THE DUTY TO TEACH: FACILITATION OF SAFE LEARNING
Presented at the
Stetson University College of Law
22nd Annual National Conference on Law and Higher Education
February 17 – 21, 2001
Nancy Tribbensee
Deputy General Counsel
Arizona State University
(480) 965-4551
trib@asu.edu
Traditional classroom learning conjures images of a faculty member lecturing to
rows of students dutifully taking notes to prepare for a written exam. While still an
important element of the college and university environment, this traditional model of
teaching and learning has been supplemented by a multitude of experiential settings,
including practical training, laboratory requirements, field experience, “hands-on” skills
development, and clinical practice.
Students continue to take familiar college courses in arts and sciences, business,
nursing, engineering and fine arts. Students now also expect to participate in field trips
and to find internship placements in these fields. These opportunities enhance the
didactic classroom component with real world experience off-campus. In many cases,
this additional experience is recommended or required by the academic program. For an
increasing number of students, these experiences are necessary to be competitive in the
job market in their chosen field.
In addition to traditional academic programs, students now take courses in diving,
rock climbing, boating and other recreational activities. They study abroad in cultural
immersion programs. Whether for academic credit or in a non-credit setting, universities
and colleges have undertaken a broad variety of instructional methods and environments,
each presenting risks and hazards previously unknown in the classroom.
With these exciting developments in curriculum come some devastating
consequences. A review of cases across the country reveals the sometimes catastrophic
risks associated with off-campus learning experiences: a student drowns in a diving
class,1 another dies in a rock climbing class,2 a medical resident contracts HIV at a
university-related hospital,3 another student is paralyzed after walking off a cliff on a
field trip.4 Others are criminally assaulted by third parties while studying in foreign
countries5 or closer to home on internship placements.6 Sexual harassment by supervisors
and colleagues, although beyond the scope of this paper, is yet another very serious risk
faced by students.7
Often administrators come to learn of these tragic accidents through legal cases
reported in the news or discussed at professional meetings. After the initial shock, the
administrator may reflect on the number of students at his or her own institution facing
similar risks each day. Consider the number of students each semester at your institution
who participate in field trips, who are on internships or externships, who undergo clinical
training for medicine, nursing, psychology, audiology and other professions at offcampus sites. Consider business and engineering students participating in programs with
local and national companies and student teachers working with children in your local
1
Boyce v. West, 71 Wash. App. 657, 862 P.2d 592 (1993).
Regents of the University of California v. Roettgen, 41 Cal.App.4th 1040 (1996).
3
Doe v. Yale University, 252 Conn. 641, 748 A.2d 834 (2000)
4
Beach v. University of Utah, 726 P.2d 413 (1986).
5
See, e.g., Bloss v. University of Minnesota Board of Regents, 590 N.W.2d 661 (1999).
6
See, e.g., Nova Southeastern University, Inc. v. Gross, 758 So.2d 86 (2000).
7
See, Legal Limbo of the Student Intern: The Responsibility of Colleges and Universities to Protect
Students against Sexual Harassment, 23 Harvard Women’s Law Journal 95.
2
2
schools. How do faculty and students prepare for these programs? How carefully are
these activities monitored?
Administrators have been asked to interpret risks to students through the lens of a
variety of legal theories. In their book, The Rights and Responsibilities of the Modern
University,8 Robert Bickel and Peter Lake provide an excellent and comprehensive
discussion of the case law defining the relationship between universities and their
students. They begin their review with the doctrine of in loco parentis. Under that
doctrine, colleges and universities were cast in the role of parent toward college students.
The doctrine was used primarily to insulate institutions from liability.9 The underlying
premise was that universities would resolve disputes with students internally and these
relationships would not be subject to judicial scrutiny, even if a student alleged he or she
had been harmed or injured.
The parent-child relationship, however, does not accurately reflect the
relationship between a college or university and its adult students. It has not been a
suitable model in part because it fails to reflect the relationship institutions have and
should foster with students. Students pay tuition to and enter contracts with institutions.
This contractual relationship is evidenced by documents published by, and
representations made on behalf of, the university or college. Students and their families
have reasonable expectations arising from those representations. College students have
more rights and responsibilities in general than minor children, and these are reflected
throughout the university environment. In addition, courts are increasingly inclined to
8
9
Robert D. Bickel and Peter F. Lake, The Rights and Responsibilities of the Modern University (1999).
Id. at 17.
3
impose legal duties of care upon parents and guardians, diluting the parental immunity
model even further.
A more appropriate model for the relationship between a college or institution and
its students is one that reflects the ability of college students to make appropriate risk
management decisions when armed with adequate information and training. This model
provides for shared responsibility between universities and students for creating and
maintaining a safe learning environment. It requires institutions and individuals to act
responsibly, to plan activities with care, to assess risk and to promote a safe learning
environment.
Bickel and Lake term the cases following the decline of in loco parentis as the era
of the “Bystander University.”10 In cases decided under this paradigm, colleges and
universities sought to avoid liability by arguing they owed no duty to their adult students;
they supported this position by declaring that their roles were educational and not
custodial. Cases decided using this reasoning held students responsible for the
consequences of their conduct (e.g., personal injuries associated with drinking) and
declined to impose any “custodial” responsibility on universities.
One such case is the 1986 decision of the Supreme Court of Utah in Beach v.
University of Utah. 11 A 20-year-old student was injured during a required field trip for
her freshman field biology class. After arriving at the campsite late Friday afternoon, the
instructor led the group on a hike to orient them to their surroundings, including an area
of high rocks off which Beach and other students repelled the next day. On Sunday
afternoon, the students attended a dinner at a local ranch, during which the (underage)
10
11
Id. at 49.
726 P.2d 413 (1986).
4
students and the instructor drank alcohol. Beach and others continued to drink after
dinner on the return trip to the campsite, and the instructor was aware of this. When the
group returned to the campsite, reportedly the student did not appear intoxicated. She
headed off toward her tent, but became disoriented and fell into the rocky area. She was
not discovered until the next day and was rendered quadriplegic by the fall.
The Supreme Court upheld the decision of the District Court to dismiss the
student’s claim. The court held that the university was not liable because it had no duty
to supervise and protect the student against the consequences of her voluntary
intoxication. The court indicated, “colleges and universities are educational institutions,
not custodial.”12
Bickel and Lake reject the Bystander University paradigm, under which
universities seek to avoid liability by arguing they owe no duty to their students. They
cite the Beach decision as drawing a false dichotomy between the roles of custodian and
educator. Instead, they argue for the Facilitator University, where the facilitator is “…a
guide who provides as much support, information, interaction, and control as is
reasonably necessary and appropriate in the situation.13 In essence, universities may have
some custodial responsibilities inherent in their educational role. Universities cannot
fulfill their educational mission if students do not have a safe environment in which to
learn. The facilitator model balances rights and responsibilities between students and
universities; both share responsibility for student safety.14
12
Id. at 419.
Bickel and Lake at 193.
14
Id. at 219.
13
5
Although the court in Beach found the university had no duty to protect the
student, the decision includes language that might still be instructive under a facilitator
paradigm. The court described the action taken by the instructor to prepare students for
the field experience, including the initial hike to orient the students to their surroundings.
Although this was not necessary to its finding of “no duty,” in part the court
acknowledged the value of analyzing the circumstances in terms of teaching and learning
when it concluded that additional instruction would not have been likely to prevent the
injury that occurred.15 The court fails to recognize, however, that without adequate
safeguards, meaningful instruction cannot occur.
The in loco parentis and Bystander Era cases described paradigms under which
universities could attempt to avoid liability by denying any duty to students. Many
academic administrators have become familiar with the concept of duty and its
consequences through a line of cases that impose liability for foreseeable risk to
identifiable victims. These cases describe what has been come to be known as the duty to
warn.16 The tragic facts of the Tarasoff case influenced risk management and higher
education administration across the country.
The legal duty to warn has become generalized in higher education administration
to cover a variety of situations in which university personnel undertake to provide risk
management information to students. Once university administrators have accepted the
idea that they may have a duty to students, too often that duty is characterized in negative
terms. The culture has, in many cases, shifted from “teaching” to “warning” when the
context includes providing information about potential risks or dangers inherent in a
15
726 P.2d 413
6
proposed activity. While still an essential component of the law and risk management, the
“duty to warn” should not replace the duty to teach.
Characterizing communications between the institution and its students as
“warning” places university administrators in an uncomfortable and unfamiliar role with
respect to their students, particularly in the context of student training and field trips. The
focus is on “warning” and danger, not on the academic purpose of the experience.
Sometimes this negative perspective is used as an excuse to avoid expanding learning
opportunities. Other times, administrators report dissatisfaction with a legal system that
they feel creates a litigious culture that mandates warnings and disclaimers. In any case,
generalizing this legal concept does not serve to facilitate the relationship universities and
colleges wish to foster with students.
Another example of legal duty with which administrators have become familiar
involves premises liability. In cases alleging premises liability, plaintiffs allege that the
defendant has a duty to maintain property under its control in a safe manner. These cases
are instructive in that they reinforce the need for adequate lighting, working locks, gated
entrances, monitored parking lots, and when appropriate, trained and professional
security or police patrols. Again, these are essential elements of safety on all campuses.
Recent cases remind us to consider these issues for all places we send students as part of
the academic experience. The difficulty here is that most student affairs and academic
administrators have little or no direct control of the premises on campus, much less at offcampus sites. While administrators and students must continue to report problems and
suggest solutions to those responsible for maintaining on- and off-campus premises and
16
See, Tarasoff v. Regents of the University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 20, 551 P.2d
334, 340 (1976) (therapist may incur an obligation to protect a patient's intended victim).
7
facilities, administrators and faculty need support for exercising more direct authority to
protect students. They should be empowered to educate students, to prepare them for all
aspects of the educational experience, including the risks associated with off-campus
learning.
One strategy to return control to faculty and administrators is to encourage them
to do what they are trained to do: teach students. Whenever possible, their roles under
various legal theories and risk management strategies should be described in terms of
their roles as educators. In addition to substantive program and curriculum development,
colleges and universities need to teach students about risks, rights and responsibilities
associated with alternative learning modalities and locations. Students need to learn to
protect themselves and to take responsibility for safety and risk management.
The following section discusses recent cases arising from accidents involving
students in college-sponsored activities. Although the cases are instructive on many
levels, the primary focus of this discussion will not be on the theory of liability but
instead on the court’s perception of the role of the college or university in training or
preparing students for the risks associated with the experience.
Instructive Cases.
An early case discussing the issue of university liability for harm to students
engaging in an off-campus university-sponsored activity is Mintz v. State of New York.17
Two students drowned in an unexpected storm while on an overnight canoe outing that
had been “encouraged” as an extracurricular activity by the university. The estates of the
deceased students alleged that the university was negligent in failing to adequately
monitor the weather conditions that led to the students’ deaths. The court outlined the
8
precautions the university had taken to insure student safety, including lights on shore
and on the canoes, a motor boat escort, and an experienced canoer steering each boat.
The court found that the university had taken all “necessary and reasonable precautions”
to promote a safe outing and attributed the deaths to the unexpectedly severe conditions
on the lake.
As Bickel and Lake explain, “Mintz is a classic example of the fact that
duty alone does not create strict liability....”18
In the1993 case of Boyce v. Gonzaga University, the Washington Court of
Appeals did not find the university liable for the death of a student who drowned during a
university sponsored scuba diving class.19 The student completed an introductory scuba
diving course, and then became a certified diver after completing four additional openwater dives. He enrolled in the advanced diving course and completed three of the five
dives planned for the course. He died during the fourth dive. The instructor became
concerned when two of the student divers were low on air after descending 80 to 100
feet. He signaled for the group to ascend and began to assist one of the two divers who
began to panic. Boyce, the other diver, was found dead at the surface after having
ascended too quickly.
Prior to each of the classes, Boyce signed liability waiver forms releasing the
university from liability for negligence associated with the course. The court upheld the
releases, noting the adequacy of the student’s preparation and diver training and the
student’s competency to waive liability and assume the risk of danger inherent in the
activity.
17
362 N.Y.S. 2d 619 (N.Y. App. Div. 1975).
Bickel and Lake at 98.
19
Boyce v. West, 71 Wash.App. 657, 862 P.2d 592 (1993).
18
9
In 1996, the California Court of Appeals did not hold the University of California
legally responsible for the death of one of its students in a university rock climbing
class.20 The court in Regents of the University of California v. Roettgen indicated that the
plaintiff did not provide any evidence that the student was taken beyond his level of
ability or experience when the fall occurred. The student had participated in several prior
rock climbing classes, including an introductory class, a class for advanced beginners and
one in instructor’s training, before he died in an intermediate course. The court likened
this case to those involving injuries incurred during sports, indicating that the defendants
“generally have no duty to eliminate risks inherent in the … [activity], but will be held
liable for increasing the risk of injury.”21 The court reviewed the instruction provided as
it related to the ultimate cause of the accident.
Roettgen describes a scenario of shared responsibility for safety. The respective
duties of the student and university were evaluated in terms of the nature of the activity,
the relative experience of the student and the role of the university as supervisor.22
In 1999, a student sued the University of Minnesota after she was assaulted while
participating in a university study abroad program in Mexico.23
The plaintiff in Bloss v.
University of Minnesota was attending a cultural immersion program in Mexico, when
after hailing a cab to ride to a social event one evening, the driver convinced her to ride in
the front seat. The driver later raped her at knifepoint. Bloss alleged the university was
negligent for failing to provide student housing closer to the Mexican university, failing
to provide student transportation and for failing to warn her of the risks of using taxis.
20
Regents of the University of California v. Roettgen, 41 Cal.App. 4th 1040 (1996).
Id. at
22
Bickel and Lake at 152.
23
Bloss v. University of Minnesota, 590 N. W. 2d 661 (1999).
21
10
The court found the university was immune under a Minnesota statute providing
immunity for discretionary decisions. It also determined that the university had provided
training for students regarding the risks associated with the immersion program. The
university provided students oral and written information about safety in Mexico. The
program materials, the release form and program orientation and the orientation materials
at the Mexican university all warned students about travel risks. In particular, students
were warned women should avoid going out alone at night, that students should call for
taxis rather than hail them on the street, and that women should never sit in the front seat
of a cab.
The court in Bloss provides guidance to institutions regarding preparation of
students for experiential learning off campus. The instruction was appropriate to the risks
and designed to enhance the students’ competencies in facing those risks.
In Nova Southeastern University v. Gross,24 a doctoral student sued the university
for injuries she sustained when she was attacked in a parking lot at an off-campus
internship site. The Florida Supreme Court held the university could be liable for
assigning a student to an internship site it knew to be dangerous. The court left for the
trier of fact to determine whether Nova’s failure to warn or inadequate warnings was the
cause of the student’s injury.25 Unlike Bloss, the Gross decision suggests that students
were not provided with appropriate orientation regarding the potential and known risks of
the internship placement.
Duty to Teach
24
25
758 So.2d 86 (2000)
Id. at 90.
11
The “duty to teach” is not a legal doctrine. It can be a useful model, however, for
managing risks associated with off-campus learning. This model plays to the strengths of
faculty and administrators and promotes active learning by adult students.
When non-traditional activities or off-campus locations are considered for part of
the curriculum, the university must first prepare students to meet challenges associated
with the new venue. Students must be taught about risks inherent in the proposed activity
and given the opportunity to learn the skills necessary to minimize those risks. Students
should be given the chance to learn skills to manage risk and should become prepared to
take responsibility for their own safety.
Outlined below are examples of learning experiences that go beyond the
traditional classroom setting. At the end of the paper, a Trip Checklist is provided to
summarize some of the risk management strategies suggested for use with off-campus
experiences and to reinforce the role of preparation and instruction in minimizing risk.
Institutions are encouraged to develop materials for students, supervisors and instructors
to assist them in promoting safe learning experiences.26
Laboratory experiences. Laboratory components to classes provide essential
opportunities for students to understand the principles learned in class. Some of these lab
classes pose risks beyond those found in the didactic component of the class. Chemistry
classes, for example, place students in close proximity to chemicals and lab equipment
that, if not handled properly, could cause serious harm. The instructor’s duty in these
classes is greater than to admonish students to exercise care. The duty to teach requires
instructing students in the proper handling of materials and equipment, the chemistry
26
The Arizona State University Field Trip and Field Research Safety Guidelines are available on-line at:
http://www.asu.edu/provost/riskmgmt/field.htm
12
underlying the risks, and the use of available safety equipment. Students should also be
instructed to report problems and accidents. Assignments should reflect the students’
ability, experience and understanding and students should be supervised as appropriate to
their experience.
Field trips. Field trips also supplement classroom learning, but typically involve
the additional risks associated with travel, food and new surroundings. To provide a safe
learning experience, instructors should prepare students for the activity before they leave
campus. Instructors must also have sufficient prior knowledge of the field trip site to
identify possible risks and resources. The nature of many field sites makes it impossible
for the instructor to personally supervise each student throughout the experience. To
address this, students can be assigned a partner or “buddy” with whom they are required
to maintain contact throughout the trip.
To address the risks presented in this activity, upon arrival students could be
oriented to the entire site and provided information about known risks, such as loose
rocks, sudden drop-offs, snakes, and water hazards. Each student can be paired with
another student, required to reconvene at a designated place at regular intervals, or carry
radios or walkie-talkies. Instructors or supervisors should provide training regarding
dangers they are likely to face. For example, if snakes are present, students need to be
warned about them, they need to be taught where to find the first aid kit and how to use
it.
In any off-campus activity, the role of alcohol cannot be overlooked. Students
may be tempted to drink after the activity is over, thus increasing the risk of harm in
unfamiliar surroundings. Also, drinking can increase the risk of traffic accidents if
13
students drink before driving themselves and other participants home from the
experience.
Internships, externships, clinical placements and student teaching. Practical
training experiences such as internships, externships, clinical placements, and student
teaching typically extend over a semester or academic year. They often expose the
student not only to a new physical site but also to the employees, clients or students of the
placement. The university or college is less likely to have an on-site supervisor, further
separating the student from familiar resources. Students need to understand the risks
associated with the site and how to manage those risks.
Study abroad. Foreign study experiences provide an excellent opportunity for
students to learn about different cultures while attending classes and living in another
country. Prior to sending students on these programs, the university can provide written
program materials and orientation programs to discuss known risks and foreseeable
hazards associated with the trip. The university can follow state department directives
regarding the destination country. Students need information about local resources and
accessible university contacts in case of questions, concerns or an emergency. Someone
should be available for students and the on-site program coordinator to contact at all
hours, despite differences in time zones.
Recreation and sports classes. Recent cases suggest that courts are more likely to
find that students assume the risk of harm associated with recreation or non-academic
skills classes, as in the scuba diving and rock climbing classes. Students typically are not
required to engage in these activities and they are inherently risky. Again, adequate
14
preparation, training and supervision are essential to prepare students to undertake these
activities.
Conclusion
By reframing the responsibility of university administrators and faculty as the
duty to teach, the university can encourage the development of orientation and training
programs to support the learning experiences offered outside of the traditional classroom.
Safety and risk management are essential components of experiential learning and must
be integrated into the curriculum. Although it is difficult to measure the benefits of good
risk management programs, it is not hard to see when we fail. Universities and colleges
have a responsibility to students to facilitate and promote a safe learning environment.
Students have the capacity to play an important role in their own safety, but need careful
instruction and skills training and the guidance to implement what they learn. Together,
institutions and students can enhance safe learning opportunities and expand the
possibilities for creative and meaningful education in years to come.
15
TRIP CHECKLIST
PLANNING THE TRIP
Skills training
 Determine what skills are necessary and what students should do to acquire skills
 Evaluate competencies prior to trip
Supervision
 Based upon number of students and range of skill levels, determine appropriate
number and competency levels of supervisors
 Identify skills and tools necessary for effective supervision (first aid, rescue skills)
 Protocol if a supervisor needs to leave group to accompany an injured or ill
student
Students with Disabilities
 Work with institutional ADA coordinators regarding reasonable and appropriate
accommodations
Destination Site
 Instructor should be familiar with site
 Prepare a site safety plan and discuss it with students
 Provide orientation to students upon arrival (include known risks, flora, fauna)
 Confirm that cell phone will operate from site or use radios
 Assign students to partner or buddy
 Take precautions for sudden weather change
 Determine whether immunizations are required
 Review local cultural, custom and legal requirements
 Prepare a first aid kit for risks associated with travel, food and activities at
destination
Emergency
 Identify an institutional contact available 24/7 and provide contact information to
students and instructors
 Be sure all participants know how to:
o contact institution from site
o find and use the first aid kit
o find and use the cell phone or radio
o react if separated from the group
Alcohol
 Address this directly and explicitly with students and supervisors
 Prohibit impaired students from driving and from other dangerous activities
16
Conduct
 Discuss applicability of institutional code of conduct while on trip (require
students to consent in writing if code coverage off campus is unclear)
 Also discuss sexual harassment and hazing issues, if appropriate
Insurance
 Encourage students to confirm personal health and accident coverage
 Discuss limits of institutional coverage
PREPARING FOR THE TRIP
Release forms
 Check with legal counsel for review, information about enforceability, and need
for signature of parent or guardian for minor students
 Forms should describe dates and nature of activities, identify risks, indicate if
associated travel or lodging
 Include release for medical treatment, emergency contact information
 Keep one copy at institution and another copy with field instructor
Advise students to bring:
 Appropriate clothing, gear
 Medications
 Identification and travel documents if appropriate
List of Participating Students
 Prepare list of participating students (e.g., upon departure), keep one copy at
institution, one copy in field
 May want to include pictures, especially if foreign or extended travel
Itinerary and Contact Information
 Instructor should file with institution (e.g., risk management office)
 Update as necessary
Travel
 Consider insured drivers (operators, pilots) and carriers when possible (rather than
student drivers)
 Prohibit all impaired (e.g., intoxicated, over-tired) driving
17