Answering the Call to Serve & the Classroom: How the Legal Community Needs to Address the Issues Faced by National Guard and Military Students

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Two grenades were strapped directly next to two bright neon highlighters on the chest of my body armor.  The highlighters weren’t military issue, but the grenades certainly were.  As I flipped the page on the Contract Law textbook, another KA-BOOM! echoed, sending a shockwave reverberating through the cold air.  I marked my page with a sticky-note and stuffed the textbook into my cargo pocket as I approached the firing line.  As I tossed both grenades one after the other, I longed to throw the contracts textbook right along with them.  I safely exited the firing line and returned to reading about contracts while the KA-BOOM’s echoed a few yards away.  Who knew handling grenades would be easier than learning contract law?

That was my first experience juggling being a full-time law student and a soldier in the Army National Guard.  Looking back now, explosions certainly make for an apt analogy to that first semester in law school.  Throughout my six years in the National Guard and nearly three years in law school, I will never forget the stress of that first drill weekend as a law student.  Tossing the grenades was the easy and fun part; trying to read my contracts assignment and get my professors to understand that I was not just skipping class was a different story.

I realize that I am not alone in the struggle of attending law school while being a National Guard soldier.  I have classmates, friends, and even professors who have had similar experiences.  These fellow service members have had studies and employment opportunities impacted by having to put their call and duty to service before school, especially due to recent events surrounding the National Guard’s COVID-19 response efforts.

The Lack of Attendance Policies Echoes Concerns That Too Few in the Legal Community are Aware of the Issues Faced by Student Service Members

Despite the intelligence of legal professionals, I am constantly reminded that many are not aware of the conflicts between the call to serve and the classroom.  This blissful ignorance may be partly due to the overall misunderstanding of the National Guard and the military. Those who would like a better understanding should read this recent article in the Campbell Law Observer that debunks myths about the National Guard and explains its role.

The lack of attendance policies or contingency plans in place at law schools for National Guard students who are forced to choose between the classroom and the call to serve is unfortunate. It needs to be addressed by the American Bar Association and every law school in the nation.

Despite the COVID-19 pandemic some 43,000 Americans decided to enlist in the Army National Guard in the 2020 fiscal year. This brings the Army National Guard’s year-end numbers to a total of 336,000 Americans serving according to Army Lt. Col. Damon Hogsten, chief of the Army Guard’s Strength Maintenance Division. Currently, there are also over 200,000 Americans serving in the U.S. Army Reserve. Add this to the thousands also serving in the Air Force, Coast Guard, Marines Corps, and Navy Reserves. Many service members are college, graduate, law students, and even law professors. According to the National Veteran Education Success Tracker, over 78,891 National Guard service members and 86,749 Reservists have utilized the Post 9/11 GI Bill to attend post-secondary education.

However, while serving in the National Guard or the Reserves presents service members with many opportunities that include monthly pay and benefits, such as the G.I. Bill, which creates opportunities to obtain a college and graduate degree that would not otherwise be available, taking advantage of these opportunities is often made far more complicated than necessary.

As an American Bar Association article points out, “[m]any of these difficulties result from the general lack of statutes and rules designed to protect National Guard (and Reserve) servicemembers when their efforts to further their education conflict with the duties of their service.” The article goes on to state that:

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 Scenarios That Present Conflicts: (1) When State Duties Require Absence From Class; (2) Activation While Preparing for the Bar

There are two scenarios where National Guard troops are particularly vulnerable to conflicts between the call to serve and preparations for the practice of law.  The two instances being: (1) when drill, inactive or active state duties require an absence from class; and (2) when a call to serve occurs while preparing to sit for the state’s bar exam after graduating from law school.

In the first scenario, the lack of statutes, regulations, and the American Bar Association’s lack of guidance makes National Guard service members particularly vulnerable to having educational opportunities put on hold when attending drill and other military duties require absence from law school. While statutes like the Higher Education Opportunity Act of 2008 provide protections to service members who have their education interrupted by “active military service,” these protections do not extend to students in the National Guard.  National Guard students are forced to be absent from class in order to attend drill or perform state duties.

As explained in a recent Campbell Law Observer article, the National Guard’s state duties and responsibilities continue to increase drastically during 2020 as they range from responding to COVID-19, hurricanes, nationwide protests, wildfires, and assisting at elections polls.  This unprecedented number of National Guard troops’ activations across the country this year has undoubtedly led to the interruption of quite a few academic endeavors for National Guard troops.  Such activations force service members to decide between missing class, exams, and valuable learning opportunities that could jeopardize grades and even their continued enrollment or risk going AWOL (Absent Without Leave) and be subject to military discipline that could lead to being discharged.  Reid Seagran notes, “Apart from the injustice of forcing a servicemember to make such a choice, such situations have a real potential to impair a servicemember’s ability to focus their undivided attention on their duties and returning home safely.”

While some states have enacted legislation, such as N.C.G.S. 116-11(3b), to protect student service members from making such choices while attending state-funded institutions of higher learning, those statutes generally do not apply to private universities.  Private universities and law schools such as Campbell, Duke, Elon, and Wake Forest are not bound by statute to create policies to allow for excused absences and support for National Guard personnel.  Thus, while private universities and law schools are quick to accept G.I. Bill funding from National Guard students, they continue to refrain from putting policies in place to support those students when they receive the call to serve that takes them away from the classroom.

In the second scenario, one has graduated from law school and is preparing for the bar exam.  Then natural disaster strikes, or as it happened this summer, a global pandemic occurs, and their National Guard unit gets activated to respond.  In this situation, the service member is unlikely to get out of serving and is also unlikely to be able to get a refund or allowed to reschedule their bar exam.  As demonstrated by this past bar examination testing during the pandemic, it is clear that bar examiners’ notoriously strict policies will not yield for anything or anyone.

The current bar exam policies leave National Guard troops unable to make the bar examination up later if the exam conflicts with their service.  The lack of support for National Guard bar examinees also creates the risk for significant financial and career loss.  The fees and costs associated with taking a bar exam vary by state, but they can amount to upwards of one thousand dollars.  That’s not to mention the thousands of dollars spent on bar preparation courses as well as the considerable time investment it takes to study for the bar exam.  Nonetheless, suppose duty calls while one is preparing for the bar exam, in most states.  In that case, National Guard troops are forced to abandon these enormous investments of time and money and cannot be refunded or rescheduled for a later date.

Some state bar examiners, such as those in California, have a refund system for service members whose military service prevents them from taking the bar. Unfortunately, in the majority of states, including North Carolina, law students who serve “must continue to risk becoming financial victims because of their patriotism and public service when sitting to take their state’s bar exam.”^[1]

Conclusion: Law Schools & the Legal Community Should Do Better

While American law schools are quick to say they “Support the troops” and are “military friendly” and do not hesitate to accept G.I. Bill funding, those generalized support efforts are misplaced if military students continue to be prevented from pursuing the practice of law due to their military service obligations.  The American Bar Association does not have any guidance for how law schools should address the dilemma that National Guard service members students face.  While some states have statutes that provide support for military students at public universities and public law schools, students at private law schools are left fending for themselves.

This dilemma could and should be addressed by the American Bar Association, the legislature, and each and every law school.  As the year 2020 has made clear, the National Guard constantly lives up to its motto of “Always Ready, Always There” by answering the call to serve state and country.  The least that law schools and the American Bar Association can do is to create policies that ensure that students serving in the National Guard can return home to the classroom without having to forfeit the educational and professional opportunities that they had before receiving the call to serve.  This Veteran’s Day, let’s start thinking about how law schools and the legal education system could and should do better to facilitate the difficulties that arise when students face the call to serve and the classroom.

^[1] Reid Seagreen, The Call to Serve and the Classroom: Issues Facing National Guard Servicemembers Attending Secondary and Graduate Schools, American Bar Association Dialogue (June 15, 2013) https://www.americanbar.org/groups/legal_services/publications/dialogue/volume/17/fall-2013/the-call-to-serve-and-the-classroom–issues-facing-national-guar/