Page 10 - College Planning & Management, July/August 2018

Legally Speaking INSIGHT ON THE ISSUES
College Student Safety Law
An update on “special relationships” and shared responsibility.
BY PETER F. LAKE
SPRING 2018 will be remembered as watershed moment in college student safety law. Major public scandals
regarding safety in the college environment— Penn State, Michigan State, Baylor, etc.—may have influenced the top courts in Massachu- setts and California to hand down landmark college safety law decisions in Nguyen v.
Massachusetts Institute of Technology (Nguyen) and Regents of the University of California v. Superior Court of Los Angeles County (Rosen). These two cases, decided within weeks of each other, expand student safety rights on campus in those states—and ultimately may influence other states to follow their lead.
A Legal Duty of Care
a
Shared Responsibility
Today’s colleges can no longer be merely “bystanders” to college student safety. College life can be dangerous and difficult to manage for a student alone. Some students with severe mental health issues may need help. Students may have only limited abilities to protect themselves in class or residence halls from dangerous individuals, etc. Recognizing the evolution of the modern college/student rela- tionship, the California and Massachusetts high courts explicitly re- jected the idea of a college as a mere “bystander.” These courts chose to follow an evolving line of cases that I have previously referred to
as “facilitator” era cases that emphasize shared responsibility for student safety—and the need for reasonable safety efforts in some contexts. As the top courts in California and Massachusetts correctly observed, potential institutional legal accountability is neither insur- ing student safety nor recreating custodial care in the college setting. Students not only have a right to make choices for themselves but may also be held accountable for those choices. Emphasizing the need for shared responsibility, both courts engaged in extensive analysis of the factors that weigh upon the imposition of duty. Colleges will not be liable for every violent assault, or student suicide. However, institutions cannot ignore these risks entirely either.
These top courts resolved, at least in their jurisdictions, a long- standing paradox of responsibility in higher education. Institu- tions of higher education cannot attract college students with bold promises of a bright future at alma mater and then refuse to accept a fair share of responsibility to create a safe campus experience. These courts have accepted the obvious—higher learning must
be reasonably safe to be a successful enterprise, and safety often depends on mutual efforts of students and host institutions.
Major conceptual shifts in the law of college student safety
are rare. There will be many safety issues to resolve in future cases; perhaps the most difficult will ones will come when alcohol factors prominently as a cause of injury to a student. Yet in many ways colleges are already well ahead of the law, which is catching up to operational reality on campus. In a way, these high courts honored and recognized the best instincts of higher education in these recent cases—validating decades of efforts by institutions to improve the college experience. CPM
Peter F. Lake is professor of law, Charles A. Dana chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law in Gulfport, FL. Professor Lake can be reached at lake@law.stetson.edu.
In Rosen, a student was stabbed in a classroom at UCLA; the Nguyen case involved a student suicide at MIT. In both cases, the courts held that the college/student relationship itself is suffi- ciently “special” such that it may create a legal duty of care. These decisions carefully crafted the contours of that duty to protect institutions from unlimited liability, while stressing the need for shared institutional/student responsibility in some situations. Remarkably, these twin rulings took a step that no court had been willing to take—expanding the range of special relationships directly to the modern college student relationship itself. Until 2018 courts had regularly rejected that idea, often by contrasting the K–12 experience where students (as children) are in the custo- dial care of their schools. (College students are adults and are not subject to custodial constraints.) Courts at times have recognized that college students are potentially in special relationships with their host institutions—but for reasons other than being a college student. For example, a college has a responsibility to maintain
a dining facility the way a commercial restaurant must—in this context a college student is like a customer on a business premises, which is a special relationship. Until this year there was nothing special about being a college student for safety purposes. In fact, some courts cast colleges as mere “bystanders” (a descriptive term I coined in earlier writings) to student wellness and safety. Indeed, “bystander” cases seemed to hold the fact that college students
are adults against those students by suggesting that emancipation into adulthood implied complete responsibility for oneself, in all contexts—even ones where the college participated in creating a dangerous situation.
10 COLLEGE PLANNING & MANAGEMENT / JULY/AUGUST 2018
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