CHOICE: A Decision-Making Strategy for University Lawyers and
Administrators
Nancy Tribbensee1
The rising presence of alcohol, drugs, and guns on campuses has increased the
threat of assault and other serious crime. Hate crimes and tragic incidents of violence at
schools across the country have fueled concerns about campus safety. These factors have
created an uncertain environment for university administrators.
A dangerous by-product of this environment and the attendant litigation against
universities is the temptation to sacrifice elements of our academic mission in favor of
avoiding liability and lawsuits. By distorting administrative priorities in favor of risk
avoidance, universities may miss opportunities to provide students with experiences for
non-traditional learning. On a positive note, these events also create an opportunity for
administrators and their lawyers to work together to promote a safe learning environment
without sacrificing either safety or valuable learning experiences.
In their recent book, The Rights and Responsibilities of the Modern University2,
authors Robert Bickel and Peter Lake trace the history of law and policy relating to
liability for campus safety. They advocate a model of a “facilitator university,” in which
students and institutions actively manage risk and share responsibility for campus safety.
Bickel and Lake contemplate an active role for university administrators, not
merely a defensive or reactive one. They describe the facilitator as “a guide who
provides as much support, information, interaction, and control as is reasonably necessary
and appropriate in the situation.”3 The facilitator paradigm encourages a relationship
between administrators and their lawyers that empowers administrators to do their jobs
and assumes that “an unreasonably unsafe learning environment is not an appropriate
1
Nancy Tribbensee is Deputy General Counsel at Arizona State University, where she has had the privilege
of working with many excellent student affairs administrators who have shown great patience and
professionalism in her training.
2
3
Robert D. Bickel and Peter F. Lake, The Rights and Responsibilities of the Modern University, 1999.
Id. at 193.
1
learning environment.”4 The goal of this paper is to propose a strategy for collaborative
decision-making designed to assist in evaluating what is “reasonably necessary and
appropriate” in an individual situation, to promote an environment suitable for learning.
Given that we cannot eliminate the possibility of liability, we must then be
prepared to make difficult choices. Sometimes we have the luxury of time to reflect on
policy changes. Other times we feel pressure to respond immediately, and without the
benefit of all of the facts, to an emergent situation. Often we are forced to select among
alternatives that each includes some risk.
Following their synthesis of decisions involving injuries on campus, Bickel and
Lake identify seven factors courts rely upon in determining whether to hold colleges and
universities responsible for student injuries. These factors are:
(1) foreseeabilty of harm;
(2) nature of the risk;
(3) closeness of the connection between the college’s act or omission and student
injury;
(4) moral blame and responsibility;
(5) the social policy of preventing future harm (whether finding duty will tend to
prevent future harm);
(6) the burden on the university and the larger community if duty is recognized;
and
(7) the availability of insurance.5
Courts use these concepts to evaluate potential liability after an injury or serious
harm has occurred. University administrators need to use this information to develop a
method for affirmative decision-making, to compare possible course of actions and to
inform policy considerations well before injuries occur.
Administrators and their counsel need to develop strategies for effective and
efficient decision-making, with the mission of the institution in mind, to implement the
vision of the university as facilitator. To this end, I suggest that the following six
4
5
Id. at ix.
Id. at 202.
2
elements, represented by the acronym “CHOICE,” be included in any decision-making
strategy:
Communication regarding the mission or goal to be achieved;
History of similar policy and legal decisions;
Options or alternative ways to achieve the articulated goal;
Information gathering;
Consultation with interested parties;
Evaluation of results.
Thousands of decisions are made each day that don’t engage these steps in any
linear way. Some decisions, however, present a sufficient level of risk or concern and so
merit the level of scrutiny supported by this analysis. In some cases, the elements will
form feedback loops: for example, consultation may provide information that suggests
new options that require additional consultation. Difficult decisions include those
concerning incidents of hate speech, supervision of fraternity events, policies regarding
minors living in residence halls, security threats to campus information systems,
persistent or troubling student conduct, suicide, property maintenance and lighting,
student travel, and crowd control at university functions.
The purpose of the approach is to promote reasonable and appropriate university
goals while engaging all participants in an ongoing process of managing risk. The only
value of the acronym is to serve as a reminder that we are rarely confronted with a
decision that has a single clear answer. We are more likely to be confronted with
numerous choices, each of which require balancing interests and concerns and each of
which need to be evaluated in a larger context. In the unfortunate event of a student
injury, we can also use the elements of the CHOICE model to establish and evaluate our
efforts to exercise reasonable care to manage risk.
Communication regarding the mission or goal to be achieved
In today’s litigious climate, a cynical administrator contemplating an action or
reaction to an event, may be tempted to begin by asking: “How is this going to get me
into trouble?” Before the focus shifts entirely to risk management, however, the
administrator should be encouraged first to identify his or her goal. Ideally, the goal
3
would be expressed in positive terms, and would relate to the mission of the
administrative unit and the institution. In most cases, identification of academic and
student development goals will be second nature to administrators. Sometimes
consciously and sometimes implicitly, the administrator will have in mind both an
immediate objective as well as how this decision will relate to larger programmatic goals.
Identifying a goal becomes more difficult, and more important, if internal goals have
recently changed, are under review, or conflict with the goals of other interested parties.
The next step, and one that may sometimes be overlooked, is to communicate
these goals (including any perceived uncertainties or conflicts) to legal counsel and other
relevant players in the decision making process. Sometimes, in the process of
articulating a goal to another party, the goal itself can be refined, questioned or clarified.
An appreciation of context and purpose is necessary to the development of an informed
and relevant legal opinion. An administrator seeking legal advice may mistakenly assume
that the lawyer already understands the goal or worse, may assume that such an
understanding is not relevant to the process. Similarly, lawyers may incorrectly assume
that administrators are unwilling to accept even a modicum of risk, and may offer advice
that is unnecessarily conservative. The appropriate time for this communication is when
decisions are being considered and made; it can’t wait until after an injury or other
unintended consequence has occurred.
The point can be illustrated by comparing the two following inquiries from an
administrator to a lawyer:
1. We are considering a proposal to move all fraternity housing off campus. Do
you see any problems?
2. We would like to fundamentally change the relationship between the
university and local fraternities. We want to promote greater self-governance
while at the same time strictly enforce existing alcohol and hazing policies. One
component of this change involves eliminating on-campus fraternity housing.
What legal concerns should we take into consideration?
The second scenario acknowledges the importance of the context in which the
decision is being made and conveys an appreciation of the risk involved. Administrators
who force their lawyers to analyze the question in context will encourage lawyers to
4
provide more usable information. Once the context is clear, the role of the lawyer shifts
from one of blessing or thwarting the proposed decision, to that of a collaborator in
developing and analyzing options. The burden here is on both lawyers and
administrators. Lawyers need to ask questions to elicit necessary information and
administrators need to be sure their priorities are understood.
Policy statements are an important mechanism for the identification and
communication of university goals. These statements can guide university action, can
provide information to the campus community and can play a pivotal role in litigation.
At one time, universities reviewed policy statements in a negative light: that is, to be sure
that they were not creating unnecessary duties to students. An alternative perspective,
and one more aligned with the facilitator model is to review policies periodically to
confirm that they accurately reflect realistic university goals.
An understanding and appreciation of the relationship between the university’s
underlying goals and the circumstances involved in the plaintiff’s injury can influence the
outcome of litigation. In Bloss v. University of Minnesota Board of Regents,6 a student
sued the university for injuries she sustained when she was assaulted by a taxi cab driver
during her participation in a university-sponsored study abroad program. Students in the
program lived with host families in Mexico and had to arrange their own transportation
between the host’s home and the educational center and for independent excursions. The
plaintiff was raped by a taxi driver on her way from the host family’s home to a meeting
with other students. She sued the university, alleging that it was negligent in its failure to
secure housing closer to campus, that it should have provided transportation to and from
campus, that it failed to warn her adequately against the risk and that it failed to protect
her from foreseeable harm. The university denied that it was negligent and argued that it
was immune from suit under a state law that protects the state from suits for performing
or failure to perform a discretionary duty.
The Bloss court did not begin with any presumption of liability on the part of the
university, despite the serious injuries suffered by the student:
The litigation appears to be premised on a belief that the University is the
guarantor of the student’s safety. Unfortunately, this is neither physically
6
590 N.W.2d 661 (1999).
5
possible nor realistic. The student has suffered a grave injury, but the gravity
does not create liability.7
Essentially, the Bloss court evaluated the factors of duty, moral responsibility,
social policy and burden in the context of the articulated goals of the study abroad
program. The program sought to provide a cultural immersion experience in Mexico.
Students attended mandatory orientation sessions at which they received oral and written
warnings regarding personal safety. The court reviewed evidence of the university’s
efforts to provide relevant information to students regarding safety as well as the purpose
of the immersion program. It concluded that “to rebalance the extent of the warnings
[issued to students] would represent judicial interference with executive policy-making
and affect the program’s design, a University decision protected by statutory immunity.”8
Reasonable and well-articulated program goals contributed to the court arriving at an
outcome favorable to the university.
Policy statements that articulate the most admirable goals may, of course,
present a problem in litigation if university action does not appear to conform to them. In
Furek v. University of Delaware,9 a student injured by fraternity hazing alleged university
liability for negligent failure to supervise and control the fraternity and its members.
During a “Hell Night” pledging ritual, students were paddled, forced to eat from a toilet,
and covered with food.10 One of the fraternity members poured oven cleaner over the
plaintiff, resulting in severe chemical burns.
The Delaware Supreme Court considered the university’s anti-hazing policy as
well as public statements made by the Dean of Students in response to previous hazing
incidents to find that the university had assumed a duty of care to protect students from
hazing. The court did not argue that the university had to guarantee student safety, but it
did find a duty to supervise potentially dangerous student activities. The court evaluated
this obligation in terms of the university’s mission and concluded “university supervision
of potentially dangerous student activities is not fundamentally at odds with the nature of
7
Id. at 666.
Id. at 666.
9
594 A.2d 506 (1991).
10
Id. at 511.
8
6
the parties’ relationship, particularly if such supervision advances the health and safety of
at least some students.”11
History of similar policy and legal decisions
A valuable source of guidance concerning a pending decision will be information
about what the university and other schools have done in similar situations. Mining
institutional memory, contacting colleagues at other institutions, and taking advantage of
professional listservs may provide information about potential risks and benefits. This
process may also reveal alternative approaches to consider.
Risks on campus arise from programmatic decisions as well as individual ones.
Student affairs and academic administrators work to create new opportunities for
students, through student organizations, field trips, internships, volunteerism, and creative
housing arrangements. Each new program is designed to foster student independence
and development and each program introduces new risks to manage for the students who
participate. Evaluating program changes in their historical context, by asking what we
used to do and why we are changing, can identify potential risks and solutions.
Changes in the student body also indirectly account for increased risks on
campus. More minors attend classes and live in campus housing. We are also seeing
more serious mental illness as community resources disappear. As the perception of risk
and danger grows, the discussions regarding the potential for university liability become
more common. As university administrators, we must make an informed choice about
the role of potential liability in decisions regarding campus life without eliminating or
overshadowing our goals.
An understanding of similar events can be especially useful in evaluating the need
for additional security. In addition to establishing the need for additional police and
security personnel, past experience may encourage institutions to require restrictions on
admission (e.g., prohibit parties that are open to the public or limit the number of
attendees), require bracelets to identify students of legal drinking age, install metal
detectors at entrances or surveillance cameras in parking garages.
11
Id. at 518.
7
A review of history may also help to put the problem in perspective. Following
media reports of school shootings, many schools, parents and students believed that the
threat of being shot at school had skyrocketed. State and national statistics, however,
reflect more school shooting deaths in 1993 than in any year since.12 Information may
help to refine the problem to be identified. Certainly many people believe the risk of
elementary and secondary school shootings has increased dramatically and this
perception is important to address. The statistics do not suggest that we have a problem
with increased school shootings, however. We may instead want to identify and address
problems students are more likely to confront.
Another area in which historical perspective may be instructive is in the area of
alcohol use and under-aged drinking. Institutions and researchers have questioned media
claims that more college students are drinking, and that students who drink are drinking
more. No one is questioning that alcohol plays a role in many cases of catastrophic injury
on campus. Historical information about actual use patterns may, however, be necessary
to assist administrators to develop effective interventions.
If resources are assigned based on a mistaken belief about shootings at school, or
student alcohol use, we will not adequately address perceived problems. Moreover, may
miss the opportunity to address very real and dangerous problems within our reach.
An understanding of judicial responses to similar cases can also provide useful
information for administrators. Information about recent cases will be helpful, however,
only as a guide. Legal principles that fail to resonate with administrative principles are
unlikely to be accepted or internalized. For example, “no duty” cases that suggested that
universities could escape liability by not encouraging any student expectations and by not
assuming a duty to students offered little to assist administrators. Advice about how not
to relate to students is antithetical to most student affairs administrators.
Two recent decisions illustrate the transition from findings of “no duty” for
universities to protect students to reliance on traditional legal arguments to find such
duties. Gross v. Family Services13 and Knoll V. University of Nebraska14 each involved a
12
National Center for Education Statistics.
716 So.2d 337 (1998).
14
258 Neb. 1, 601 N.W.2nd 757 (1999).
13
8
student who was injured off campus. In each case, the trial court agreed with the
university that it did not have a duty to protect the student. In each case, the student
appealed and the appellate court found that the university did owe a duty to the student.
Both cases were sent back to the trial courts for determination as to whether the
university’s duty was breached.
In Gross, a doctoral student was criminally assaulted while leaving the site of her
off-campus internship. Internships are a mandatory part of the university’s psychology
doctoral program and students are assigned to off-campus internship sites from a list
complied by the university. One evening, the student was abducted from the internship
parking lot, robbed and sexually assaulted. In addition to suing the owner of the parking
lot, the student sued the university, alleging negligence in assigning her to a facility it
knew to be unreasonably dangerous. The university was aware of criminal incidents in or
near the parking lot prior to the student’s assignment to the internship.15
The trial court granted the university’s motion for summary judgement on the
basis that the university did not owe any duty to the student because it did not own or
control the premises and because the harm was inflicted by a third party. In reversing
this decision, the court of appeals found that the university owed a duty to the student:
“A student can certainly be said to be within the foreseeable zone of known risks
engendered by the university when assigning such student to one of its mandatory and
approved internship programs.”16 The case was remanded back to the trial court to
determine whether the university adequately discharged that duty.
In Knoll, a freshman student suffered serious injuries in a hazing incident that
began on university property and concluded in off-campus fraternity housing. The student
was abducted from a university building, handcuffed to a fraternity member, and
transported to the fraternity house. At the house, he was handcuffed to a radiator and
forced to drink enough beer and shots of brandy and whiskey to render him severely
intoxicated. When he became sick, he was moved to a third floor restroom, where he was
handcuffed to a toilet pipe. He managed to free himself from the handcuffs and climb out
15
16
716 So.2d at 338.
Id. at 339.
9
of the third floor window. He fell trying to slide down a drainpipe and was seriously
injured.
In the trial court, the university argued that it could not be liable because it did not
owe any duty to this student to prevent the injuries he sustained at the off-campus
fraternity house. The university argued that the acts that occurred on its campus were not
criminal (but were merely “horseplay”) and that the student had superior knowledge of
the dangers of hazing. The trail court agreed and granted summary judgement for the
university on the basis of its finding that the university had “no duty.”
The appellate court reversed this finding and found that the university owed a
duty to the student to take reasonable steps to protect against foreseeable acts of hazing.
It sent the case back to the trail court to determine whether, given the existence of this
duty, the university breached its duty and if so, whether the breach was the proximate
cause of the student’s injury.
This case has been the source of much discussion across college campuses. Some
have seen the decision as very troubling, because it reflects the trend in recent decisions
to hold universities liable for student injuries. (Of particular concern in these discussions
is that the injuries in this case occurred in private, off-campus housing.) In this case, the
court focused on the university’s knowledge of pledge events involving abduction and of
dangers inherent in fraternity hazing, the university’s knowledge of prior criminal
conduct by members of the fraternity involved, and the university’s failure to enforce
prohibitions against hazing, alcohol consumption, and physically abusive behavior.
The Knoll court applied landowner liability law to the relationship between a
university and its students. It found that the knowledge of the risk of injury from
fraternity hazing defined the duty of care owed by the university to its students. The
appelate court did not decide whether the university met this duty of care or if the duty
was breached, whether the breach was the proximate cause of the harm. The appellate
court referred the case back to the trial court for this determination.
Knoll can serve to remind us that universities must now focus on building
relationships with students in which we share responsibility for safe campus
environments. We cannot argue that students assume the risk of serious injury by joining
fraternities. We cannot ignore past hazing incidents or allow a permissive environment in
10
which future hazing will be tolerated. We need to “use reasonable care to prevent
foreseeable risks.”17
One of our best tools is education. Administrators can educate themselves,
students and lawyers about options and associated risks. In developing strategies to
manage risks, we can reasonable expect each participating party to bear some
responsibility for campus safety.
Advice that is limited to cautionary notes based on the most recently litigated case
can easily create concern over past practices but may not offer much to inform future
decision-making. No student affairs administrator has chosen this profession to look for
ways to avoid creating student expectations or to avoid assuming a duty to students. This
is why student affairs administrators often respond with a puzzled expression when
receiving well-intentioned but ultimately useless (or unusable) advice from their lawyers.
Options or alternative ways to achieve the articulated goal
Once we have identified a positive goal (e.g., “to create a new learning
opportunity” rather than “to avoid liability”), and reviewed related past experiences, the
next step is to identify practical alternatives to approach or achieve the desired result. For
each alternative, we need to further identify the associated benefits and risks. In addition
to costs of effort and money, we may find in some cases that the approach necessary to
satisfactorily reduce risk will eliminate the potential benefit.
Bickel and Lake18 use the phrase “bystander university” to refer to the era in
which universities successfully defended suits by arguing that they owed no duty to
students. One by-product of this era is that administrators and their lawyers began to
reject good proposals that threatened to introduce new duties. For example, faculty
advisors to student groups began to suggest that they not attend group activities to avoid
creating a connection between the activity and the university in the event that something
went wrong. This negative strategy fails to account for the positive influence an advisor
may be able to exert, including the possibility that harm may be avoided by virtue of the
mere presence of a responsible adult.
17
18
Bickel and Lake at 203.
Bickel and Lake at 49.
11
In light of these recent decisions, we should not approach issues of risk
management by asking whether we have a duty. Instead student affairs administrators
and those who advise them can evaluate potential choices for action by asking what level
of care would be appropriate if one were to assume that a duty exists. We can analyze a
number of different types of risk using this formula, including risks of a student’s own
self-destructive behavior, risks students pose to one another, risks of third party criminal
action. For each type of risk, we will need a strategy for decision-making when we are
trying to develop a general policy as well as for when we are dealing with a very specific
perceived threat.
Attorneys may argue about the direction courts may take in future decisions.
Whatever the direction, administrators may wish to assume that a court would find a duty
and act reasonably in light of that imagined duty.19 I suggest this approach for a number
of reasons. First, recent decisions suggest that universities will no longer be able to
successfully argue against a duty. Second, many cases involving injured students will
never see litigation, and the posture necessary to lay the foundation for a “no duty”
defense is tremendously unappealing to all university administrators. No one wants to
respond to a grieving parent by denying the existence of a duty. Finally, and perhaps
most importantly, most university decisions do not result in harm. We need a decisionmaking strategy that conforms to the mindset of the decision-makers. By asking how we
can exercise reasonable care, we can consider the decision from the appropriate vantage
point: that of administrators rather than that of potential litigants. If some harm occurs,
we may be sued, but we should believe, in good faith, that we took reasonable steps to
manage the risk of harm.
Developing reasonable options takes time and thought. One danger in reacting
too quickly or too glibly to concerns about campus violence is the potential for the
adoption of expedient but ineffective solutions that play well politically. Often these
reactions take the form of “zero-tolerance” policies. Administrators need the ability to
act quickly and meaningfully to promote safety on campus, but solutions that remove
19
Here I do not mean to encourage far reaching policy statements that articulate broad duties to students.
The “imagined” or presumed duty must be a reasonable one and one the institution is prepared to honor.
12
administrative discretion will often create unnecessary problems without producing the
desired benefit.
Information gathering
Administrators and their lawyers can work together to gather additional
information that may be relevant to a pending decision. For example, it may be useful to
begin with background information about current university policies and existing laws or
regulations. This may lead to a related decision about whether a written agreement needs
to be in place or a may inspire a review of existing agreements.
Information about the availability of insurance and indemnification may allow
administrators to consider shifting risks, where appropriate. One question will be the
extent to which a proposed event or activity is covered by the institution’s insurance.
Another consideration is whether another party should insure the event. In general, it
makes sense to allocate risk to the parties in the best position to control the risk. In some
cases, this will mean shifting risk by requiring insurance or agreements for
indemnification.
Sometimes the inquiry will require administrators to discover what other events
may be happening at the same time as a proposed event. Is construction planned for the
same time members of the pubic will be entering campus to participate in an event? Are
high school students on a recruiting trip planning an overnight stay in a residence hall at a
time when university residents are planning an annual party? Are we sending a study
abroad program into a region likely to experience political unrest or terrorist activity?
Other decisions may require information relating to costs and expenditures. For
example, one option for improving campus safety may be to initiate a service to escort
students back to residence halls after late nights at the library. Related costs may include
payments to student escorts, lighting enhancements, radios and other communication
equipment, and carts or other vehicles. Administrators may also need additional
information regarding regulations or policies surrounding the procurement of necessary
personnel, goods and services for the program.
Despite the reality that many administrators feel pressure to act before they are
able to identify and collect relevant facts, adequate information is essential to meaningful
13
decision-making. When immediate action appears necessary, we may want to determine
whether a limited initial response will suffice until more facts can be gathered. For
example, we may not be able to answer every question that arises immediately after an
assault is reported on campus, but we may be able to describe the investigative process
and defer a substantive response until we have more information. This avoids the
problems associated with speculation and premature conclusions based only on partial
facts. It may also serve to involve interested parties in collecting information or
proposing a resolution.
Consultation with interested parties
The information gathering process will involve consultation with other university
parties. They may include persons with experience in risk management, public safety
and security, student development, and public health. In addition, past practice or public
relations concerns may indicate that it is appropriate to engage community members,
university neighbors or even national groups in some significant decisions. University
decisions are difficult for many reasons, not the least of which is that so many people can
be impacted by a single decision. Decentralized administration and the multiple levels of
campus life create risks that a decision that seems reasonable or harmless can have
potentially disastrous consequences when combined with other unrelated factors. Early
opportunities for input may avoid later conflict.
A useful risk management strategy is to develop opportunities for diverse units to
meet on a regular basis. Arizona State University, for example, has a Student Assistance
Coordinating Committee that is scheduled to meet once each month. The committee
includes representatives from counseling services, student health, disability resources,
student conduct, residential life, the office of general counsel, and the department of
public safety. The primary purpose of this committee is to coordinate the university’s
response for students who may be experiencing (or creating) problems that involve
multiple administrative areas. The committee has been a tremendous success, as it allows
administrators to strategize and coordinate appropriate and consistent responses, while
minimizing opportunities for students to play one unit against another. In months when
we have no student matter to discuss, we may cancel the meeting or we may discuss
14
policies that relate to recent cases. One policy currently under discussion involves the
appropriate institutional response to students with eating disorders or psychological
conditions who pose a threat to themselves and who are not compliant with treatment
recommendations. Another ongoing issue involves minor students who live in residential
housing and the need to streamline the process for obtaining parental consent in the event
psychological evaluation and treatment is indicated.
All participants view this committee as a valuable resource. Real work gets done
as a result of these consultations. An added benefit is that the relationships among the
members are enhanced, opening lines of communication on more routine issues.
Evaluation of results
As we work together to respond to the myriad demands of campus life, we should
look for opportunities to reflect on the effectiveness of our decision making. Could
relationships be improved? Are administrators getting timely and useful advice that
assists them in making difficult decisions? Are we taking the appropriate steps to
manage the risks inherent in college life? We must continue to empower students and
administrators to create an environment appropriate to learning. Through effective
communication, an understanding of history, development of options, access to relevant
information, and meaningful consultation we can respond to new situations appropriately
and in ways that retain and enhance core academic values. Through an ongoing process
of evaluation we can refine our approach to new issues, balance the needs and strengths
of students and enhance the educational services we provide.
15