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

CSA 543 Melissa McGinnisModern 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.1The Blackstone EraPre-Revolutionary War a time when there was no concept of public schooling

Based on 1800s English LawAssigned 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

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 powerSir William BlackstoneDelegation of a fathers rights to discipline: Under English family law which became the law of Americathe 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)Man/husband/father held a kind of sovereignty over his family affairs man was king of his own castle.

2In loco parentisFirst appeared in higher education well after the Revolutionary War

Insularity from legal scrutinyAbove the lawBlanket 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

Gott v. Berea, 1913: Colleges stand in loco parentis concerning the physical and moral welfare and mental training of the pupils, andto 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 locationsStetson v. Hunt: a student expelled for disruptive behavior in the dorm

1. to discipline, control, and regulate2. power was paternal3. 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 1960s

Dean Wormer

3In loco parentis was the 1st legal image of doctrine regarding American UniversitiesNot a legal document but a legal tool for immunity.

University affairs were generally universitybusiness and best settled there. In loco parentis wasthe specific tool to protect, to immunize, universityconduct 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 1970s 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 40s, 50s and 60s;Fell fast in the 70s along with in loco parentis

the seed of duty was planted throughpaid 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

familycharitygovernmentpublicprivate

4Civil Rights Movement1960s early 1970s

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 timestudents 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 lawThanks to the abuse and scandalModern insurance more availableAmericans began to challenge Government itselfCivil rightsRights to make warDraftRole of policeNature of the presidency

Scheuer v Rhodes

Legal perspective: Economic harm (expelled, losing tuition, future jobs) e.g. Dixon v. AlabamaIntangible harm (denied civil rights, invasion of privacy)Physical harm (killed or injured)Property harm (damaged car, etc.)Dixon shifted contractbetween parent and collegeto student and college

Dixon set the stage for student consumerism; University became the man

Student RightsDue ProcessPolitical SpeechEqual AccessEstablish & Participate in Student OrgsProtection from Search & Seizure5Public 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 interestcollege contract was a collection of printed catalogs, rules, etc. that was offered on a take it or leave it basisodd 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 formingLegal 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

6The Bystander Era1970s mid-1980s

Reminiscent of workers 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 policiesBeach v. University of Utah, 1986 (on-campus drinking) Babysit? Or treat them like adults and let them injure themselvesRabel 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

7TortNegligenceIn general, if someone has been injured physically by university misconduct or omission, they look to the law of torts for a remedyThree basic theories on which to proceedIntentional torts

Strict liability

Negligence the major vehicle by which people sue universitiesUniversities rarely responsible under these rules

Four [virtually universal] Elements:1) Duty 2) Breach of Duty 3) Causation 4) DamageDid you do what was reasonable?FactualDid the breach of duty cause the harm?ProximateYes, my carelessness is connected to this injury but its not fair to make me payPunitive is rare at universities because shows malicious conduct; so usually just negligentThe existence of duty is necessary for legal liabilityPolicies/Factors in determining duty (articulated in Tarasoff case):Foresee ability of harm/dangerSeriousness of the harmCloseness between the defendants conduct and the injury producedMoral blameworthiness of the defendants conductPolicy of preventing future harmBurden on and consequences to the defendant and the community should a duty be imposedCost, availability, and prevalence of insurance, if anyMullins v. Pine Manor College (a college must use reasonable care to prevent foreseeable criminal attacks on campus) FamousCase:

What is the nature of the student/university relationship?8The Duty EraMid-1980s 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-80s

Courts still reluctant to impose liability on colleges in alcohol-related cases

But a shift has occurred It is a time of transitionJudges applying more traditional negligence dutyUniversities 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 parentisUniversity responsibility for student injury is limited but on the riseRecent 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 careThe Duty Era has ended almost all aspects of college insularity except with respect to alcoholContinued search for balance between university authority, student freedom, & shared responsibility

9University as FacilitatorMid-1980s 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 ageDescriptive, predictive, practical, theoretical, liminal, interdisciplinaryA tool of communication between the university and legal reality

A facilitator is:A guide who provides support, information, interaction, and control as necessary and appropriateSomewhere 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 responsibilityAware of risks, and adapts and varies the level and nature of involvementLike a fiduciary and can be in a position of trust, but knows it is not always necessary or appropriateWhen in the business role, does not simply give the consumers what they wantSometimes a bystander but my choice in order to facilitate student developmentCreative and practical, not stifling and reactiveNot an insurer of student safety, but learns a great deal from modern risk management

Duty is ambiguous but readily adaptable in the facilitator modelThe facilitator model is a synthesis of contract and tort law: law as a positive tool; empoweringA 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

10Works CitedBaldwin, 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.

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