The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life?

1. The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? CSA 543 – Melissa McGinnis Modern American universities often evoke images of laurelled sanctuaries in a unique and safe environment. At the same time, colleges are filled with potential safety risks for students. Dangers include young students with new-found freedom, and an illusion of safety among an amalgam of old and new buildings, combined with an alcohol culture. Student injury claims are increasing, and during this time of great need, the law of higher education is more confusing than ever. Looking at past images of higher education, the authors offer concrete proposals for ways to rebuild the safety of our universities by filling four critical needs, 1) mapping the law so any layperson can understand, 2) researching the need for a vision to fill the void left by the fall of in loco parentis, 3) bridging the gap to help heal the relationship problems between university law and the real world, and 4) showing that society at large has a large stake in university law, with the hope of advancing the view of the university as facilitator. The following poster presentation provides an overview of the themes and images by era with the hopes of discarding the weak ones and building upon the stronger ones.

2. The Blackstone Era • Pre-Revolutionary War – a time when there was no concept of public schooling • Based on 1800’s English Law • Assigned authority to tutor • The father could delegate his power over his children – the father paid the schoolmaster to educate his child, and the schoolmaster agreed to educate the child. The father must give nearly limitless paternal power over the child. • The legal paradigm of the Blackstone Era put foremost emphasis on discipline. • Sample case law: example of schoolmaster beating a child to death was convicted of manslaughter not murder Delegation of a father’s rights to discipline: “Under English family law – which became the law of America…the father was the head of the family and held power over his wife and children. Wife (and mother) were basically considered ‘one’ with husband/father and the one was the husband/father. The father had almost limitless authority over the children of the household. Wife/mother and children were subject to discipline, deliberate corporal punishment, and even harms caused by gross negligence without much legal recourse.” (p. 19) Sir William Blackstone Man/husband/father held a kind of sovereignty over his family affairs – man was king of his own castle. • This set the tone for over two centuries of school law – including higher education law (but not until after the Revolutionary War) • In loco parentis power was paternal, male, often stern, disciplinary power

3. In loco parentis • First appeared in higher education well after the Revolutionary War • “Insularity from legal scrutiny” • “Above the law” • “Blanket of security around university culture” • Rules involved rights to discipline students and • the right to employ corporal punishment • It was the turn of the 20th century before college and university • law started to reflect In loco parentis more clearly • Gottv. Berea, 1913: “Colleges stand in loco parentis concerning the physical and moral welfare and mental training of the pupils, and…to that end [may make] any rule or regulation for the government or betterment of their pupils that a parent could for the same purpose unless unlawful or contrary to public policy.” (p. 22) • Model of Gott: students prohibited from going to certain off campus locations • Stetson v. Hunt: a student expelled for disruptive behavior in the dorm • 1. to discipline, control, and regulate • 2. power was paternal • 3. power was a contractual delegation of • authority among state, trustees, and officials • Power in University authority – not in the courts or the students • Free to exercise disciplinary power (or not) • The courts reinforced this • Little or no emphasis on protecting college student safety Prior to the 1960’s Dean Wormer

4. In loco parentis was the 1st legal image of doctrine regarding American Universities • Not a legal document but a legal tool for immunity. • “University affairs were generally university • business and best settled there. In loco parentis was • the specific tool to protect, to immunize, university • conduct from legal review when deliberate or • intentional actions were taken to discipline and regulate • students. The courts used other tools to immunize universities when students claimed damages for physical harm caused by accidental or negligent conduct of omissions. The tools used to immunize the university in those circumstances were governmental or charitable tort immunities.” (p. 29) • Charitable Immunity – lasted until 1970’s give or take • Hamburger v. Cornell, 1923 – student severely injured in a lab accident; • in loco parentis was never mentioned but the student received no reward • because the University was a “Charitable Organization” • Governmental Immunity– gradually receded in the 40’s, 50’s and 60’s; • Fell fast in the 70’s along with in loco parentis • the seed of duty was planted through • paid tuition = contract • Private Universities – similar to family; similar to charities – but not the same • Public Universities – similar to government – but not the same • Universities are a hybrid, and in loco parentis is one feature of an overall system protecting colleges. Other features… public government charity private family

5. Civil Rights Movement • 1960’s – early 1970’s • The Constitution came to campus • Students no longer children but constitutional adults • Universities were the major focal point of the major • social issues of the time • students asked the courts to intervene • The death of in loco parentis – correlates exactly with • the rise of student economic power and • the rise of civil rights • Social initiatives for women & children's rights • Charitable institutions no longer above the law • Thanks to the abuse and scandal • Modern insurance more available • Americans began to challenge Government itself • Civil rights • Rights to make war • Draft • Role of police • Nature of the presidency • Scheuer v Rhodes • Legal perspective: • Economic harm (expelled, losing tuition, future jobs) • e.g. Dixon v. Alabama • Intangible harm (denied civil rights, invasion of privacy) • Physical harm (killed or injured) • Property harm (damaged car, etc.) • Dixon shifted contract • between parent and college • to student and college • Dixon set the stage for student consumerism; • University became “the man” Student Rights Due Process Protection from Search & Seizure Equal Access Political Speech Establish & Participate in Student Orgs

6. Public v. Private • Dixon established that unfettered powers to discipline, regulate, and expel were no longer constitutionally permissible at public universities. • They looked less like parents and more like governmental entities such as cities and towns • The demise of in loco parentis in private colleges came on much more slowly. Courts typically fell back on student/university relations as a matter of contract – one which was not often with the student themselves. • Three critical variables: • private college education is connected to public interest • college contract was a collection of printed catalogs, rules, etc. that was offered on a “take it or leave it” basis • odd that students who pay less for public education receive more rights than private college students • A shift in contract analysis – more like hybrid tort • At the same time students succeeded in changing their student/university relationship to a governmental/commercial one, the citizen/consumer paradigm was still forming. Governments still had few duties to protect citizens from harm. • Tenant rights were still forming • Legal protection from stalkers still forming • Students won new rights and championed a new legal image regarding • their relationship to the university, but the government and business • roles were still beginning to take shape – Birth of the Bystander Era • University law explored how student freedoms won would • translated into rights and duties of public safety but the • law was immature in these areas. • University life was now legally non-immunized • and substantially imbalanced…

7. The Bystander Era • 1970’s – mid-1980’s • Reminiscent of worker’s rights in the 19th Century • Created a caste of uncontrollable students • Tweenagers between parental control and mature adults • American Universities became a dangerous place • New wave of law suits by injured students • Courts stopped relying on parental model and began using • legal analytical tools of duty/no duty: • University was cast into the legal and cultural role of helpless bystander when it came to student life and danger. • “The Famous Four” – variations of the theme of alcohol, college students, and on or off-campus activities – “the new relational reality”: • Bradshaw v. Rawlings, 1979 (off-campus drinking) Birth of a new adult student body • Baldwin v. Zoradi, 1981 (field trips) Free to be unreasonably safe; university did not have to enforce policies • Beach v. University of Utah, 1986 (on-campus drinking) Babysit? Or treat them like adults and let them injure themselves • Rabel v. Illinois Wesleyan University, 1987 (hazing) higher education is not a custodial relationship but an educational one • The Courts concluded that the University was not legally responsible for harm caused because there was no legal duty. The political effect of no duty was the creation of a new de facto university immunity. • Alternatively, there were crosscurrent cases that DID NOT • insulate university conduct from legal scrutiny • Bystander Era = Ambiguous Time

8. Tort • In general, if someone has been injured physically by university misconduct or omission, they look to the law of torts for a remedy Universities rarely responsible under these rules Intentional torts Strict liability Negligence – the major vehicle by which people sue universities Negligence Three basic theories on which to proceed Four [virtually universal] Elements: 1) Duty 2) Breach of Duty 3) Causation 4) Damage The existence of duty is necessary for legal liability Did you do what was reasonable? “Factual” Did the breach of duty cause the harm? “Proximate” Yes, my carelessness is connected to this injury but it’s not fair to make me pay “Punitive” is rare at universities because shows malicious conduct; so usually just “negligent” Policies/Factors in determining duty (articulated in Tarasoff case): Foresee ability of harm/danger Seriousness of the harm Closeness between the defendant’s conduct and the injury produced Moral blameworthiness of the defendants’ conduct Policy of preventing future harm Burden on and consequences to the defendant and the community should a duty be imposed Cost, availability, and prevalence of insurance, if any Famous Case: Mullins v. Pine Manor College (a college must use reasonable care to prevent foreseeable criminal attacks on campus) What is the nature of the student/university relationship?

9. The Duty Era • Mid-1980’s – Millennium • Fairly steady erosion of no-duty-to-student bystander case law and rise of successful student litigation regarding physical safety on campus since the early- to mid-80’s • Courts still reluctant to impose liability on colleges in alcohol-related cases • But a shift has occurred – • It is a time of transition • Judges applying more traditional negligence duty • Universities less subject to traditional insularity rules • Still trying to be sensitive to the uniqueness of college affairs and the American college experience • New image of shared responsibility • Balance of university authority and student freedom • The university owes duties to students and students owe duties to protect themselves (see comparative negligence). Sometimes students are fully responsible (Banks v. Trustees of the University of Pennsylvania: student fell when she scaled a wall) • Three major points of agreement: • Should not return to in loco parentis • University responsibility for student injury is limited but on the rise • Recent case law is difficult to understand and needs a new image • No single case or set of cases in this era. Claims are sorted into categories: • Premises/landlord responsibility (Poulin v. Colby College; man slipped on ice, college owed duty. If university fails to properly maintain premises - no longer entitled to immunity) • Responsibility to control dangerous persons on campus (Furek v. The University of Delaware; student injured with oven cleaner in a hazing incident; the university is seen as a guide and co-creator of campus life and student activities (a shift from “the famous four” bystander cases) • Responsibility regarding student activities (Regents v. Roettgen; student killed in a rock climbing class. There is no duty to protect against inherent, obvious, or primary risks of such activities. • Responsibility for student alcohol use and abuse (see University of Denver v. Whitlock; Hartmann v. Bethany College; Booker v. Lehigh University; Millard v. Thiel College; Rhodes v. Illinois Cent. Gulf). When alcohol is in the mix, potential college liability wanes considerably. • Cases require only reasonable care - not all possible care • The Duty Era has ended almost all aspects of college insularity – • except with respect to alcohol • Continued search for balance between university authority, • student freedom, & shared responsibility

10. University as Facilitator • Mid-1980’s – Millennium • Time of transition in university law in almost every sense • “It is not just a time of transition in law, higher education, and culture – • it is a time when college students are experiencing those changes personally, politically, and legally” (p. 188) • Education should serve four basic things during this time of transition: • Hope (lack of hope breeds physical, spiritual, and emotional danger) • Responsibility (“consumers” feel they pay top dollar for a less valuable commodity, i.e. education) • Appreciation of differences (zero-sum relationship facilitated disconnectedness) • Efficacy (need to believe they can make a difference) • The facilitator model is: • designed to offer a comprehensive, adaptable legal and practical model for university/student affairs. • Adaptable to the circumstances of college life and can work for higher education in transition and in its future states in the post-industrial age • Descriptive, predictive, practical, theoretical, liminal, interdisciplinary • A tool of communication between the university and legal reality • A facilitator is: • A guide who provides support, information, interaction, and control as necessary and appropriate • Somewhere between a dominating parent and a pure stranger or bystander and understands that family roles may be appropriate for some • Someone who does not choose, but allows the students to choose for themselves and shoulder significant responsibility • Aware of risks, and adapts and varies the level and nature of involvement • Like a fiduciary and can be in a position of trust, but knows it is not always necessary or appropriate • When in the business role, does not simply give the consumers what they want • Sometimes a bystander but my choice in order to facilitate student development • Creative and practical, not stifling and reactive • Not an insurer of student safety, but learns a great deal from modern risk management • Duty is ambiguous but readily adaptable in the facilitator model • The facilitator model is a synthesis of contract and tort law: • law as a positive tool; empowering • A facilitator recognizes that legal scrutiny is inevitable • The facilitator college is a hopeful and positive place and does not look backwards to see what is lost but forward to what is gained

11. Works Cited Baldwin, Beach, Bradshaw & Rabel sound files recorded from text retrieved on December 4, 2008 at http://compelledtoact.com/Involvement_pages/Litigation/Civil_law_Analysis.htm Bickel, R. D. & Lake, P. F. (1999). The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? Durham, NC: Carolina Academic Press.