Liability for Campus Violence1
21st Annual Conference on Law and Higher Education
Stetson University College of Law
February 11, 2000
Joel C. Epstein, Associate Director & Senior Attorney
The Higher Education Center for Alcohol and Other Drug Prevention
Education Development Center, Inc.
55 Chapel Street, Newton, MA 02458-1060
Phone: (800) 676-1730 Fax: (617) 928-1537
E-mail: jepstein@edc.org
Web: www.edc.org/hec/
The hottest questions for college and universities today regarding student life
and safety are student/alcohol issues.2 In 1989, a survey of college and university
presidents found that 67 percent rated alcohol abuse to be a "moderate" or “major”
problem on their campus.3 Since that survey, presidential concern about the problem
has climbed even higher.4 As Pennsylvania State University President Graham Spanier
1 Portions of this presentation draw heavily upon a forthcoming law review article (with Peter F. Lake) entitled,
“The Recent Evolution of Liability Rules and Policies Regarding College Student Alcohol Injuries: Reducing
Student Injury and Exposure to the Dangers and Disorders of High-Risk Alcohol Use Through Norms of Shared
Responsibility and Environmental Management.”
2
Kleiner, C., “Turning Off the Tap.” U.S. News & World Report (August 30, 1999).
3
Carnegie Foundation for the Advancement of Teaching. Campus Life: In Search of Community (Princeton, NJ:
Carnegie Foundation for the Advancement of Teaching, [1990] 1994).
4
See Presidents Leadership Group, Be Vocal, Be Visible, Be Visionary: Recommendations for College and
University Presidents on Alcohol and Other Drug Prevention. (Newton, MA: The Higher Education Center for
Alcohol and Other Drug Prevention, 1997). Also see The National Association of State University and Land Grant
Colleges (NASULGC) Fall 1999 ad campaign. www.nasulgc.org/bingedrink/
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Stetson Law and Higher Education Conference, February 2000
noted in an August 1999 address to the National Press Club,
A companion concern to academic integrity is the challenge of developing
character, conscience, citizenship, and social responsibility in our students.
In my view, this is one of the most fundamental problems facing higher
education today. No aspect of this challenge is greater for our young
adults than the excessive consumption of alcohol and the behaviors that
surround it.5
In recent years, the direct problems of high-risk drinking have made national
news with alarming frequency. The relatively rare student deaths, like those at
prestigious universities, such as MIT and LSU, caused by alcohol overdose, are a salient
primary risk.6 However, the high-risk drinking culture on many campuses causes and
facilitates many secondary risks. These include sexual assault and rape, increased risks
of physical and verbal assault by peers and others, higher rates of unwanted pregnancy
and STDs, property damage, nuisance and noise problems, campus disorder and even
civil unrest (see, e.g. recent riots at some institutions over loss of 'beer rights').7 Other
impacts include diminishment of academic programs through poor attendance, low
retention rates, and lower performance on other academic indicators. Moreover, a
5 Spanier, G.B., Remarks to the National Press Club, Washington, D.C. (August 26, 1999).
See “Universities to Get Tough on Campus Alcohol Use.” The Chicago Tribune (August 29, 1999); Chacon, R.,
“MIT Enacts Drinking Penalties.” The Boston Globe (February 5, 1998); Knox, R.A., “Binge Drinking Can Be
Curbed, Colleges Show.” The Boston Globe (October 5, 1997); Smith, L., and Matthews, J., “In Va., a Sobering
Lesson Doesn’t Sink In.” The Washington Post (December 7, 1997).
6
See “Interpersonal Violence and Alcohol and Other Drug Use,” Prevention Update (Newton, MA: The Higher
Education Center for Alcohol and Other Drug Prevention, 1998); Epstein, J., and Finn, P., “Preventing AlcoholRelated Problems on Campus: Vandalism.” (Bethesda, MD: The Higher Education Center for Alcohol and Other
Drug Prevention, August 1995); and “Sexual Assault and Alcohol and Other Drug Use, Prevention Update (Newton,
MA: The Higher Education Center for Alcohol and Other Drug Prevention, 1998). Also see Mio, L., “Police gas
students, others at parties near U. of Akron” The Plain Dealer (September 21, 1998); Curtin, D., “CU Regents
Extend Folsom Field Beer Ban.” The Denver Post (Sept. 11, 1998); and Nicklin, J.L., “Colleges Report Increases in
Arrests for Drug and Alcohol Violations.” The Chronicle of Higher Education (May 28, 1999).
7
Joel C. Epstein, “Liability for Campus Violence”
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Stetson Law and Higher Education Conference, February 2000
recent study funded by the Robert Wood Johnson Foundation shows disturbing
connections between high-risk drug and gun possession.8 The severity and intensity of
the problems on many campuses have now gained the attention of the civil justice
system. Historically, American courts were reluctant to intercede in college alcohol
culture. Indeed, the decisions of courts in previous decades may have facilitated,
indirectly, the patterns of high-risk drinking behavior we observe today by creating de
facto legal free space to drink unlawfully and with little consequence in college. Now, in
very recent times, courts have demonstrated that they will impose civil liability upon
colleges, fraternities, and individuals for physical injury caused to students in the
context of high-risk drinking. The tide has turned.
A Brief History of College Alcohol Culture and Law to the 1990’s
Traditionally, common law responded to injuries caused by alcohol
consumption/service with strong focused norms of personal accountability of the
drinker. Thus, the drinker – not the server of alcohol, facilitator of alcohol use, alcohol
vendor/manufacturer, college or Greek organization, inter alia – was considered the sole
proximate (or legal) cause of harm9 as a matter of law. While it was conceivable that
lawsuits against fellow students whose intoxication caused injury were possible, prior
to 1960 it was common for courts to completely bar recovery whenever a plaintiff
Miller, M., Hemenway, D., and Wechsler, H., “Guns at College.” 48 Journal of American College Health 7 (July
1999).
8
9
See Brigance v. Velvet Dove Restaurant, Inc., 725 P.2d 300, ___ (Okla. 1986): As that court stated:
At common law a tavern owner is not criminally liable for a third person's injuries that are caused by the acts of an
intoxicated patron. Such rule is principally based upon concepts of causation that, as a matter of law, it is not the
sale of liquor by the tavern owner, but the voluntary consumption by the intoxicated person, which is the proximate
cause of resulting injuries, so that the tavern owner is therefore not liable for negligence in selling the liquor.
Id. at
.
See also Snyder v. Viani, 110 Nev. 1339, 886 P.2d 610 (1994) (retaining traditional proximate cause rule).
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Stetson Law and Higher Education Conference, February 2000
engaged in unreasonable conduct (contributory negligence) or assumed a known risk
voluntarily.10 Because many students in injured in the context of high-risk alcohol
culture were (and are) often at some level participants in that culture, the viability of a
student's claim against a fellow student was limited.
By the 1970’s, alcohol rules based upon proximate causation of the drinker were
largely rejected: Jurisdictions passed dram shop or similar legislation and/or adopted
new rules of civil alcohol responsibility in case law.11 Certain common features
emerged in most, but not all, states.12 First, commercial vendors of alcohol for on
premises consumption would be held liable for serving alcohol to a visibly and/or
noticeably intoxicated patron if that service were the proximate cause of harm to a third
person.13 Second, commercial vendors of liquor for on premises consumption generally
became civilly responsible for knowingly and/or willfully serving minors.14 Third,
courts adopted rules of negligent entrustment that created civil liability for providing
certain chattels (especially vehicles) to intoxicated individuals.15 And fourth, courts
recognized the enhanced physical risks arising from alcohol use to patrons of premises
designed for on premises consumption and announced rules of landowner
responsibility for foreseeable dangers (including dangerous individuals and patterns of
10
See Butterfield v. Forrester, 11 East. 59, 103 Eng. Rep. 926 (1809) (contributory negligence is a complete bar);
Rickey v. Boden, 421 A.2d 530 (RI 1980) (finding that assumption of risk remains a complete bar to recovery even
after the adoption of comparative fault).
11
See Rappaport v. Nichols, 156 A.2d 1 (N.J. 1959); Brigance, supra note
at
.
12
Virginia, for example, has not enacted dram shop legislation. See Robinson v. Johnson, 1999 WL 58607 (Va. Cir.
Ct. 1999).
13
Brigance, supra at
. States are often reluctant to permit the drinker to sue for injuries. See Dobbs, D.B., &
Hayden, P.T., Torts & Compensation, Third Edition, 478 note 6 (West 1997).
14
Brigance, id.
15
See West American Insurance Co. v. Turner, 1990 WL 2322 (Ohio App. 1990); See also Leppke v. Segura, 632
P.2d 1057 (Colo. Ct. App. 1981) (liability for jump starting a drinker's car).
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Stetson Law and Higher Education Conference, February 2000
dangerous behavior) on and around such premises.16
Critically, the fall of norms of personal accountability was partial, not absolute.
Hence, for the most part, other situations involving unreasonable alcohol risk were not
subject to civil responsibility. A principal idea was that “social hosts” were not subject
to civil responsibility.17 Social host scenario, included private parties, fraternal
gatherings, office parties, and most college-aged drinking on campus or in fraternity or
dormitory housing, for example: again the drinker could be liable, but not the server,
facilitator, etc., in a social host context.
The emergence of social host immunity for irresponsible alcohol risk creation
was not indigenous to colleges only. Social host rules were a firm feature of the general
social environment, and to a large extent remain so even today.18 Nonetheless, this
development was particularly important in college and university law in the 1970s and
1980's, because other protective legal doctrines – such as in loco parentis and
governmental and charitable immunity19 – had fallen or eroded completely.20 This was
also a time when larger numbers of students were going to college, and alcohol, and
illicit drug issues were rising.
The courts that had granted significant new civil rights to college students, that
had sanctioned broad social host immunity in society at large, and that were aware of
16
Greco v. Sumner Tavern, Inc., 128 N.E. 2d 788 (Mass. 1955). Restatement, Torts 2d, '' 344 (1967).
17
See DOBBS, supra note ___ at 178.
18
See note ____ supra. There has however, been a slow but steady erosion of social host immunity. For example,
some jurisdictions have created rules that no longer categorical protect the office party or other work related alcohol
functions. See generally Erickson, J.R., & Hamilton, D., Liability of Commercial Vendors, Employees and Social
Hosts for Torts of the Intoxicated, 19 WAKE FOREST L. REV. 1013, (1983). Some courts have acknowledged social
host liability. See e.g. Hicking v. Botham v. Burke, 662 A.2d 297 (N. H. 1995). But see Cal. Civ. Code ' 1714(c)
(abolishing social host liability).
19
See Lake, P., The Rise of Duty and the Fall of In Loco Parentis and Other Protective Doctrines in Higher
Education Law, 64 MISSOURI L. REV. 1 (1999).
20
See id.
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Stetson Law and Higher Education Conference, February 2000
the surge of new students in college, protected colleges from liquor liability in the
1970's, 1980's, and even into the 1990's. Courts ruled regularly in this period that
colleges owed "no duty" to prevent alcohol related injuries to "adult" students.21 Even
into the 1990's courts stated that there was no general duty to students regarding
alcohol risks.22
Changes in Legal Approaches to College Alcohol Risks in the 1990's
While the history of no college legal responsibility for alcohol risks to students is long,
in very recent times several courts have begun to reject college alcohol risk immunity
and/or have signaled a potential willingness to do so in future cases. A major
transition in college alcohol law is underway. The shift is away from (1) pure norms of
the personal accountability of drinkers and (2) 'liability free' zones of unreasonable
alcohol behavior, towards notions of (3) shared responsibility for alcohol risks in the
college environment and (4) legal responsibility to create a more responsible alcohol
culture.
Perhaps the first signal of changing judicial attitudes occurred in the 1980's when
courts began imposing liability upon fraternities – usually the local chapter – for alcohol
risks.23 These cases constituted a shift away from notions of exclusive student personal
responsibility for high- risk drinking injuries: courts were beginning to reimagine
responsibility for alcohol risks in terms of shared responsibility. In this vein, courts in
21
See Lake, P., supra note 19, 64 MISSOURI L. REV. at 14-17. Baldwin v. Zoradi, 123 Cal. Rptr. 809 (1981);
Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir. 1979); Beach v. University of Utah, 726 P.2d 413 (Utah 1986); Rabel
v. Illinois Wesleyan Univ., 514 N.E. 2d 552 (Ill. Ap. Ct. 1987).
22
See e.g., Booker v. Lehigh University, 800 F. Supp. 234 (E.D. Pa. 1992).
See Curry, S.J., “Hazing and the “Rush” Toward Reform: Responses From Universities, Fraternities, State
Legislatures and the Courts.” 16 J.C. & U.L. 93 (1989); Bailey, C.M., “Tort Liability of College, University,
Fraternity, or Sorority for Injury or Death of Member or Prospective Member by Hazing or Initiation Activity.” 68
ALR 4th 228 (1987). Cases imposing liability upon fraternities have accelerated in the 1990's. See e.g., Delta Tau
Delta v. Johnson, 712 N.E. 2d 968 (Ind. 1999) (fraternity owes duty of care to protect against foreseeable sexual
assault).
23
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Stetson Law and Higher Education Conference, February 2000
the 1990's have become willing to increase the responsibility of colleges and universities
for high-risk alcohol behavior.24 In some recent cases, colleges and universities have
won cases involving injuries arising from or facilitated by high-risk drinking, but in
dicta courts have signaled willingness to impose liability in other situations.25 In other
case law, courts have considered alcohol issues in non-university contexts that
nonetheless have very clear implications for university litigation.26 In still other cases,
courts have reconceptualized alcohol risks scenarios in terms of premises responsibility
issues, e.g., duties to protect against foreseeability dangerous individuals and to
provide safe living conditions.27 Courts have shown willingness to break overtly with
tradition and to impose liability on colleges and university for alcohol risks.28
Thus, the 1990's have shown a demonstrable increase in judicial willingness to
expand the sphere of accountability for high-risk college drinking. As judicial
recognition of the current social problem increases, we anticipate increased
responsibility as more courts move from a personal accountability to a shared
responsibility model.29
24
For many, the seminal case is Furek v. Univ. of Delaware, 594 A.2d 506 (Del. 1991), holding that when a
university has actual or constructive knowledge of dangerous fraternity hazing activities and fails to exercise
reasonable care to prevent foreseeable student injury, that university may be liable. While not technically an alcohol
case per se, Furek involved a pattern of high-risk behavior – hazing – that was in fact associated with patterns of
high-risk drinking.
25
See e.g., Booker v. Lehigh University, supra; Lloyd v. Alpha Phi Alpha Fraternity and Cornell University, 1999
U.S. Dist. Lexis 906 (N.D. N.Y. 1999).
26
See Rust v. Reyer, 670 N.Y.S.2d 822 (1998) (alcohol infused house party creates liability when one facilitates
underage drinking (2nd D.C.A. House party statute).
27
See e.g., Morrison v. Kappa Alpha Psi Fraternity, 1999 La. App. Lexis 1345 (1999); Delta Tau Delta v. Johnson,
712 N.E. 2d 968 (Indiana July 12, 1999); See also Nichols v. Northeast Louisiana University, 729 So. 2d 733 (La.
1999).
28
See Furek supra, Coghlan v. Beta Theta Pi Fraternity, 1999 Idaho Lexis, 108 (8/30/99); Knoll v. University of
Nebraska, 258 Neb. 1 (Oct. 29, 1999).
29
This does not mean that some courts will not continue to promote strong personal accountability norms. See e.g.,
Rhodes v. Illinois Central Gulf R.R. (665 N.E. 2d 1260 (Ill. 1996)). (No duty owed by public transit to a drunk and
injured college student who wanders with his injuries onto a train platform.) Whereas some courts identify strong
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Stetson Law and Higher Education Conference, February 2000
Lessons Learned from Alcohol and Drug Prevention Research
Historically, colleges and universities have supported individually-focused
education and intervention strategies. This approach has been ideologically driven.30 In
the United States, alcoholism, problem drinking, and drug addiction are commonly
viewed in the United States as problems that arise out of human weakness. The
dangers of high-risk drinking and drug use is recognized, but those who develop
problems are thought either to have brought it on themselves or to have been unlucky
in their genetic inheritance. This view is consonant with a U.S. ideology that values
individualism and self-determination.31
Typical campus prevention efforts include general awareness programs during
freshman orientation, awareness weeks and other special events, and peer education
programs. Faculty at some colleges and universities have begun to incorporate
prevention-related lessons into their courses, a process known as "curriculum
infusion."32 All of these programs are based on the premise that drinking problems on
campus result from the ignorance of individual students about local, state, and federal
laws and the dangers of high-risk drinking. Evaluations of college-based educational
programs are rare, but work in other school-based settings suggests that, while these
personal accountability norms as conservative norms, antipathy to excessive alcohol use, especially by minors, is an
equally powerful conservative norm. Only the most extreme libertarian/liberal norms identify a "right" by minors to
drink in high-risk context: safer and perhaps stricter alcohol rules are compatible with and in fact facilitate basic
student rights on campus as well as facilitate an environment where personal accountability can flourish.
30
DeJong, W., and Langenbahn, S., Setting and Improving Policies for Reducing Alcohol and Other Drug Problems
on Campus: A Guide for Administrators (Washington, DC: U.S. Department of Education, Higher Education
Center for Alcohol and Other Drug Prevention, [1995] 1997).
31
Wallack, L., and DeJong, W. "Mass Media and Public Health: Moving the Focus of change from the Individual to
the Environment," in The Effects of the Mass Media on the Use and Abuse of Alcohol (Rockville, MD: U.S.
Department of Health and Human Services, National Institute on Alcohol Abuse and Alcoholism, 1995), 253-68.
32
Ryan, B.E., and DeJong, W. Making the Link: Faculty and Prevention (Washington, DC: U.S. Department of
Education, Higher Education Center for Alcohol and Other Drug Prevention, 1988).
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Stetson Law and Higher Education Conference, February 2000
types of educational strategies are necessary, they are insufficient by themselves.33
Some colleges and universities are experimenting with the use of campus-based
mass media – social norms/marketing – to communicate educational messages to students.
Most of this work has focused on providing more accurate information about actual
levels of alcohol use on campus.34 This strategy is grounded in the observation that
students tend to overestimate the number of their peers who drink heavily. To the
extent that this misperception drives normative expectations about alcohol use, and to
the extent that those expectations drive actual use, it is important that the misperception
be corrected.35 Studies at Northern Illinois University, Western Washington University,
and the University of Arizona suggest that this approach to changing the social
environment has great promise as a prevention strategy.36
Harm reduction programs are another mainstay of campus-based prevention.
For example, many campuses have created programs that encourage students to
separate the acts of drinking and driving, including designated driver and safe ride
programs. Worries about students driving under the influence are justified, although
students who engage in high-risk drinking but do not drive after drinking also face
significant health and safety risks. What is necessary, then, is a more general approach
that focuses on changing a broad array of environmental conditions that currently
33
Perry, C.L. Williams, C.L.; Beblen-Mortenson, S. et al. "Project Northland: Outcomes of a Communitywide
Alcohol Use Prevention Program During Early Adolescence," American Journal of Public Health 86 (1996): 95665.
34
Zimmerman, R., Social Marketing Strategies for Campus Prevention of Alcohol and Other Drug Problems
(Washington, DC: U.S. Department of Education, Higher Education Center for Alcohol and Other Drug Prevention,
1997).
35
Perkins, H.W., and Wechsler, H., "Variation in Perceived College Drinking Norms and Its Impact on Alcohol
Abuse: A Nationwide Study," Journal of Drug Issues 26 (1996): 961-74.
Haines, M.P. and Spear, S., “Changing the Perception of the Norm: A Strategy to Decrease Binge Drinking
Among College Students.” Journal of American College Health, 45: 134-140 (1996); Haines, M.P., A Social Norms
Approach to Preventing Binge Drinking at Colleges and Universities (Washington, DC: U.S. Department of
Education, Higher Education Center for Alcohol and Other Drug Prevention, 1996); and “Creating Misperceptions
of Norms on Seven Campuses.” Catalyst, Vol. 4, No. 1 (Newton, MA: The Higher Education Center for Alcohol
and Other Drug Prevention, Summer/Fall 1998).
36
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Stetson Law and Higher Education Conference, February 2000
encourage students' high-risk drinking.37
One of the chief lessons of nearly two decades of prevention research is the need
for a comprehensive approach, one that not only addresses the specific educational
needs of individuals but also seeks to bring about basic change at the institutional,
community, and public policy level.38 This approach is grounded in the firmly
established principle that the decisions that people make about alcohol and other drug
use will be shaped by the physical, social, economic, and legal environment in which
they live. This environment, in turn, can be shaped by a committed group of local
prevention advocates, higher education officials, government officials, and others.
Consistent with current prevention research, a broader approach to student drinking is
needed, one that reflects a more complete understanding of how societal conditions
drive drinking and the magnitude of student drinking-related problems.
Students receive “educational” messages from a number of sources, not just the
classroom, and until these messages in the campus and community are changed, college
officials face an uphill battle. Sources of mixed messages are abundant in college and
university communities: liquor stores that fail to check for proof-of-age identification;
local bars that offer “happy hours” and other low-price promotions or that serve
intoxicated patrons; on-campus advertising for beer and other alcoholic beverages; an
absence of alcohol-free social and recreational options; faculty who make minimal
demands on students, offer little in the way of mentoring, and take little interest in their
well-being; lax enforcement of campus regulations, local ordinances, and state and
federal laws. College and university officials cannot expect students to say "no" to highrisk drinking when their environment tells them "yes."39
37
DeJong, W. Preventing Alcohol-Related Problems on Campus: Impaired Driving (Washington, DC: U.S.
Department of Education, Higher Education Center for Alcohol and Other Drug Prevention, 1995).
38
DeJong and Langenbahn, op. cit.
39 DeJong, W., et al., Environmental Management - A Comprehensive Strategy for Reducing Alcohol and Other
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Stetson Law and Higher Education Conference, February 2000
Environmental Management: A Public Health Perspective on Shared Responsibility
Models
The essence of the environmental management approach to high-risk drinking
and drug prevention is for college officials, working in conjunction with the local
community, to change the campus and community environment that contributes to
drinking problems. Such change can be brought about through an integrated
combination of programs, policies and public education campaigns. Stated simply,
traditional approaches to prevention have tacitly accepted the world as it is and then
tried to teach students as individuals how to resist its temptations. In contrast, with the
environmental management approach, there is a coordinated effort to change the world
B that is, the campus and community environment B in order to produce a large-scale
impact on the entire campus population, including students, faculty, staff, and
administrators.
The environmental management approach is intellectually grounded in the field
of public health, which emphasizes the broader physical, social, cultural, and
institutional forces that contribute to problems of human health.40 The value of this
perspective is evident in the story of Dr. John Snow, one of the fathers of the public
health movement. In 1854, a cholera epidemic was sweeping across Europe. During
one outbreak in London, over 500 people died in just ten days. No one knew what
caused the disease, and there was no cure. Having a hunch about what the source of
the disease might be, Snow walked through the City of London to document where
Drug Use on College Campuses. (Newton, MA: The Higher Education Center for Alcohol and Other Drug
Prevention, 1998): 5.
40
Wallack, L.; Dorfman, L.; Jernigan, D.; and Themba, M.; Media Advocacy and Public Health: Power for
Prevention (Newbury Park, CA: Sage Publications, 1993).
Joel C. Epstein, “Liability for Campus Violence”
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Stetson Law and Higher Education Conference, February 2000
each victim had lived. By this method, he discovered that the outbreak was largely
restricted to an area within 250 yards of the Broad Street water pump. Snow arranged
for the pump to be removed, and within three days, the epidemic ended.41
Environmental management can be successful when deep causes cannot be directly
addressed.42
The broader lesson that Snow teaches us is that often the best way to protect
public health is to change the environment in which people live and work.43
Environmental management strategies have been used to combat public health
challenges in the developing world for a long time. Recent years have seen the
application of environmental approaches to address various forms of dangerous
behavior domestically. Here are some examples, with important lessons.
Driving Under the Influence
The U.S. record in decreasing alcohol-related traffic fatalities is remarkable. In
1982, there were 25,165 alcohol-related traffic fatalities, which represented about 57
percent of all fatal crashes, according to the National Highway Transportation Safety
Administration (NHTSA). In 1995, alcohol was involved in 17,274 crash fatalities,
which were 41 percent of that year's crash fatalities. Hence, between 1982 and 1995, the
number of alcohol-related fatalities dropped by 31 percent, and the proportion of crash
fatalities involving alcohol fell by 28 percent.44
41
DeJong, W., and Winsten, J.A., The Media and the Message: Lessons from Past Public Service Campaigns
(Washington, DC: The National Campaign to Prevent Teen Pregnancy, 1998).
42
When coupled with strategies aimed at deeper causes, environmental management is even more promising.
43 DeJong, W., et al., Environmental Management - A Comprehensive Strategy for Reducing Alcohol and Other
Drug Use on College Campuses, at 7.
44
National Highway Traffic Safety Administration (NHTSA). Traffic Safety Facts 1995: A Compilation of Motor
Vehicle Crash Data from the Fatal Accident Reporting System and the General Estimates System (DOT HS 808
471) (Washington, DC: US. Department of Transportation, 1996).
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Stetson Law and Higher Education Conference, February 2000
How did such dramatic change occur?45 Modern U.S. efforts to combat drunk
driving began with the founding of grass-roots organizations such as Mothers Against
Drunk Driving (MADD). Their first success was a widespread change in public
attitudes. Emerging from this change in public attitudes came the passage of new laws
that impose firm and consistent punishment against convicted drunk drivers with the
hope of decreasing repeat offenses. Those efforts were followed by the implementation
of general deterrence policies, such as sobriety checkpoints (police roadblocks), that are
designed to increase public perceptions of the risk of apprehension and punishment.
More recently, drunk driving prevention work has focused on alcohol control policies.
Focus on Disorder
Recent advances in crime and violence prevention have resulted from changes in
law enforcement strategies to crack down on minor nuisances and petty crimes that
otherwise would signal that a neighborhood is an easy target for further criminal
activity.46 Behavior is shaped by environment, so if we are to change behavior, we need
to change environment.
Environmental management represents a radical shift in thinking about
prevention in higher education, a new doctrine for managing student conduct that
requires college officials to view their role and responsibilities in a new way.
Environmental Management: How the Evolving Legal Perspective has Changed
College Culture
45
Certainly other factors played a role as well, including inter alia, safer cars, and better highway management.
Wilson, J.Q., and Kelling, G.L. "Broken Windows: The Police and Neighborhood Safety." The Atlantic Monthly
(March 1982); Feins, J.D.; Epstein, J.C.; and Widom, R., Solving Crime Problems in Residential Neighborhoods:
Comprehensive Changes in Design, Management, and Use (Washington, DC: U.S. Department of Justice, National
Institute of Justice, 1997); Kelling, G.L., "Broken Windows" and Police Discretion (Washington, DC: U.S.
Department of Justice, Office of Justice Programs, October 1999); and Epstein, J., "Fixing Broken Barroom
Windows." Prevention File, Volume 12, No. 4 (San Diego: The Silver Gate Group, Fall 1997).
www.edc.org/hec/pubs/articles/fixwindows.html
46
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Stetson Law and Higher Education Conference, February 2000
Many college and university officials once hesitated to articulate clear alcohol
and other drug policies on the assumption that these policies, because they could not be
perfectly enforced, would contribute to a finding of institutional liability in the courts.
School officials can no longer justify this stance. In addition to the heightened public
and media scrutiny of the last few years and several important court rulings, the DrugFree Schools and Campuses Act recently reiterated in Higher Education Amendment
Section 120, require colleges to develop, announce, and enforce an unequivocal set of
policies for preventing the misuse of alcohol and other drugs on campus.47
In response to this changing climate, a college's prevention programs and policies
should seek to establish and maintain an environment that will discourage student
drinking. If effectively implemented and enforced, these measures will contribute to a
safer environment, one that not only reduces the college's risk of exposure but also
enhances its ability to accomplish its educational mission.
Congress giving its blessing to parental notification further confirms the
significant shift in public thinking about the problem of college student drinking. This
new perspective is also evident in judicial rulings such as Furek v. The University of
Delaware,48 Coghlin,49 and Knoll,50 and in the grand jury investigation into the Fall 1997
death of MIT freshman Scott Krueger.51
Legal and Policy Action Steps for Fighting High-Risk Drinking on Campus:
Addressing Institutional Factors
47
H.R. 5, Higher Education Amendments of 1998 (Enrolled Bill [Sent to president]), October 1998. Also see
Epstein, J. The Higher Education Amendments (Newton, MA: The Higher Education Center for Alcohol and Other
Drug Prevention, January 1999); http://www.edc.org/hec/pubs/prev-updates/higher-ed-amend.html
48
594 A.2d 506 (Del. 1991).
49
See note ___ supra.
50
See note ___ supra.
51
See Epstein, J. “MIT Fraternity Getting Off Easy,” Op-Ed, The Boston Globe, November 16, 1998.
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Custom and usage in the industry now sees that the primary vehicle for creating
environmental change on campus should be a campus-based student drinking task
force. Representatives from a broad spectrum of campus interests and constituencies
need to be part of the task force – including college and university attorneys, students,
alumni, parents, and various community representatives. The task force should report
directly to the college president, and should be heavily involved in policy creation,
enforcement, and evaluation.
The task force shares responsibility with the college president for helping
maintain prevention near the top of the college's agenda and for creating a climate of
support for an environmentally focused approach to prevention. The task force should
consider developing a media (social marketing) campaign to create that climate or to
promote specific programs and policies that facilitate that goal.
A campus task force will have several important duties. The first is needs
assessment, which should include an assessment of the problem and a comprehensive
review of existing prevention programs and policies. The task force should also explore
the structure of the institution and the basic premises of the educational program to see
how they affect alcohol and other drug use. New arrangements might help students
become better integrated into the intellectual life of the school, change student norms
away from alcohol and other drug use, or make it easier to identify students in trouble
with alcohol and substance use. Colleges can derive enormous benefit from outside
evaluation and input. Many colleges retain features of political insularity that make
honest assessment a great personal risk to insiders.
Based on the needs assessment, the task force can craft a strategic plan for new
programs and policies. Prevention begins with the admissions process. Questions to
consider: should the college's admissions criteria be altered so that newly matriculated
students are less likely to be prone to engage in high-risk drinking or drug use? Should
the college be presented in its promotional literature and on campus tours in a way that
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attracts lower-risk students? What should the materials say regarding the college's
expectations about student conduct?
Action may be required to limit alcohol availability and the circumstances of
alcohol use. Given the profits that the alcohol industry makes from sales to underage
and high-risk drinkers, and given the problems that alcohol misuse creates on college
campuses, many school administrators have concluded that it is improper for their
college to collaborate in the industry's marketing activities. If school officials are
unprepared to impose a total ban on campus advertising and promotion, they might
consider developing strict policies to define what they will allow.52
The ultimate goal in addressing this wide range of issues is to promote alcohol
prevention and to create a safer campus where learning can take place. Colleges are
systems that can either facilitate or de-facilitate high-risk drinking. An environmental
management approach recognizes that each component of the system plays a role in
student drinking, and each has a potential role as part of a comprehensive prevention
strategy focused on environmental change. The confluence of social policy and legal
norms on shared responsibility law has been a salient development in the fight to
reduce high-risk alcohol use by college students.
Making Practical Use of Law as Part of an Environmental Strategy
Beer Bullies are students who facilitate significant alcohol risks for others. Law is
particularly helpful in establishing an ordered environment and in finding proper
enforcement mechanisms. To use the law to confront the beer bully campuses must first
identify problems associated with high-risk drinking and devise and enforce
environmental rules aimed at reducing associated disorder. For example, 'hard partiers'
often cause minor property damage, noise disturbances, tend to vomit in residence halls
and elsewhere, and are more often caught urinating in public. Identifying specific
52
In the case of public colleges, this analysis should include an examination of any Constitutional commercial
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problems associated with abusive or unlawful drinking and adopting and enforcing
rules regarding these problems as alcohol rules will reduce alcohol related disorders
and dangers. Students with multiple violations will also often be major risk creators as
well. Establish an environment where alcohol associated disorders are identified and
subject to enforcement.
speech issues that may arise.
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Second, seek creative enforcement strategies. Lake and Bickel speak of
identifying and disciplining "beer bullies."53 These individuals often arrange and 'plan'
abusive alcohol situations, encourage others to engage in dangerous drinking or related
activities, and seek criminal or quasi-criminal cooperation from outside entities. While
only a tiny fraction of a student population, such students can create an environment at
odds with the one sought by the university. Poorly thought out rules and strategies can
actively facilitate these individuals: well thought out strategies can weaken them.54
Law and "Due" Process: Successful Environmental Management Involves Creative
Rethinking of Process ‘Rights’
The leading model for student judicial process is Edward N. Stoner's Model
Student Disciplinary Code.55 The essential elements of the model code include ". . .
notice to students, faculty and administrators concerning the institution's policies and
procedures . . ." [and] a process that insures against arbitrary action, or unfair treatment
of students. The Code anticipates: a specification of (1) the authority of the institution's
'judicial' bodies; (2) a description of misconduct covered by the code; (3) an outline of
procedures for bringing 'charges' of misconduct, holding 'hearings,' and deciding
'appeals;' and (4) a procedure for interpreting and revising the code. The "Model Code"
is a direct reaction to "due process" case law and reinforces a traditional 'law
enforcement' 'judicial' approach to rules, regulations and enforcement on campus.
Landmark cases in the 1960's like Dixon v. Alabama State Board of Education56 held
that the summary expulsion of students at public colleges in retaliation for their
53
Bickel & Lake, The Rights and Responsibilities of the Modern University Who Assumes the Risk of College Life?,
208-109 (1999).
54
Id.
55
See Stoner, E., Harnessing the 'Spirit of Insubordination': A Model Student Disciplinary Code, 17 J. COLL. AND
UNIV. LAW 89 (1990).
56
294 F.2d 150 (5th Cir. 1961).
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participation in the civil rights movement violated constitutional norms of due
process.57 Later cases, like Tinker v. Des Moines Ind. Comm. Sch. Dist.,58 Healy v. James,59
and Papish v. Board of Curators of Univ. of Missouri,60 extended fundamental
constitutional protections at public colleges to student speech, association and
newspapers. Private colleges came to have very similar responsibilities to students,
albeit, under "contract" or other theories.61 So it was that "due process" notions came to
campus. Somehow, however, these cases led to the development of highly 'judicial'
student discipline models, which frequently include formal hearings and appeals that
mimic a trial and appellate court culture.62 The student civil rights cases (and related
cases) involving expulsion demanded fundamental due process – notice, a specification
of charges, an summary of the evidence of misconduct, a 'fundamentally fair' hearing
that included an opportunity for 'give and take', and an adequate record of the
proceedings leading to disciplinary action in cases implicating significant rights – but
they never demanded university disciplinary models that mirror criminal or civil courts
in structure.63
It is noteworthy that most public and private colleges and universities now
engage in more 'process' than either constitutional or contract law demand.64 Courts
have observed in student discipline cases that the student plaintiff was afforded more
57
See Bickel, R., and Lake, P., Reconceptualizing the University's Duty to Provide a Safe Learning Environment: A
Criticism of the Doctrine of In Loco Parentis and the Restatement (Second) of Torts, 20 J. OF COLL. AND UNIV. LAW
261, at 267-68.
58
393 U.S. 503 (1969).
59
408 U.S. 169 (1972).
60
410 U.S. 667 (1973).
61
See Brandeis.
62
Ibid.
63
See Horowitz v. Board of Curators of the University of Missouri, 435 U.S. 78 (1978).
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due process than was legally required.65
Melinda Grier, General Counsel to the Oregon University System, has argued
that it is time to simplify student discipline procedures.66 Due process, in the context of
the most serious college student discipline, at a minimum consists of: (1) fair notice of
charges and conduct supporting the charges; (2) notice of hearing; (3) notice of
evidence; (4) the opportunity to 'confer' with legal counsel; (5) and opportunity to
defend against the charges; (6) an impartial decisionmaker; and (7) entitlement to the
expectation that the university will substantially comply with its own procedures.
College conduct codes need not be as specific as criminal statutes, or agency
regulations; they must establish enforceable standards that will not result in arbitrary or
discriminatory adjudication.67 Grier correctly notes that courts have been reluctant to
require confrontation and cross-examination of witnesses,68 and generally do not
recognize an entitlement to participation of legal counsel, except in an advisory
capacity.69
Critically, due process is an inherently flexible concept, which means that the
amount of process required in less serious matters – and even in matters of pure
academic discipline -- may be lower. Successfully fighting high-risk alcohol use will
require retooling complex, overly processed codes to meet the disciplinary needs of the
modern college community.
64
65
See Brandeis.
Ibid.
Grier, M., “Student Disciplinary Procedures: Is it Time to Simplify the Process?” Conference Proceedings, Stetson
University College of Law, 20th Annual National Conference on Law and Higher Education, Clearwater Beach,
Florida, February 11-13, 1999.
66
67
See Horowitz, supra.
68
Courts have generally been satisfied, Grier observes, when questions are submitted to the hearing officer who then
directed the questions to witnesses.
69
Grier emphasizes that it is especially appropriate to allow the student to confer with legal counsel on issues of selfincrimination, where the student is charged in a parallel criminal proceeding.
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Identifying Dangerous Students on Campus
Last summer’s deadly rampage in Illinois and Indiana of a racist and anti-Semitic
former college student underscores the need for colleges and universities to develop
Constitutionally-valid strategies for identifying and making the public aware of
dangerous students in their midst. The rampage, resulting in two deaths and the
shooting of at least nine others, raises the question, what can institutions of higher
education do to prevent themselves from being used as cover for dangerous
organizations and individuals who hide behind the veil of privacy laws and student
confidentiality policies?
College and university legal counsel are wisely risk-adverse but in the hate crime
and interpersonal violence areas their caution has been to a fault. Given the notable rise
in campus hate crimes in recent years, a different approach is needed. Like the sexual
predators who flourish on many campuses, racist and anti-Semitic hate groups and
individuals have found higher education a safe haven. White supremacist
organizations like the World Church of the Creator and other hate groups gain access to
universities by distorting the First Amendment and exploiting the naïve tendency of
schools which continue to view themselves as bastions of open dialogue. The groups
then use the campus as their soapbox to recruit and rouse their minions – alienated and
often paranoid individuals – to the inevitable conclusion that the white race is being
crowded out by blacks, Jews, and Asians.
It is now know that this racist and anti-Semitic killer came to the attention of the
University of Illinois police in the fall of his sophomore year when in a single week in
October 1997, he was accused of beating his girlfriend and fighting with other students.
By February 1998 the killer was out of the University of Illinois but by the summer he
was enrolled at Indiana University, espousing the same inflammatory racist and antiSemitic views he had exhibited at Illinois. One wonders what the Indiana admissions
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office knew of the killer's past at Illinois and how effectively its application screened for
information that might have uncovered his racist and anti-Semitic views and history of
domestic violence. Taken together, the admissions office might have looked elsewhere
to fill its summer classes.
In their 1999 book, The Rights and Responsibilities of the Modern University:
Who Assumes the Risks of College Life?, Bickel and Lake, introduce the concept of
"beer bullies" (discussed above) – often gregarious and bright students with strong
leadership qualities who exploit the void in student social life to facilitate the
emergence of a high-risk drinking subculture. Though no one should equate serving
alcohol to underage students with hate crime, rape, and other felonious conduct, the
beer bully model is one that offers lessons for addressing criminal and other dangerous
activity generally. Respectful of the Constitutional and other due process issues raised
by scrutiny of a small group of students, some campuses are making use of expulsions
and suspensions, and referral for prosecution where criminal activity is indicated to
respond to dangerous student conduct. In select instances, the use of such sanctions in
cases of students espousing violence racist views and behavior may be appropriate.
Identifiable criminal profiles exist for dangerously racist individuals, sexual
predators, and those prone to lethal violence. Regrettably, few colleges and universities
currently dare to probe for that information, though they can and might ask applicants
questions such as, "Have you ever been suspended or expelled from school or arrested
for conduct involving racist speech or behavior or sexual misconduct?" A student's
pledge that he or she has never been suspended, expelled, or arrested for such conduct
could then be used in a judicial hearing involving charges brought against the student.
With the courts and the public increasingly holding that colleges and universities
share some responsibility for the acts of their students, schools would be well-advised
to both better screen out those who, according to the norms of the college or university,
pose a real threat to the public. Take for example the case of Nero v. Kansas State
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University70 where the university permitted a known rapist to reside in the sole summer
residence hall rather than face a lawsuit from the student challenging his exclusion
from housing. When the rapist re-offended over the summer while living in the
residence hall, the university faced a far more damaging case from the rape victim than
it might have faced from the student who had previously been convicted of rape.
Schools can and should continue to admit rehabilitated offenders. But, colleges
and universities should consider risking legal challenges from racists, beer bullies,
sexual predators, and others who threaten the public safety. Higher education's fear of
a lawsuit by an aggrieved student, as aberrant as his or her views and behavior may be,
only facilitates that student's criminal and morally reprehensible behavior. Higher
education is a privilege. College administrators can do more to confront and expose
student racists and others who threaten the public while continuing to fulfill the
important role they play in the reintegration into society of rehabilitated criminal
offenders. Thankfully, Constitutionally-valid models for responding to currently
dangerous students are beginning to emerge.
70 861 P.2d 768 (Kan. 1993).
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