Number 32, November 2001:
Does USERRA Apply to Students?

By CAPT Samuel F. Wright, JAGC, USNR*

Q: I am an Army Reserve Major, currently attending law school full time. I am being recalled to active duty, and I am concerned about my status at the law school.

I have researched the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-4333USERRA, as well as Titles 20 (education) and 38 (veterans’ benefits) of the United States Code, and I have not found any provision that seems to apply to this situation. When I inquired about this matter with the law school dean, I was referred to university-wide guidance to the effect that activated Reservists have the option to take an “incomplete” or to withdraw completely. The written guidance pointedly states that the returning Reservist is not guaranteed re-admission.

I also looked at the law school’s own written academic policy. That policy states that a student who has taken a “permissive withdrawal” has only one year to gain re-admission, and the policy states that the one-year time limit cannot be waived, even by the dean. President Bush has warned the nation not to expect victory in the fight against terrorism to come quickly or easily. I am concerned about completing my law school education. I have already invested two years of my life, plus a great deal of money, in getting that education. I am already older than most of my law school classmates. I have always wanted to be a lawyer, and I think that it is fundamentally unfair that my service to our country would cause me to lose that dream.

What are my legal rights, and what can ROA do to help me with this problem? I respectfully suggest that I should not have to worry about problems of this kind as I leave to serve our country in the present emergency.

[Note: This question is based on an amalgamation of several e-mails that I have received from different individuals, including ROA members who are parents of college undergraduates who are Reservists. Please do not try to identify these facts with any one specific individual.]

A: USERRA does not apply to this situation. That law applies to the relationship between an employer and employees, not between an educational institution and students. You are also correct that there is no other federal law that helps you with this problem. West Virginia has such a law, but I am not aware that any other state does.

If you believe that your school has placed an unreasonable demand on you, contact Service members Opportunity College (SOC), 1-800-368-5622, or vist the Website, www.soc.aascu.org. SOC, a consortium of 1500 colleges and universities, was created in 1972 to provide educational opportunities to servicemembers.

I was employed as an attorney for the U.S. Department of Labor for a decade (1982–92). During that time, I served on the interagency task force that drafted USERRA. I recall participating in discussions on the question of whether USERRA should be written to apply to students as well as employees. I recall two meetings on this question, one at the Department of Education and the other at the Veterans Administration. Neither of those agencies showed any interest in trying to get Congress to assign to them responsibility for solving this problem.

In fairness, I should note that at the time (1987) the problem seemed hypothetical. There had been no major call-up of Reservists since the Korean War. Since then, there have been two major call-ups (Operation Desert Storm and now Operation Enduring Freedom), as well as several smaller call-ups.

ROA will now make this issue a legislative priority. In that regard, we want to hear from members who are affected by this issue.

*Military title used for purposes of identification only. The views expressed herein should not be attributed to the Department of the Navy or the U.S. government generally.

Captain Wright was employed as an attorney for DoL for ten years. He was largely responsible for drafting USERRA, along with one other DoL attorney. He also helped to write the successful appellate briefs for the veterans in both the Imel and the Akers cases. Most recently, he was on active duty for 71 days (May–July 2001), including 40 days in Bahrain. Please see his July 2001 “Law Review” article.
You may write to Captain Wright at ROA, or you can reach him by e-mail at samwright50@ yahoo.com.