In 2012 alone, nearly sixty thousand young Americans enlisted in the Army National Guard and the Air National Guard ("National Guard"). For many of these servicemembers, the National Guard represents a unique opportunity to serve their states and country while obtaining the education required to find meaningful employment in the civilian workforce. However, while serving in the National Guard may present servicemembers with opportunities, like obtaining a college or graduate degree, that would otherwise be unavailable to them, servicemembers all too often find that taking advantage of these opportunities is far more difficult than they had anticipated.
Many of these difficulties result from the general lack of statutes and rules designed to protect National Guard servicemembers when their efforts to further their education conflict with the duties of their service. When such conflicts occur and protections are lacking, servicemembers may find themselves faced with a difficult choice between jeopardizing their education and ability to find a job after their service is completed, and risking being discharged from service and facing the accompanying repercussions, which can be severe. Two instances where National Guard servicemembers are particularly likely to encounter such conflicts are when their inactive or active state duties require them to be absent from their educational institutions, and when they have completed law school and have prepared and paid to sit for their state's bar exam but receive an unexpected and conflicting call to serve.
In the first scenario, the lack of statutes and rules protecting servicemembers in the National Guard makes them particularly vulnerable to having their educational aspirations challenged when their military duties require them to be absent from their educational institutions. While the relatively infrequent duties and substantial educational benefits that accompany service in the National Guard make the prospect of seeking a college degree while serving seem attractive, National Guard servicemembers cannot rely on many of the protections available to other servicemembers working toward a degree, including with regard to the Higher Education Opportunity Act of 2008 ("HEOA"). HEOA provides protections to students who have their education interrupted by a period of voluntary or involuntary uniformed service, mandating that they be readmitted to their educational institution, have their tuition refunded if their education is interrupted, and not receive a failing grade in interrupted courses.
While HEOA did much to ensure that servicemembers called to serve the U.S. government would not have their educational plans dashed by an unexpected call to serve, it did not extend its protections to National Guard servicemembers forced to be absent from class to attend training or perform state duties. In the absence of such protections, National Guard servicemembers, if they receive a call to serve at an inopportune time, could be forced to decide between missing an important test, which could jeopardize not only their grade in a course but their continued enrollment in their educational institution, or risk being discharged from service. Apart from the injustice of forcing a servicemember to make such a choice, such situations have a real potential to impair a servicemembers ability to focus their undivided attention on their duties and returning home safely.
With the great pride and respect most Americans feel for their servicemembers, it would be easy to deny the possibility that a teacher or educational institution would ever knowingly put a student–servicemember in such a position in the absence of statutory protections. However, in 2012, a servicemember attending the University of Northern Iowa ("UNI") found himself in such a position when a test he was scheduled to take was moved from a Wednesday to a Friday, which conflicted with an Iowa Army National Guard training session. Although UNI is listed as a "military friendly school," the servicemember's professor informed him that he would receive a failing grade on the exam if he was absent. To protect his academic standing and future at UNI, the servicemember was eventually forced to file a grievance with UNI against his professor to ensure that the missed exam would not affect his grade in the course.
In recognition of the reality of such conflicts and their potential to unnecessarily distract servicemembers, a number of states, including Washington and Illinois, have enacted laws providing HEOA like protections to National Guard servicemembers. Under the Illinois Service Member's Employment Tenure Act, National Guard servicemembers have the right to make up examinations their service requires them to miss and to have their tuition refunded if their state or federal service requires them to be absent from their educational institution for seven or more days. In addition to ensuring that such conflicts do not punish members of the National Guard for their service, such laws encourage servicemembers to enroll in institutions of higher learning, and to aid them in reentering the civilian workforce when their service is complete.
To some extent, law school students serving in the National Guard are in an even more precarious position than their fellow servicemembers attending college for the first time. As with National Guard servicemembers attending college, law students serving in the National Guard cannot count on federal laws to protect them if their plans to sit for the bar exam conflict with an unexpected call to serve. However, unlike servicemembers attending college, even if members of the National Guard hoping to take the bar exam are fortunate enough to have examiners sympathetic to their situation, they are powerless to allow for a make–up exam, given the notoriously strict rules that govern the administration of such tests.
Along with being unable to make the test up at a later date, National Guard servicemembers attempting to sit for their state's bar must also risk losing the significant payment required to be ready and able to take such an exam. The fees alone required to register and take a bar exam, while varying substantially from state to state, can be as high as $910. Along with this initial cost, a servicemember could easily spend an additional $2,000 on a prep course tailored specifically to the day the exam is scheduled to take place. Of course, these monetary expenses do not include the long hours these servicemembers could expect to spend studying to be ready for their exam. Given the great investment in time and money that such examinations require, it is likely that some servicemember would be forced to indefinitely delay their plans to take the bar and begin working as an attorney, if their service necessitates the total abandonment of their investment.
In response to the unfairness inherent in forcing National Guard servicemembers to forfeit such a substantial amount of money and time to answer a call to serve, a number of state bars have taken action to allow servicemembers to recover some portion of their expenses. In a growing number of states, including California and Louisiana, servicemembers whose duties force them to miss the bar exam are now eligible to have their examination fees fully refunded. Unfortunately, in many other states, including Illinois, servicemembers must continue to risk becoming financial victims because of their patriotism and public service when sitting to take their state's bar exam.
While many states have made laudable efforts to reward and encourage military service, such efforts are wasted if servicemembers are prevented from availing themselves of the benefits they have earned by the very nature of their service. Those serving in the National Guard strive to provide professional and skillful service in crisis both at home and abroad when they are most needed. Forcing them to choose between their military duties and their educational and professional futures when they are called upon to serve has the potential to provide a dangerous distraction to their safety and ability to complete their mission. Fortunately, these problems can be easily remedied with the passage of state legislation in those states that have yet to do so, ensuring that servicemembers will return home to find that they have the same educational and professional opportunities as they had when they left.