After a visit with my Northwest Academic Campus Computing (NWACC) friends at a resort in Washington on the beautiful Columbia River, where we talked about many law and policy issues, I am in San Francisco for the National Association of College and University Attorneys (NACUA) conference. Joe Storch, Associate Counsel for General Counsel of the SUNY System, friend and colleague, and I will be giving a talk tomorrow on cyberbullying. When you are at this kind of conference, that examination means implicitly a look at what liability institutions face, legislation both current and on the horizon, and finally, because these are attorneys that care about higher education, a look into how to meld their work into the missions of colleges and universities.
This blog provides me with a way to do my homework and share thoughts with you. By and large, higher education does not at this time face overwhelming liability for the actions between third parties unless it can be shown that an institution has acted in negligence or has a special duty towards a harmed individual. In the now famous Tarasoff case, UC-Berkeley was found to have a duty to warn a victim of the potential danger expressed by her assailant to a counselor at the university health clinic. The awful result -- that the assailant killed the victim -- drove the conclusion.
Although the hard facts of that case made for burdensome law, it would still seem a stretch to extend the kind of immediacy of face to face counseling relations into the vast expanse of cyberspace, especially when it is mediated by commercial, for-profit sites that often entice negative behavior. Common law provides the floor of potential privacy torts or defamation, but it is a blunt tool and costly instrument, which is why aggrieved students and their parents often turn to colleges and universities for redress in these situations, not to mention the "deep pockets" of higher education.
Until recently, how colleges and universities managed these situations was the salient fact of the story. Due process is the linchpin. Does the institution have a policy? If so, did they follow it? Without getting too far down in the legal weeds, it should be noted that plaintiff attorneys will often attempt to attach contractual or duty-bound relationships via these policies, but most frequently liability spins around how the colleges or university stewed in its own juices.
If Senator Frank Lautenburg and Rep. Rush Holt have their way in Congress, colleges and universities will be required to have policies in place that prohibit harassment based on race, color, national origin, sex, disability, sexual orientation, gender identity or religion or sacrifice federal funding. Additional federal funds might also become available for education and training in this area. The name of the bill is the Tyler Clementi Higher Education Anti-Harassment Act.
My thoughts: First, higher education needs more regulation like a proverbial whole in the head, but on the other hand so long as we have so much with which to contend, at least the spirit of this regulation is in keeping with my values. Second, while I understand the protected class concept, I find myself moving increasingly away from the laundry list approach and towards simple rules on harassment by anyone, toward anyone regardless of social category. Finally, on the threat of "losing federal funding" I am waiting for the day when the Federal Government makes good on its promise since it does not appear to have acted on this threat in at least the 36 years that it has been looming on FERPA and other legal progeny with the same rider. Will this legislation have teeth or will it become yet another regulation for administrators to check off but in the long run have no significant meaning?
My unscientific observation of campus life is that it is challenging in complex and contradictory ways. Some students struggle with getting out from under the protective thumb of hovering parents, a situation often made more complicated in my eyes by the observation that they don't seem to want to try! Other students are struggling with financial autonomy, not a few who are already mothers and fathers themselves, though young, and returning to school a little later in life having been held back by lack of opportunity and are now giving life a real college try. In between is a gritty, slightly Hobbsian underbelly of imitative Jersey Shore behaviors, amnesiac tablets in alcoholic drinks, date rapes and real violence.
Internet technologies intersect this environment every which way. Student affairs professionals would do well to hire people whose job it is to work purposefully on the issue of how technology influences the student experience with a goal of educating the community before thoughtless pranks or mean streaks turn damaging. In such an uneven and somewhat unstable world, it is not uncommon that in the end someone must pay. And so higher education must do what it can to protect itself and the social good for which it stands, with or without legislation.