10 USC 2164 - Department of Defense domestic dependent elementary and secondary schools

U.S Code last checked for updates: Apr 03, 2025

§ 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.

(3)

(A)

Under the circumstances described in subparagraph (B), the Secretary may, at the discretion of the Secretary, permit a dependent of a member of the armed forces to enroll in an educational program provided by the Secretary pursuant to this subsection without regard to the requirement in paragraph (1) with respect to residence on a military installation.

(B)

Subparagraph (A) applies only if—

(i)

the dependents reside in temporary housing (regardless of whether the temporary housing is on Federal property)—

(I)

because of the unavailability of adequate permanent living quarters on the military installation to which the member is assigned; or

(II)

while the member is wounded, ill, or injured; and

(ii)

the Secretary determines that the circumstances of such living arrangements justify extending the enrollment authority to include the dependents.

(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 Advisory Committees.—

(1)

The Secretary of Defense, acting through the Director of the Department of Defense Education Activity, shall provide for the establishment of an advisory committee for each Department of Defense elementary or secondary school established at a military installation under this section.

(2)

An advisory committee established under paragraph (1) for a school at a military installation—

(A)

shall advise the principal or superintendent of the school with respect to the operation of the school;

(B)

may make recommendations with respect to curriculum and budget matters; and

(C)

except in the case of an advisory committee for a school on a military installation described in paragraph (4), shall advise the commander of the military installation with respect to problems concerning the education of dependents within the jurisdiction of the commander.

(3)

(A)

The membership of each advisory committee established for a school described in paragraph (1)—

(i)

shall include an equal number of parents of students enrolled in the school and of employees working at the school; and

(ii)

when appropriate, may include a student enrolled in the school.

(B)

In addition to the members described in subparagraph (A), the membership of each advisory committee shall include one nonvoting member designated by the organization recognized as the exclusive bargaining representative of the employees working at the school.

(4)

In the case of a military installation where there is more than one school in the Department of Defense elementary and secondary school system, the Secretary, acting through the Director, shall provide for the establishment of an advisory committee for the military installation to advise the commander of the military installation with respect to the education of dependents.

(5)

(A)

Except in the case of a nonvoting member designated under paragraph (3)(B), members of an advisory committee established under this subsection shall be elected by individuals of voting age residing in the area to be served by the advisory committee.

(B)

The Secretary, acting through the Director, shall by regulation prescribe the qualifications for election to an advisory committee established under this subsection and procedures for conducting elections of members to such an advisory committee.

(6)

Members of an advisory committee established under this subsection shall serve without pay.

(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 or toddlers with disabilities, all substantive rights, protections, and procedural safeguards (including due process procedures) available to infants or toddlers with disabilities under part C of such Act (20 U.S.C. 1431 et seq.).

(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 of the Individuals with Disabilities Education Act (20 U.S.C. 1401).

(B)

The term “infants or toddlers with disabilities” has the meaning given the term in section 632 of such Act (20 U.S.C. 1432).

(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).

(j)

Tuition-free Enrollment of Dependents of Foreign Military Personnel Residing on Domestic Military Installations and Dependents of Certain Deceased Members of the Armed Forces.—

(1)

The Secretary may authorize the enrollment in a Department of Defense education program provided by the Secretary pursuant to subsection (a) of a dependent not otherwise eligible for such enrollment who is the dependent of a member of a foreign armed force residing on a military installation in the United States (including territories, commonwealths, and possessions of the United States). Enrollment of such a dependent shall be on a tuition-free basis.

(2)

(A)

(i)

an international terrorist attack against the United States or a foreign country friendly to the United States, as determined by the Secretary;

(ii)

military operations while serving outside the United States (including the commonwealths, territories, and possessions of the United States) as part of a peacekeeping force; or

(iii)

the line of duty in a combat-related operation, as designated by the Secretary.

(B)

(i)

Except as provided by clause (ii), enrollment of a dependent described in subparagraph (A) in a Department of Defense education program provided pursuant to subsection (a) shall be on a tuition-free, space available basis.

(ii)

In the case of a dependent described in subparagraph (A) residing on a military installation in the United States (including territories, commonwealths, and possessions of the United States), the Secretary may authorize enrollment of the dependent in a Department of Defense education program provided pursuant to subsection (a) on a tuition-free, space required basis.

(k)

Enrollment of Relocated Defense Dependents’ Education System Students.—

(1)

The Secretary of Defense may authorize the enrollment in a Department of Defense education program provided by the Secretary pursuant to subsection (a) of a dependent of a member of the armed forces or a dependent of a Federal employee who is enrolled in the defense dependents’ education system established under section 1402 of the Defense Dependents’ Education Act of 1978 (20 U.S.C. 921) if—

(A)

the dependents departed the overseas location as a result of a evacuation order;

(B)

the designated safe haven of the dependent is located within reasonable commuting distance of a school operated by the Department of Defense education program; and

(C)

the school possesses the capacity and resources necessary to enable the student to attend the school.

(2)

Unless waived by the Secretary of Defense, a dependent described in paragraph (1) who is enrolled in a school operated by the Department of Defense education program pursuant to such paragraph may attend the school only through the end of the school year.

(l)

Enrollment in Virtual Elementary and Secondary Education Program.—

(1)

Under regulations prescribed by the Secretary of Defense, the Secretary may authorize the enrollment in the virtual elementary and secondary education program established as a component of the Department of Defense education program of a dependent of a member of the armed forces on active duty who—

(A)

is enrolled in an elementary or secondary school operated by a local educational agency or another accredited educational program in the United States (other than a school operated by the Department of Defense education program); or

(B)

is a home-schooled student.

(2)

In this subsection, the term “home-schooled student” means a student in a grade equivalent to kindergarten or any of grades 1 through 12 who receives educational instruction at home or by other nontraditional means outside of a public or private school system, either all or most of the time.

(m)

Meal Programs.—

(1)

The Secretary of Defense may administer a meal program, consistent with Federal law and standards prescribed by the Secretary of Agriculture for that meal program, for students enrolled in a school established under this section.

(2)

In this subsection, the term “meal program” means a program established under the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.) or the Richard B. Russell National School Lunch Act (42 U.S.C. 1751 et seq.).

(Added Pub. L. 103–337, div. A, title III, § 351(a), Oct. 5, 1994, 108 Stat. 2727; amended Pub. L. 104–106, div. A, title X, § 1075, Feb. 10, 1996, 110 Stat. 450; Pub. L. 104–201, div. A, title XVI, § 1608, Sept. 23, 1996, 110 Stat. 2737; Pub. L. 105–261, div. A, title III, § 371(a)–(c)(2), Oct. 17, 1998, 112 Stat. 1988, 1989; Pub. L. 106–65, div. A, title III, §§ 352, 353, Oct. 5, 1999, 113 Stat. 572; Pub. L. 106–398, § 1 [[div. A], title III, § 361], Oct. 30, 2000, 114 Stat. 1654, 1654A–76; Pub. L. 108–446, title III, § 305(a), Dec. 3, 2004, 118 Stat. 2804; Pub. L. 111–84, div. A, title V, § 534, Oct. 28, 2009, 123 Stat. 2292; Pub. L. 111–383, div. A, title V, § 561, Jan. 7, 2011, 124 Stat. 4221; Pub. L. 112–239, div. A, title V, § 565, Jan. 2, 2013, 126 Stat. 1749; Pub. L. 113–66, div. A, title V, § 553(a), Dec. 26, 2013, 127 Stat. 764; Pub. L. 117–286, § 4(a)(52), Dec. 27, 2022, 136 Stat. 4311; Pub. L. 118–159, div. A, title V, §§ 591–594(a), Dec. 23, 2024, 138 Stat. 1917–1919.)

cite as: 10 USC 2164