LAW REVIEW 1032

Congress Enacts New Protections for Mobilized Students

By Captain Samuel F. Wright, JAGC, USN (Ret.)

1.1.2.4—Legal protections for mobilized students

Congress has enacted legislation to protect the rights of college students who are called to duty, as members of the National Guard or Reserve.  This important provision is included in section 487 of the Higher Education Opportunity Act, Public Law 110-315, 122 Stat. 3078.  President Bush signed this bill into law on Aug. 14, 2008.  This new law applies to all institutions of post-secondary education.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not apply to the relationship between a student and an educational institution, because this is not an employee-employer relationship.  Those who drafted this new law for students clearly modeled their law on USERRA.  Indeed, whole sentences of USERRA are included almost word-for-word.

Josephine Smith, a member of the Army National Guard, is a college undergraduate.  During a semester, she learns that she is being called to active duty for deployment to Afghanistan.  Smith is required to provide advance verbal or written notice to the university, or an appropriate officer of Smith’s service or an appropriate Department of Defense (DOD) official can notify the university on her behalf. 

When giving notice to the university, Smith is not required to predict when or if she will be returning to resume the educational program.  This new law keeps the educational program behind her as an unburned bridge.  If she later meets the eligibility criteria, she has the right to resume the program, regardless of what she may have intended or said at the time she was called to the colors.

Smith is exempted from the requirement to provide advance notice to the university if providing such advance notice is “precluded by military necessity” (e.g., operational security considerations).  This provision was borrowed directly from USERRA.

Smith’s cumulative period or periods of uniformed service, with respect to the educational program for which she seeks reemployment, must not have exceeded five years; however, there are multiple exemptions from the five-year limit, borrowed directly from section 4312(c) of USERRA, 38 U.S.C. 4312(c).   All involuntary service and some voluntary service are exempted from the computation of the limit.  Thus, there are circumstances in which the individual can be away from school for service for substantially more than five years, and still have the right to reinstatement.

After release from the period of service, Smith has three years to apply for readmission at the university.  This is substantially more generous than USERRA, which generally requires the returning veteran to submit his or her application for reemployment within 90 days after release.  The deadline to apply for readmission can be extended an additional two years if the former student is hospitalized or convalescing from an injury or illness incurred or aggravated on active duty.

Upon meeting these criteria, the returning student is entitled to pick up where he or she left off in the educational program.  The educational institution is required to make “reasonable efforts” to help the student succeed, including remedial courses.

In his or her first year back at school, the returning veteran is to be charged the tuition and fees that were in effect at the time he or she left school for service.  After the first year, the tuition and fees revert to the standard rate charged all students. 

The Department of Education will be adopting regulations to clarify this new law.  We will keep the readers informed of developments.

If you have questions, suggestions, or comments, please contact Captain Samuel F. Wright, JAGC, USN (Ret.) (Director of the Servicemembers’ Law Center) at swright@roa.org or 800-809-9448, ext. 730.

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