Number 32--Update, February 2003:
Does USERRA Apply to Students?

By CAPT Samuel F. Wright, JAGC, USNR*

In Law Review 32 ("Does USERRA Apply to Students?"), published in November 2001, I pointed out that neither the Uniformed Services Employment and Reemployment Rights Act (USERRA) nor any other federal law protects students called to active duty from a Reserve status.

Shortly after that article was published, Congress addressed this issue, at least in part. I invite the reader’s attention to section 3 of the Higher Education Relief Opportunities for Students Act of 2001, Public Law 107-122, 115 Stat. 2386, 2387-88 (enacted 15 January 2002). That section expresses the "sense of Congress" that students called to active duty should receive full refunds and that all institutions of post-secondary education should "make every effort to minimize deferral of enrollment or reapplication requirements and should provide the greatest flexibility possible with administrative deadlines related to those applications."

It should be noted that a "sense of Congress" is not judicially enforceable, but this language is likely to be very helpful in "jawboning" college and university administrators when this issue arises, as it most certainly will. If your educational institution is giving you a hard time about tuition refund, grade protection, or the right to readmission after military service, you should contact the Servicemembers’ Opportunity Colleges (SOC) organization at 1-800-368-5622. You should also take a look at the SOC Web site: www.soc.aascu.org. SOC is a consortium of 1,500 colleges and universities established more than 30 years ago to promote educational opportunities for members of the armed forces. As a collateral duty, it assists students with problems of this kind.

If this "sense of Congress" language is not sufficient, we at ROA are prepared to push for legislation requiring educational institutions to make these accommodations, on penalty of losing all federal funding. Please let me hear from you if you are having this kind of problem, or if you know someone who is. You may send me an e-mail at swright@roa.org, or you can write to me in care of ROA. Please do not contact me until after you have tried to resolve the matter through the college or university and SOC.

It has come to my attention that the Wisconsin state legislature recently enacted legislation protecting students called to active duty. Other state legislatures are considering similar protections. Lobbying individual state legislatures regarding this issue would be a good project for ROA departments to undertake.

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