Colleges and the Law After Virginia Tech
As a professor of law and higher education, I have been asked what seems like a thousand times whether Virginia Tech will be liable for the massacre there on April 16 — Bloody Monday, as many people now call it. That is the wrong question. No one knows the answer to that question right now, and what occurred that day could have happened on almost any of our nation’s college campuses.
The right question is, Will higher education in general be called to account legally for such events? The answer is yes, and more frequently. While we may ultimately not be held liable more frequently, we will now have to go to court, the legislatures, and Congress and explain why we did what we did — or did not do — more consistently and probingly than ever before.
What happened at Virginia Tech will change higher-education law significantly and permanently, much as the shootings at Kent State did nearly 40 years ago. Mishandling of the Kent State crisis brought heavy criticism of higher education, and a culture of rules, procedures, and policies arose to replace old patterns of using force and violence to manage conflicts. Kent State also ushered in a new era of accountability for colleges; the Scranton report on campus violence criticized administrators’ decision making in strident terms.
Bloody Monday, for its part, will most likely accelerate a continuing trend: the application of general principles of business-liability law to colleges. Four decades ago, it would have been unthinkable to hold higher-education institutions legally accountable as businesses. Higher education enjoyed the privileges of the holy trinity of the industrial era — family, church and charity, and government — all of which possessed broad immunities from legal scrutiny. The law was protective of higher education; accountability was for businesses, not colleges.
Moreover, responsibility for preventing crime was historically not considered a private function at all, especially for colleges; it was a prerogative of the government, jealously guarded. The crime waves of the 60s, which utterly overwhelmed police and governmental resources, however, began to change that. The police became responsible for crime prevention under only limited circumstances, and businesses were charged with new responsibilities to prevent foreseeable danger from crime. Simply put, there was too much crime for the government to handle alone. Still, few people in higher education believed that those demands would ever apply to campuses. They were wrong.
Despite the rise in crime in society at large, college security forces were typically charged with the protection of property as their principal mission up through the 1970s. Campus security, for example, protected campus buildings from intruders, burglars, and vandals, and ejected vagrants and trespassers. There was a false sense that college was safer than, say, a city or town of equivalent population density.
But in 1983, Mullins v. Pine Manor College established for the first time that campuses also have duties to use reasonable care to protect not only property but also students and other people from foreseeable danger. In Mullins, a student who was raped by an unidentified assailant sued a college and one of its senior administrators. The court ruled against Pine Manor, finding that the college owed the student a legal duty to use reasonable care to prevent foreseeable dangers on the campus.
That landmark ruling quickly spread throughout the United States, and Mullins became the bedrock law governing modern campus security. It also was one of many decisions that signaled the end of an era of legal insularity and protectionism based on academe’s status. It represented a major step in the mainstreaming of higher-education law under principles of general business-liability law.
Although many colleges had been operating for centuries, courts had begun for the first time to recognize that higher education was essentially a business — and they began treating colleges like new commercial enterprises. Tort law has often shown forbearance for nascent business, at least for a time. When railroads were new, for instance, the liability of railroad companies for personal injury was minimal. But as the industry matured, liability increased. Protection under the law often shifts to responsibility, and that evolution has occurred in the laws concerning safety on campuses.
Still, in the 1970s and 80s, courts did carve out some protection for colleges — based on social policy, not status — when students were willful risk takers who had voluntarily consumed alcohol or drugs, not innocent victims as in the Mullins case. For example, in Bradshaw v. Rawlings (1979) some under-age students drank alcohol at a college-sponsored picnic off campus and then had an automobile accident that left one of the students a quadriplegic. The family sued the college, but the U.S. Court of Appeals for the Third Circuit held that, in those circumstances, the student was owed no duty of care by the college. In the words of the court, “our beginning point is a recognition that a modern American college is not an insurer of the safety of its students.”
Another oft-cited case is Beach v. University of Utah (1986), in which an intoxicated student fell off a cliff during a university-sponsored field trip and sued the institution for damages. The Utah Supreme Court ruled in the institution’s favor to dismiss the case on the ground that the university had no duty to protect the voluntarily intoxicated student.
Why did the law choose to be protective of colleges in alcohol cases, but not in cases like Mullins that involved issues of general safety? Because in the 70s and early 80s it was uncommon to hold anyone other than the voluntary drinker liable for drinking-related harm. If bars, restaurants, and stores were not liable, and if office parties could soak in liquor, then why should colleges be responsible for alcohol risks among college students?
In short, the courts essentially said that a college would be liable only if it had assumed a responsibility to guard a student from his or her own bad choices when drinking. Because most student-life safety issues revolve around the use of alcohol, institutions quickly read that message to mean that the best legal policy was to stay as uninvolved in student life as possible, to avoid creating legal duties where none otherwise existed.
Yet in the last decade or so, numerous court decisions have demonstrated that the brief era of protectionism for colleges has ended. A sweeping decision from the Florida Supreme Court announced flatly in Nova Southeastern University, Inc. v. Gross (2000) that colleges will no longer be treated any differently from other businesses. In that case, the court reversed a lower-court ruling and held that an institution had a “duty to use reasonable care” in assigning students to certain locations as part of their studies and training, and would be held liable if that duty was breached. Moreover, alcohol-safety law has changed significantly since the 70s, and recent cases both in and outside higher education reflect a trend to impose more responsibility for alcohol-related risks.
Because of those cases and trends in the law of safety, colleges today will no longer find sanctuary in disengaging from dangerous off-campus behavior, refusing to consider safe transportation programs, or failing to reconsider the design and location of facilities despite recurring problems. They must, like other businesses, consider certain widely established legal principles and rules.
What does that mean in the wake of the events at Virginia Tech?
First, courts will require colleges to provide reasonably safe campus environments for students and other people by attending to foreseeable dangers — recognizing that many risks are not legally foreseeable and that reasonable care will not always prevent harm from occurring. In Gragg v. Wichita State University (1997), for example, a gang member shot and killed a woman who was attending a campus event, but the university was not held liable because it had provided reasonable security.
As people continue to analyze what transpired at Virginia Tech, colleges around the country should be asking themselves what is foreseeable, and what reasonable efforts to provide a safe environment look like. It may be helpful to distinguish situations where a general risk exists — for instance, a risk of a riot or a general risk of violence — from those where a specific person presents risks.
Although the national dialogue about the events at Virginia Tech tends to conflate those two issues, they are distinct. Courts may ask colleges to assess foreseeability in both types of situations separately. It could be foreseeable that a shooting may take place, but not foreseeable that a particular shooter will shoot — or vice versa, or neither. What is foreseeable in turn dictates what is reasonable. It might be foolish to put an entire college on lockdown because one highly dangerous person lives on an otherwise crime-free campus; perhaps the university should instead focus on that one student.
Second, general campus rules may apply to both common areas and residential facilities, but what is foreseeable and reasonable will probably differ in the two environments. Although the law sees a seamless web of safety between the common areas and residential facilities, in reality that web usually is not perfectly seamless. Campus-violence issues often have residential and nonresidential dimensions, and the law pushes colleges to seek consistent and comprehensive strategies for managing safety risks. Dormitory safety policies must work in tandem with regulations of open areas on a campus. Without such coordination, a dormitory risk could mature into a broader campus issue, and a college could fail to deal with it with reasonable care.
For example, whereas colleges usually rely primarily on campus security to protect common spaces, residential staff members often assume major roles in creating safe living environments. Those residential staff members are often students, very few of whom are trained to deal with security or mental-health issues. They are also often conflicted in their roles as rule enforcers, on the one hand, and peers of their fellow students, on the other.
Most important, dangerous people rarely show all of their symptoms to just one department or group on campus. A professor may see a problem in an essay, the campus police may endure belligerent statements, a resident assistant may notice the student is a loner, the counseling center may notice that the student fails to appear for a follow-up visit. Acting independently, no department is likely to solve the problem. In short, colleges must recognize that managing an educational environment is a team effort, calling for collaboration and multilateral solutions.
Third, colleges may have to comply with the law of agency. A great deal of modern business law has its roots in that principle, which essentially states that what employees know is known to the business (or institution) — whether it is or is not — and that the business is assumed to gather and synthesize all such information in a reasonable and efficient way. In some situations, the business is even imputed to have virtually real-time cognition of various events.
American businesses often reach that goal. A prime example is hiring. Businesses now routinely perform background checks on all prospective employees, so that those with violent criminal histories are weeded out. Higher education, however, frequently operates in ways reminiscent of its feudal past: Our institutions were designed to preserve and protect knowledge, not students. By design they react slowly and deliberately, protecting longstanding prerogatives from intrusion and change. (Think tenure.)
In fact, the events at Virginia Tech have shed light on what may well be higher education’s biggest weakness under the law: We are businesses that operate with an organizational dynamic that resists nimble information sharing and quick adaptations. To avoid another tragedy, colleges should be evaluating how information is shared, evaluated, and acted upon, with an eye toward improving those processes.
Fourth, colleges may become legally responsible if they either create or enhance a risk, or if they take charge of a person or situation. Colleges intertwine with students in so many complex ways that it could be argued that they meet one of those tests in almost every situation. It may turn out in court — after developing a record and after motions — that a college did not have a duty, but it would be virtually impossible in most situations for even a seasoned lawyer to guarantee that there is no legal duty at the outset. Because of that, colleges often must act and assume as if duty were owed, even if it later turns out one was not owed.
For decades college lawyers have relied on “no duty” arguments as a first line of defense in litigation. Such arguments will still be made, and still succeed, in many cases, but if the trends in tort law continue, they will be less and less viable. The Restatement of Law Third, Torts, a reference work for lawyers issued by the American Law Institute, has recognized that point. Although not authoritative like a court decision, it is highly persuasive to courts. The restatement takes the position that duty is presumptively owed in all cases, and that it is essentially up to litigants to prove otherwise. Some courts may not follow that idea, but it does essentially reflect an accurate feature of today’s higher-education law.
Fifth, in some instances, college mental-health professionals may, according to the landmark decision in Tarasoff v. Regents of University of California (1976) — which most states follow in some form or another, by statute or case ruling — have duties to warn other people about their patients when those patients present a risk of serious violence. Those duties are usually limited to situations where a patient is in custodial inpatient control and has named or somehow identified a victim. In light of the events at Virginia Tech, almost all states will be likely to follow Tarasoff. Mental-health professionals will notice a change in the wind. For fear of violating privacy laws, they have sometimes refrained from sharing information. But, as Tarasoff pointed out, privacy ends where safety begins, so there will probably be more disclosure of patient information in some states than ever before.
Indeed, much confusion exists about the privacy of student information. One of the greatest, and potentially fatal, misunderstandings is that the Family Educational Rights and Privacy Act, or Ferpa, somehow prevents sharing information about a possibly dangerous student. Ferpa has alway had broad disclosure rules for health and safety. Congress did not pass it back in the 1970s to block colleges from creating safe campuses; Ferpa’s main purpose is to give students access rights to their official records and to ensure that colleges provide registrar services to protect the integrity of those records. The law recognizes that safety outweighs privacy at times.
Sixth, the events at Virginia Tech were suicide-related, and the messages are mixed when it comes to the laws governing liability for suicide in the college context. When suicidal people endanger others, colleges have the same responsibilities to prevent campus danger that they would have if no suicide risk had been present. But in situations where a student presents danger only to self, the law is far less clear.
Many people thought that Shin v. Massachusetts Institute of Technology (2005) might become the Mullins case of student suicide, establishing what legal responsibilities college officials have when dealing with suicidal students. In that case, the parents of a student who died, allegedly by her own hand, sued university administrators for not alerting them and taking more-aggressive action to stop the alleged suicide. But the case was settled out of court, and the opportunity for Massachusetts’s highest court to consider the issues evaporated. As student suicide becomes a more visible issue, however, courts may well ask colleges to intervene more aggressively and take greater responsibility for family notification, suicide detection, wellness programming, and the like.
Interestingly, the law puts more responsibility on institutions to identify people dangerous to others, but mental-health professionals generally are better able to identify individuals with a risk of suicide. There are effective and reasonable strategies to reduce third-party violence even if violent people are hard to identify. But there is a significant science-and-law debate regarding effective suicide interventions, even when we have a person who is known to have suicidal tendencies. Some science and health experts believe in mandating counseling, assessment, or withdrawal, while others vigorously oppose it. For their part, lawyers must consider safety issues in light of concerns that mandatory counseling or other interventions may conflict with disability laws, which prohibit various forms of discrimination based on a physical or mental disability.
At root, those issues have kept the law from creating a unified, consistent approach to suicide responsibility. The statements that we have responsibility to prevent suicide danger, and that we have little responsibility, are both true. That will continue to confuse the public and may force lawmakers to find some solutions. The obvious and easy solution is the wrong one: to reduce or eliminate populations of the mentally ill on campuses. We must guard vigilantly against such a backlash — especially in the wake of the Virginia Tech tragedy — and not undo the advancements in access brought about by modern disability laws.
In the final analysis, the changes in college-safety law have been essentially changes in accountability, a trend that will accelerate in light of Virginia Tech. Higher-education law is moving, steadily, to consolidate around paradigms of reasonableness and foreseeability — which focus much more on conduct, choices, and information — and away from the concept of colleges’ special status and their disengagement from students to avoid risk. A century ago, the great legal philosopher and historian Sir Henry Maine described that evolution from status to decision making as the basis for responsibility; he was way ahead of his time and has been proved right, right here in higher education. We once sought defense in our status. We must now contend with vindicating ourselves with our choices. Colleges will still win the vast majority of safety cases, but we must increasingly defend our decisions. Courts may have a soft spot for colleges, but the argument that colleges can do what they will and not have to justify themselves will fall on deaf ears.
The events at Virginia Tech also mark the final stages of a revolution in higher-education law and consciousness that began in the 1960s. Students have essentially fought for and won a college Magna Carta that establishes basic principles of fair and free education — including civil and contract rights, access rights, and safety rights — in a long cycle of martyrdom and change.
Indeed, the evolution in higher-education law is littered with martyrs. In Dixon v. Alabama State Board of Education (1961), six black students risked their futures for due process. After Alabama State punished them for leading antisegregation protests, the students — some of whom claimed they hadn’t even attended those protests — sued the institution. The court sided with the students, saying that the university should have given them the chance to defend themselves.
At Kent State, Jackson State, and South Carolina State Universities — where, in each case, law-enforcement officials turned guns on students — students paid in blood to win orderly campuses created by law, not force. A generation has suffered the ill effects of high-risk alcohol use — some dying — and that has changed legal attitudes regarding responsibility for alcohol-based risks.
Now, at Virginia Tech, a new generation of martyrs has arrived to illustrate the need for wellness in higher education, and undoubtedly their sacrifice will not be in vain. It is impossible for students to learn and thrive in an environment filled with substance abuse, sexual violence, and untreated mental- and physical-health issues. What happens to one, happens to all. Virginia Tech will remind us that a college is a unitary organism, and that it cannot afford to have any student who is seriously withdrawn and isolated or a total loner.
Higher education has been remarkably reactive and resistant in that long cycle of change, often seeking to deflect responsibility rather than embrace it. If we face a generation of oppositional, disaffected, dangerous, and distressed students, we are partly to blame. How can we ask students to take responsibility when we hide behind cases like Beach and Bradshaw, which are now not just out of step legally, but also plain wrong in light of our missions to educate students in a safe and healthy environment? We have played the role of King George too often. Do we want historians to look back on us and say that we fought our students and gave them rights reluctantly?
The signs are everywhere that higher education is beginning to fully embrace the notion of education based on mutual rights and responsibilities, opportunities, and accountability. So in the coming months and years, we should not ask whether Virginia Tech is, or is not, liable. Instead, we should ask what we can do to create a safer and healthier learning experience. The law is heading on a path to try to get us to internalize a sense of accountability, not develop a culture of avoidance of responsibility. Let us hope that Virginia Tech will be the battle of Yorktown, signaling an end to a long, and painful, revolution.
I was teaching my class in higher-education law as events unfolded on Bloody Monday. I immediately thought of Sandra Scheuer, an innocent victim in the Kent State killings, and how she, like students at Virginia Tech, came prepared to learn but instead became a martyr to the greater cause of the reformation of American higher education under law. As a teacher, I can only believe that there is meaning in these dark tragedies — that learners do not die in vain. We ultimately can repay their sacrifices only by embracing a culture of engagement and accountability.
Peter F. Lake is a professor of law at Stetson University College of Law and director of the Center for Excellence in Higher Education Law and Policy there.
http://chronicle.com Section: The Chronicle Review Volume 53, Issue 43, Page B6