Transcript Link to Bickel and Lake Project PowerPoint presentation

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.
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
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.
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.
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
Sample case law: example of schoolmaster beating a child to death was convicted of
manslaughter not murder
In loco parentis
First appeared in higher education well after the Revolutionary War
Prior to
the 1960’s
“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
Gott v. 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
Dean Wormer
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…
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”
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…
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 offcampus 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
Three basic theories on which to proceed
In general, if someone has been injured physically by university
misconduct or omission, they look to the law of torts for a remedy
1. Intentional torts
Universities rarely
responsible
under these rules
2. Strict liability
3. Negligence – the major vehicle by which people sue universities
Four [virtually universal] Elements:
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”
1.
2.
3.
4.
5.
6.
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
7. 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?
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:
1. Should not return to in loco parentis
2. University responsibility for student injury is limited but on the rise
3. 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:
1. 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)
2. 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)
3. 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.
4. 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
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:
1. Hope (lack of hope breeds physical, spiritual, and emotional danger)
2. Responsibility (“consumers” feel they pay top dollar for a less valuable commodity, i.e.
education)
3. Appreciation of differences (zero-sum relationship facilitated disconnectedness)
4. Efficacy (need to believe they can make a difference)
The facilitator model is:
1. designed to offer a comprehensive, adaptable legal and practical model for
university/student affairs.
2. 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
3. Descriptive, predictive, practical, theoretical, liminal, interdisciplinary
4. A tool of communication between the university and legal reality
A facilitator is:
1. A guide who provides support, information, interaction, and control as necessary and
appropriate
2. Somewhere between a dominating parent and a pure stranger or bystander and
understands that family roles may be appropriate for some
3. Someone who does not choose, but allows the students to choose for themselves and
shoulder significant responsibility
4. Aware of risks, and adapts and varies the level and nature of involvement
5. Like a fiduciary and can be in a position of trust, but knows it is not always necessary or
appropriate
6. When in the business role, does not simply give the consumers what they want
7. Sometimes a bystander but my choice in order to facilitate student development
8. Creative and practical, not stifling and reactive
9. 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 i s gained
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.