Can you be removed from your college program due to National Guard activation?

SGT Private RallyPoint Member — Thu, 02 Apr 2020 12:48:38 -0400

My wife is a law student and recently found an article regarding another law student in New York who is potentially being removed from their school due to their activation in the National Guard (I believe in response to COVID-19). Some people are rallying to help this individual and I was hoping some of you may be able to give insight on what this persons rights are. One regulation does state that in this law school program, no student may be involved in any type of work or obligation that would hinder their full-time law school requirements. However, I’m fairly certain there are numerous federal and state laws that counteract this. Any clarification/sources/etc would be greatly appreciated. The link to the article is listed below.

https://abovethelaw.com/2020/04/uva-forcing-student-to-withdraw-from-law-school-because-her-national-guard-unit-was-called-up/

UVA Deciding Whether To Force Student To Withdraw From Law School Because Her National Guard Unit...

Read the room, UVA.

Response by LT Brad McInnis made Apr 2 at 2020 12:53 PM

LT Brad McInnis — Thu, 02 Apr 2020 12:53:11 -0400

Not a lawyer, but I don't think they have the right. My guess is that when she mobilized there will be a JAG type that can help sort it out.

Might add JAG tag on your topic so the JAGs here will answer.

Response by LTC Private RallyPoint Member made Apr 2 at 2020 1:28 PM

LTC Private RallyPoint Member — Thu, 02 Apr 2020 13:28:36 -0400

Interesting choice of words. Removed or Activated?

Response by SGT Dave Tracy made Apr 2 at 2020 1:56 PM

SGT Dave Tracy — Thu, 02 Apr 2020 13:56:42 -0400

So the school is removing the student because they are a member of the guard and subject to activation or in this case actually activated, eh? I have no answers for that.

Other than the potentially legal and certainly ethical considerations of kicking out a student for the grievous sin of serving their nation and their community when it's not convenient (for anyone), I'm curious if the school has gleefully been taking any Guard related education benefits from this student knowing full well, they will pull her from the program if the Guard activates her. If they are taking Guard money, it's a bit difficult to claim ignorance of what that could mean, which makes the school complicit in violating their own cited Academic Policy.

Reading the article makes me think that classes are cohort in nature, but apparently she is keeping up academically, so I'm even more hard-pressed to believe the only "reasonable" response is to for her to retake all her classes a year from now (per the article).

Response by SSgt Christophe Murphy made Apr 2 at 2020 2:36 PM

SSgt Christophe Murphy — Thu, 02 Apr 2020 14:36:26 -0400

Sounds like alot of ifs, maybes and kindas going on. I woud recommend getting better details.

Response by CAPT Kevin B. made Apr 2 at 2020 3:29 PM

CAPT Kevin B. — Thu, 02 Apr 2020 15:29:09 -0400

A simple internet search would suffice. USERRA doesn't apply because the college isn't the student's employer. However there are other protections that the Dept of Education is supposed to Ramrod.

https://cdn.ymaws.com/http://www.roa.org/resource/resmgr/LawReviews/2013/13070-LR.pdf

13070-LR.pdf

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Response by Patricia Overmeyer made Apr 2 at 2020 3:38 PM

Patricia Overmeyer — Thu, 02 Apr 2020 15:38:40 -0400

The student needs to refer the law school dean, or whoever else is making these decisions, to 20 U.S.C. §1091(c). This is the floor of a student's rights to education if that student is in a reserve component and is either called up to active duty by a state through Title 32, or is required to perform their monthly/yearly drills. The Department of Education is required to enforce the law. Their statutory regulations regarding enforcement of USERRA is at 34 C.F.R. §668.18. Your wife will know how to look up these statutes/regulations and can proceed from there.
As I stated, this is the floor of a student's rights under USERRA and the educational institution. Depending on the state where the student resides, there may be even further rights under state laws. Bottom line, no the student cannot be removed from school due to their activation. They may miss a semester and be required to restart that semester but they cannot be removed for that.
If your wife, or any other student who is protected under USERRA, faces this situation, then it's time to lawyer up. You'd think a law school would know the law, but maybe it takes a lawsuit to get their attention.

Response by LTC Jason Mackay made Apr 2 at 2020 4:18 PM

LTC Jason Mackay — Thu, 02 Apr 2020 16:18:19 -0400

I would say they are not following their own rules.

https://www.law.virginia.edu/policies/i-academic-policies-and-procedures-0#ij

Says that you can request leaves of absence. I can't believe UVA does not have a specific Military Mobilization/Leave of Absence policy.

University of Virginia School of Law

Response by LTC Eugene Chu made Apr 2 at 2020 4:25 PM

LTC Eugene Chu — Thu, 02 Apr 2020 16:25:17 -0400

Story was updated that law student would be allowed to remain with waiver.

https://abovethelaw.com/2020/04/uva-grants-waiver-allows-national-guard-student-to-continue-studies/

UVA Grants Waiver, Allows National Guard Student To Continue Studies

Good news!

Response by Capt Gregory Prickett made Apr 2 at 2020 4:43 PM

Capt Gregory Prickett — Thu, 02 Apr 2020 16:43:47 -0400

The student may be required to withdraw from the current semester, but the school is required to readmit the student on his or her return, if the return is within 5 years. It's very similar to USERRA reemployment rights.

In any event, UVA backed down. https://abovethelaw.com/2020/04/uva-grants-waiver-allows-national-guard-student-to-continue-studies/

UVA Grants Waiver, Allows National Guard Student To Continue Studies

Good news!

Response by SGM Bill Frazer made Apr 3 at 2020 5:45 PM

SGM Bill Frazer — Fri, 03 Apr 2020 17:45:49 -0400

If they are mobilized (State or Feds) and don't show- then UCMJ for AWOL, Missing Movement, etc.