such extension 
shall cover only one school year at a time.
    (C) Subparagraph (A) shall not apply to an individual who is a 
dependent of a Federal employee in the excepted service (as defined in 
section 2103 of title 5) and who is enrolled in an educational program 
provided by the Secretary pursuant to subsection (a) in Puerto Rico, 
Wake Island, Guam, American Samoa, the Northern Mariana Islands, or the 
Virgin Islands.
    (D) Subparagraph (A) shall not apply to a dependent covered by 
paragraph (1)(B). No requirement under this paragraph for reimbursement 
for educational services provided for the dependent shall apply with 
respect to the dependent, except that the Secretary may require the 
United States Customs Service to reimburse the Secretary for the cost of 
the educational services provided for the dependent.
    (d) School Boards.--(1) The Secretary of Defense shall provide for 
the establishment of a school board for Department of Defense elementary 
and secondary schools established at each military installation under 
this section. The Secretary may provide for the establishment of one 
school board for all such schools in the Commonwealth of Puerto Rico and 
one school board for all such schools in Guam instead of one school 
board for each military installation in those locations.
    (2) The school board shall be composed of the number of members, not 
fewer than three, prescribed by the Secretary.
    (3) The parents of the students attending the school shall elect the 
school board in accordance with procedures which the Secretary shall 
prescribe.
    (4)(A) A school board elected for a school under this subsection may 
participate in the development and oversight of fiscal, personnel, and 
educational policies, procedures, and programs for the school, except 
that the Secretary may issue any directive that the Secretary considers 
necessary for the effective operation of the school or the entire school 
system.
    (B) A directive referred to in subparagraph (A) shall, to the 
maximum extent practicable, be issued only after the Secretary consults 
with the appropriate school boards elected under this subsection. The 
Secretary shall establish a process by which a school board or school 
administrative officials may formally appeal the directive to the 
Secretary of Defense.
    (5) Meetings conducted by the school board shall be open to the 
public, except as provided in paragraph (6).
    (6) A school board need not comply with the provisions of the 
Federal Advisory Committee Act (5 U.S.C. App.), but may close meetings 
in accordance with such Act.
    (7) The Secretary may provide for reimbursement of a school board 
member for expenses incurred by the member for travel, transportation, 
lodging, meals, program fees, activity fees, and other appropriate 
expenses that the Secretary determines are reasonable and necessary for 
the performance of school board duties by the member.
    (e) Administration and Staff.--(1) The Secretary of Defense may 
enter into such arrangements as may be necessary to provide educational 
programs at the school.
    (2) The Secretary may, without regard to the provisions of any other 
law relating to the number, classification, or compensation of 
employees--
        (A) establish positions for civilian employees in schools 
    established under this section;
        (B) appoint individuals to such positions; and
        (C) fix the compensation of such individuals for service in such 
    positions.

    (3)(A) Except as provided in subparagraph (B), in fixing the 
compensation of employees appointed for a school pursuant to paragraph 
(2), the Secretary shall consider--
        (i) the compensation of comparable employees of the local 
    educational agency in the capital of the State where the military 
    installation is located;
        (ii) the compensation of comparable employees in the local 
    educational agency that provides public education to students who 
    reside adjacent to the military installation; and
        (iii) the average compensation for similar positions in not more 
    than three other local educational agencies in the State in which 
    the military installation is located.

    (B) In fixing the compensation of employees in schools established 
in the territories, commonwealths, and possessions pursuant to the 
authority of this section, the Secretary shall determine the level of 
compensation required to attract qualified employees. For employees in 
such schools, the Secretary, without regard to the provisions of title 
5, may provide for the tenure, leave, hours of work, and other incidents 
of employment to be similar to that provided for comparable positions in 
the public schools of the District of Columbia. For purposes of the 
first sentence, a school established before the effective date of this 
section pursuant to authority similar to the authority in this section 
shall be considered to have been established pursuant to the authority 
of this section.
    (4)(A) The Secretary may, without regard to the provisions of any 
law relating to the number, classification, or compensation of 
employees--
        (i) transfer employees from schools established under this 
    section to schools in the defense dependents' education system in 
    order to provide the services referred to in subparagraph (B) to 
    such system; and
        (ii) transfer employees from such system to schools established 
    under this section in order to provide such services to those 
    schools.

    (B) The services referred to in subparagraph (A) are the following:
        (i) Administrative services.
        (ii) Logistical services.
        (iii) Personnel services.
        (iv) Such other services as the Secretary considers appropriate.

    (C) Transfers under this paragraph shall extend for such periods as 
the Secretary considers appropriate. The Secretary shall provide 
appropriate compensation for employees so transferred.
    (D) The Secretary may provide that the transfer of an employee under 
this paragraph occur without reimbursement of the school or system 
concerned.
    (E) In this paragraph, the term ``defense dependents' education 
system'' means the program established and operated under section 
1402(a) of the Defense Dependents' Education Act of 1978 (20 U.S.C. 
921(a)).
    (f) Substantive and Procedural Rights and Protections for 
Children.--(1) The Secretary shall provide the following substantive 
rights, protections, and procedural safeguards (including due process 
procedures) in the educational programs provided for under this section:
        (A) In the case of children with disabilities aged 3 to 5, 
    inclusive, all substantive rights, protections, and procedural 
    safeguards (including due process procedures) available to children 
    with disabilities aged 3 to 5, inclusive, under part B of the 
    Individuals with Disabilities Education Act (20 U.S.C. 1411 et 
    seq.).
        (B) In the case of infants and toddlers with disabilities, all 
    substantive rights, protections, and procedural safeguards 
    (including due process procedures) available to infants and toddlers 
    with disabilities under part H \1\ of such Act (20 U.S.C. 1471 et 
    seq.).
---------------------------------------------------------------------------
    \1\ See References in Text note below.
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        (C) In the case of all other children with disabilities, all 
    substantive rights, protections, and procedural safeguards 
    (including due process procedures) available to children with 
    disabilities who are 3 to 5 years old under part B of such Act.

    (2) Paragraph (1) may not be construed as diminishing for children 
with disabilities enrolled in day educational programs provided for 
under this section the extent of substantive rights, protections, and 
procedural safeguards that were available under section 6(a) of Public 
Law 81-874 (20 U.S.C. 241(a)) to children with disabilities as of 
October 7, 1991.
    (3) In this subsection:
        (A) The term ``children with disabilities'' has the meaning 
    given the term in section 602(a)(1) \1\ of the Individuals with 
    Disabilities Education Act (20 U.S.C. 1401(a)(1)).
        (B) The term ``children with disabilities aged 3 to 5, 
    inclusive'' means such term as used in such Act (20 U.S.C. 1400 et 
    seq.).
        (C) The term ``infants and toddlers with disabilities'' has the 
    meaning given the term in section 672(1) \1\ of such Act (20 U.S.C. 
    1472(1)).

    (g) Reimbursement.--When the Secretary of Defense provides 
educational services under this section to an individual who is a 
dependent of an employee of a Federal agency outside the Department of 
Defense, the head of the other Federal agency shall, upon request of the 
Secretary of Defense, reimburse the Secretary for those services at 
rates routinely prescribed by the Secretary for those services. Any 
payments received by the Secretary under this subsection shall be 
credited to the account designated by the Secretary for the operation of 
educational programs under this section.
    (h) Continuation of Enrollment Despite Change in Status.--(1) The 
Secretary of Defense shall permit a dependent of a member of the armed 
forces or a dependent of a Federal employee to continue enrollment in an 
educational program provided by the Secretary pursuant to subsection (a) 
for the remainder of a school year notwithstanding a change during such 
school year in the status of the member or Federal employee that, except 
for this paragraph, would otherwise terminate the eligibility of the 
dependent to be enrolled in the program.
    (2) The Secretary may, for good cause, authorize a dependent of a 
member of the armed forces or a dependent of a Federal employee to 
continue enrollment in an educational program provided by the Secretary 
pursuant to subsection (a) notwithstanding a change in the status of the 
member or employee that, except for this paragraph, would otherwise 
terminate the eligibility of the dependent to be enrolled in the 
program. The enrollment may continue for as long as the Secretary 
considers appropriate.
    (3) Paragraphs (1) and (2) do not limit the authority of the 
Secretary to remove a dependent from enrollment in an educational 
program provided by the Secretary pursuant to subsection (a) at any time 
for good cause determined by the Secretary.
    (i) American Red Cross Employee Dependents in Puerto Rico.--(1) The 
Secretary may authorize the dependent of an American Red Cross employee 
described in paragraph (2) to enroll in an education program provided by 
the Secretary pursuant to subsection (a) in Puerto Rico if the American 
Red Cross agrees to reimburse the Secretary for the educational services 
so provided.
    (2) An employee referred to in paragraph (1) is an American Red 
Cross employee who--
        (A) resides in Puerto Rico; and
        (B) performs, on a full-time basis, emergency services on behalf 
    of members of the armed forces.

    (3) In determining the dependency status of any person for the 
purposes of paragraph (1), the Secretary shall apply the same 
definitions as apply to the determination of such status with respect to 
Federal employees in the administration of this section.
    (4) Subsection (g) shall apply with respect to determining the 
reimbursement rates for educational services provided pursuant to this 
subsection. Amounts received as reimbursement for such educational 
services shall be treated in the same manner as amounts received under 
subsection (g).

(Added Pub. L. 103-337, div. A, title III, Sec. 351(a), Oct. 5, 1994, 
108 Stat. 2727; amended Pub. L. 104-106, div. A, title X, Sec. 1075, 
Feb. 10, 1996, 110 Stat. 450; Pub. L. 104-201, div. A, title XVI, 
Sec. 1608, Sept. 23, 1996, 110 Stat. 2737; Pub. L. 105-261, div. A, 
title III, Sec. 371(a)-(c)(2), Oct. 17, 1998, 112 Stat. 1988, 1989; Pub. 
L. 106-65, div. A, title III, Secs. 352, 353, Oct. 5, 1999, 113 Stat. 
572; Pub. L. 106-398, Sec. 1 [[div. A], title III, Sec. 361], Oct. 30, 
2000, 114 Stat. 1654, 1654A-76.)

                       References in Text

    The Federal Advisory Committee Act, referred to in subsec. (d)(6), 
is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set 
out in the Appendix to Title 5, Government Organization and Employees.
    The effective date of this section, referred to in subsec. 
(e)(3)(B), is the date of enactment of Pub. L. 103-337 which was 
approved Oct. 5, 1994.
    The Individuals with Disabilities Education Act, referred to in 
subsec. (f)(1), (3)(B), is title VI of Pub. L. 91-230, Apr. 13, 1970, 84 
Stat. 175, as amended, which is classified generally to chapter 33 
(Sec. 1400 et seq.) of Title 20, Education. Part B of the Act is 
classified generally to subchapter II (Sec. 1411 et seq.) of chapter 33 
of Title 20. Section 602 of the Act was classified to section 1401 of 
Title 20, and was omitted in the general amendment of subchapter I of 
chapter 33 of Title 20 by Pub. L. 105-17, title I, Sec. 101, June 4, 
1997, 111 Stat. 37. Pub. L. 105-17 enacted a new section 602, which is 
classified to section 1401 of Title 20, and contains provisions defining 
``child with a disability'' and ``infant or toddler with a disability''. 
Part H of the Act was classified generally to subchapter VIII (Sec. 1471 
et seq.) of chapter 33 of Title 20 prior to repeal by Pub. L. 105-17, 
title II, Sec. 203(b), June 4, 1997, 111 Stat. 157, eff. July 1, 1998. 
Section 672 of the Act was classified to section 1472 of Title 20 prior 
to repeal by Pub. L. 105-17, title II, Sec. 203(b), June 4, 1997, 111 
Stat. 157. Pub. L. 105-17 enacted a new section 672, which is classified 
to section 1472 of Title 20, and which no longer contains definitions. 
For complete classification of this Act to the Code, see section 1400 of 
Title 20 and Tables.
    Section 6(a) of Public Law 81-874 (20 U.S.C. 241(a)), referred to in 
subsec. (f)(2), was repealed by Pub. L. 103-382, title III, Sec. 331(b), 
Oct. 20, 1994, 108 Stat. 3965.


                               Amendments

    2000--Subsec. (i). Pub. L. 106-398 added subsec. (i).
    1999--Subsec. (c)(3). Pub. L. 106-65, Sec. 353(1), struck out par. 
(3) which read as follows: ``A dependent of a Federal employee may 
continue enrollment in a program under this subsection for the remainder 
of a school year notwithstanding a change during such school year in the 
status of the Federal employee that, except for this paragraph, would 
otherwise terminate the eligibility of the dependent to be enrolled in 
the program. The preceding sentence does not limit the authority of the 
Secretary to remove the dependent from enrollment in the program at any 
time for good cause determined by the Secretary.''
    Subsec. (d)(1). Pub. L. 106-65, Sec. 352, inserted at end ``The 
Secretary may provide for the establishment of one school board for all 
such schools in the Commonwealth of Puerto Rico and one school board for 
all such schools in Guam instead of one school board for each military 
installation in those locations.''
    Subsec. (h). Pub. L. 106-65, Sec. 353(2), added subsec. (h).
    1998--Subsec. (a). Pub. L. 105-261, Sec. 371(a)(1), (2), designated 
first sentence as par. (1) and second sentence as par. (2).
    Subsec. (a)(2). Pub. L. 105-261, Sec. 371(a)(3), inserted at end 
``If a member of the armed forces is assigned to a remote location or is 
assigned to an unaccompanied tour of duty, a dependent of the member who 
resides, on or off a military installation, in a territory, 
commonwealth, or possession of the United States, as authorized by the 
member's orders, may be enrolled in an educational program provided by 
the Secretary under this subsection.''
    Subsec. (c)(1). Pub. L. 105-261, Sec. 371(c)(1), designated existing 
provisions as subpar. (A) and added subpar. (B).
    Subsec. (c)(2)(B). Pub. L. 105-261, Sec. 371(b), added subpar. (B) 
and struck out former subpar. (B) which read as follows: ``A dependent 
referred to in subparagraph (A) may be enrolled in the program for more 
than five consecutive school years if the Secretary determines that, in 
the interest of the dependent's educational well-being, there is good 
cause to extend the enrollment for more than the five-year period 
described in such subparagraph. Any such extension may be made for only 
one school year at a time.''
    Subsec. (c)(2)(D). Pub. L. 105-261, Sec. 371(c)(2), added subpar. 
(D).
    1996--Subsec. (d)(7). Pub. L. 104-201 added par. (7).
    Subsec. (e)(4). Pub. L. 104-106 added par. (4).


                    Effective Date of 1998 Amendment

    Pub. L. 105-261, div. A, title III, Sec. 371(c)(3), Oct. 17, 1998, 
112 Stat. 1989, provided that: ``The amendments made by this subsection 
[amending this section] shall apply with respect to academic years 
beginning on or after the date of the enactment of this Act [Oct. 17, 
1998].''


                            Savings Provision

    Section 351(c) of Pub. L. 103-337 provided that: ``Nothing in 
section 2164 of title 10, United States Code, as added by subsection 
(a), shall be construed as affecting the rights in existence on the date 
of the enactment of this Act [Oct. 5, 1994] of an employee of any school 
established under such section (or any other provision of law enacted 
before the date of the enactment of this Act that established a similar 
school) to negotiate or bargain collectively with the Secretary with 
respect to wages, hours, and other terms and conditions of employment.''

                  Section Referred to in Other Sections

    This section is referred to in section 2605 of this title.
