Recently, as violent attacks and tragic deaths occurred at colleges in Alabama, Arizona, Oregon, Tennessee and Texas, a California Court of Appeal ruled that public colleges and universities have no general legal obligation to protect adult students from the criminal acts of other students.
The case was brought by Katherine Rosen, a 20-year-old pre-med student, who was brutally stabbed in a University of California at Los Angeles chemistry lab by another student. She argued the university breached its duty of care by failing to take reasonable steps to protect her from foreseeable violence.
Rosen’s lawyers have vowed to bring the case to the California Supreme Court. Whether or not the case is accepted, it is noteworthy beyond California because it comes at a time of renewed national discussion of gun control and violence on campus.
Perhaps most surprising about the 2 to 1 decision is that Rosen’s claim was dismissed by the court as a matter of law. The court determined that the issues were so clear that a jury did not need to determine the facts -- even though doctors at the campus hospital had earlier diagnosed the student who inflicted Rosen’s injuries as suffering from paranoid delusions and possible schizophrenia, and he was in ongoing treatment in a university outpatient facility. (He was later found not guilty of the crime by reason of insanity.)
In reaching the conclusion that the legal issue was free from doubt, the court opined that the foreseeability of the crime made no difference: “Colleges and universities … are not liable for the criminal wrongdoing of mentally ill third parties, regardless of whether such conduct might be in some sense foreseeable.” [Emphasis added.] The court provided the rationale for this statement in a footnote where it conjectured that imposing a duty of protection might cause some colleges to reduce or eliminate mental-health services, or to disregard the privacy rights of the mentally ill, to avoid liability.
The logic of the Rosen case comes from a line of earlier California cases (none involving mental illness) where courts made a clear demarcation between K-12 schools -- with young students, mandatory attendance and a rigidly controlled environment -- and the college or university setting, with adult students who since the 1960s have demanded the right to regulate and control their own lives.
In loco parentishas all but disappeared, and the court in Rosen concluded that reimposing the level of authority and control necessary to protect against third-party criminal conduct is “incompatible with the ‘realities of modern college life’ and the ‘goal[s] of postsecondary education.’ … We find no basis to depart from the settled ‘rule that institutions of higher education have no duty to their adult students to protect them against the criminal acts of third persons.’” Rather, the court found that colleges and universities are microcosms of the outside world, where violence can occur anywhere and everywhere, and students are responsible for protecting themselves.
Yet a powerful dissenting opinion in Rosen criticizes this all-or-nothing approach to student protection, highlighting a separate line of California cases that have carved out an exception to the no-duty rule. These cases all involved college sports (described as a “core” function), where the courts have found that higher education institutions have sufficient supervision and control over students to create a legal obligation to protect them.
The dissent argues that if colleges and universities have a duty to safeguard students on the ball field, then surely they must also have that responsibility in the most “core” of college activities: where students are in a classroom or laboratory under the active supervision of a faculty member. The dissent also draws attention to brochures and other promotional materials that reassure students and parents that UCLA is a safe environment.
A Difficult Balance
Weighing the social benefits of imposing or rejecting a special duty to protect students against the social costs is vexing. On the one side, those who concur with the ruling have argued that violence is part of the human condition and impossible to predict, no matter how professional or sophisticated threat assessments have become. Colleges and universities already have their own incentives not to become the site of the next tragedy and have taken a variety of voluntary proactive measures to reduce criminal violence and protect students from harm. They should not be punished when, despite good faith efforts, they get it wrong.
Were colleges required to more strictly control the behavior of students with mental illness, or other markers that suggest potential misbehavior, they would surely be liable under antidiscrimination laws. In addition, out of an abundance of caution, they would most likely overregulate -- or punish -- those who are “different” or unfairly deprive them of their right to pursue an education at the institution of their choice.
Students with mental illness might avoid seeking help for fear that disclosing troubling thoughts or fantasies to anyone at the college or university would provoke unwanted campus attention and response. Ironically, that would only worsen the situation and increase the risk of violence on campuses.
On the other side, others contend that colleges and universities should not automatically be excused from liability for third-party misconduct. Such institutions have the power to establish rules of conduct for the campus community; to hire, train and empower personnel; and to impose sanctions and restrictions. While college students are adults, they are still psychologically vulnerable and must depend on institutional safety measures, such as campus police and judicial affairs. Colleges gather students in large open spaces -- classrooms, libraries, lounges and plazas -- where they are exposed to acts of violence. Colleges may not have ubiquitous power to protect students from every violent act, but they should be responsible when -- through action or inaction -- they make matters worse.
Irrespective of the ultimate outcome in Rosen, no one should read the current ruling as permission for any college or university to relax or move away from measures to keep its campus safe. The opinion states: “Colleges and universities may properly adopt policies and provide student services that reduce the likelihood such incidents will occur on their campuses …” [Emphasis added.]
Already, an explosion of federal rules and regulations impose safety responsibilities on colleges and universities:
The Campus Safety (Clery) Act requires publication of detailed reports on campus crime and security measures, and preventative education.
Title IX prohibits sex discrimination (including toleration of sexual violence) and requires swift response to claims and campuswide preventative education.
The Drug-Free Schools Act requires regular distribution and review of drug and alcohol prevention policies.
The Higher Education Opportunity Act requires notice of emergencies and missing students and publication and testing of emergency response procedures.
The Campus Sex Crimes Prevention Act requires notification of information on enrolled sex offenders.
And these are just a few -- the list goes on.
Colleges and universities today must take steps to enhance student security -- whether as a matter of legal or moral responsibility. They must have thoughtful written policies for students who present a threat of danger to the campus community. They must develop detailed plans for the management of threats and actual violence, and they must follow those plans to the letter. They should train and retrain people with responsibility under the policies.
Higher education institutions should also nurture an institutional culture of community responsibility, encouraging anyone with concerns about potentially dangerous students to come forward. They should make sure every student, faculty member and staff person knows where to go to report his or her concerns. They should organize an interdisciplinary team -- with mental health professionals, residence hall supervisors, faculty, police, campus lawyers and other campus administrators -- to meet regularly, share information, coordinate, evaluate and manage troublesome cases, and empower the team to take swift action.
Colleges and universities should not be held responsible for what they cannot prevent. They are institutions of higher learning, not insurers of student safety. But the bar for what institutions must do to prevent violence, protect students and manage complicated situations is set quite high. The Rosen ruling does not change that.
Christine Helwick is former general counsel for the California State University system and now advises college and university clients at Hirschfeld Kraemer.
In this country in 2015, we have had 294 mass shootings in fewer than 300 days. Some of the worst and more dramatic incidents have been at our institutions of higher learning. Two more just occurred last Friday -- one at Northern Arizona University and another near Texas Southern University. In fact, such mass shootings have been such a common occurrence that perhaps we’re becoming desensitized to the horrors of them. The initial shock seems to be followed, in a week or so, by a relatively quick return to normal life -- as if we’ve become resigned and unsure whether anything can actually be done.
What are the solutions? People who work and study at colleges and universities have offered various recommendations, some more reasonable than others.
I am a criminologist and teach at an urban university. Although I want every college and university to be a bulwark of freedom, I know we have to make some important changes to stay safe and improve our chances of surviving when an armed person comes onto a campus with the intention of doing harm. For starters, we can minimize the opportunity that these individuals can do harm. So here’s an idea.
Modern life is crowded, fast-paced, busy. When we go to public places or attend entertainment venues -- an airport, a football game, a concert -- or we even enter into many office buildings in large metropolitan centers, we are OK with passing through a metal detector or undergoing a security search, despite the annoyance and hassle.
We have accepted these forms of access control as part of our daily routine: show your ID, place your backpack on the conveyor belt, submit to a stranger looking through your things. Why do we do it? Because we believe that it works. As much as we may not like it, we accept it and usually feel safer. It is the price we pay for living in a society where we have the right to bear arms.
But something is not syncing up here. People are still losing their lives to individuals who have amassed an arsenal of weapons with seemingly few barriers. We have yet to come up with a solution, political or otherwise, to stop these murderers from doing us harm. In the wake of another shooting, some observers are quick to point to flaws in the mental-health system, while others say we need a dialogue about a culture that embraces violence. A number of stalwart citizens continue to advocate for better gun control. And others, reminiscent of the Wild West, talk about arming everyone to the teeth: if everyone is armed, then no bad person will dare to start shooting. Or so they say.
Meanwhile, we willingly, if not happily, endure security checkpoints in certain situations, while, at other times, we are totally on our own -- in a movie theater or college classroom or at a street party. Why have security in one public place and not in another? Is it just the cost?
This approach can be overcome. But first we need to analyze our commitment to access control to include virtually all public spaces -- malls, college campuses, festivals, theaters, public meetings -- not just some.
The new threshold has to be this: wherever people gather, in any number, for any reason, any duration and in any place, their security is paramount. Elementary and secondary schools are obvious sites. But we must include libraries, houses of worship, retail spaces and more. We have to take our willingness to pass through those gates -- and let that acceptance go forward as far as possible. Otherwise, the idea of feeling safe, of getting through a school day or a church service alive and well is, sadly, not realistic.
Obviously, this is going to cost a lot. But it is an investment: the payoff is in the lives saved and the families left intact, not destroyed by the trauma of another mass murder. And it would demonstrate to policy makers, in particular gun advocates, that there is a significant price to pay to better prepare public spaces and existing institutions for these times when all kinds of weapons are easily available.
Are the added security measures a slippery slope or a tragedy for our democracy? Some people would argue that embracing additional security will establish a true police state and that our freedom will be lost.
It is not wrong to worry about that. All of us should. But the more immediate problem is that innocent people are dying violently every day.
How will additional security measures change life on a college campus? Will freedom of speech and freedom of movement and association be compromised -- or even lost? I doubt it. It’s hard to imagine that a security check -- just like you would go through at a concert or a sports venue -- will destroy our ideals.
In many K-12 schools nowadays, students and adults walk through metal detectors, and bags and backpacks are passed through scanners. Some colleges and universities have instituted these systems as well. But this effort is far from comprehensive.
Initially, students, faculty members and staff members are probably not going to be at all happy with increased access control. But few people liked these new protocols when they were first introduced at airports and other sites, and they got used to it. Already, many colleges and universities in the United States require students, professors and administrators to swipe their cards to gain access to a building, and some ask for bags to be placed on conveyor belts to be screened by magnetometer or X-ray machines. Inconvenient as this might be, it is a far better option than, as some people suggest, arming people on campuses. The latter would probably lead students, teachers, staff members and administrators to be more reluctant to voice their opinions for fear of sounding controversial -- or worse, inciting and incurring someone’s anger and motivating them to draw and use their weapons.
Also, it all depends on where and how security measures are implemented, and the quality of the staff members who are responsible for managing the security checkpoints.
I am not suggesting that all colleges and universities should be gated communities, nor am I advocating that we post campus police wearing camouflage fatigues everywhere. But many higher education institutions, particularly in big cities, have extra security precautions like the ones I have recommended. And they have operated quite well.
Some may argue that this strategy is more appropriate for urban institutions that may appear to be more compact. This is not necessarily true. Think of New York University -- which is spread out among different buildings in Greenwich Village, the Upper East Side and Wall Street, not to mention downtown Brooklyn -- versus Columbia University, which is pretty self-contained. That said, campuses that are located in smaller towns or in more remote locations and effectively spread out would have to selectively choose the buildings where they want to increase access control. They might also consider cordoning off the most vulnerable buildings, if they have not already, by building some sort of fencing in an aesthetically pleasing manner.
Do not get me wrong. Implementing better security systems and protocols is not a cure-all for the far deeper systemic and complicated challenges surrounding gun ownership and use in American society. Yet none of those issues are going to be solved in the immediate future.
In the meantime, an average of close to one mass shooting a day in our country demands strong action. Improving security may be the best start. Let’s work on realistic ways that we can prevent somebody from taking more lives.
Jeffrey Ian Ross is a professor in the School of Criminal Justice at the University of Baltimore. He is the editor of Encyclopedia of Street Crime in America (Sage, 2013).
Against vociferous opposition from the state's own university system, a Florida Senate panel last month approved a bill allowing students, faculty and staff with appropriate permits to carry guns on public college campuses. This brings to 10 the number of states that are poised to consider so-called campus carry legislation this year. Nine currently allow it in some form or another.
This most recent wave of legislation is buoyed by arguments that guns on campus will help address the problem of sexual assault. As Nevada Assemblywoman Michele Fiore put it memorably, “If these young, hot little girls on campus have a firearm, I wonder how many men will want to assault them. [Sexual] assaults... would go down once these sexual predators get a bullet in the head.”
Critics retort that guns are a distinctly combustible ingredient added to college life, where young adults occasionally engage in binge drinking and wild partying. For that matter, it’s hard to imagine how guns can solve the problem of sexual assault on campus. Who is to say the ones carrying out the assaults won’t be armed, too?
As the campus carry movement picks up steam nationwide, there is, I would argue, another major concern worth considering -- one that has been wholly omitted thus far: How might guns impact the atmosphere and pedagogical goals of the classroom, and the political mission of the university? For, it seems clear to me, guns stand opposed to all that. There is something inherently contradictory about guns in college. They are a rude, unnecessary intrusion from the outside world, and threaten the intimacy and openness that academe hopes to foster.
American philosopher John Dewey argued that the classroom is the root of democracy, since it is where individuals learn to talk to people of different backgrounds and perspectives, collaborate, and negotiate differences. The classroom is where the all-important process of socialization occurs -- something that cannot take place at home, steeped in the privacy of family life. A functioning and vibrant democracy requires that citizens learn to work with one another, which in turn demands openness -- and a willingness to trust.
Guns communicate the opposite of all that — they announce, and transmit, suspicion and hostility.
In the humanities (where I teach), the seminar room is a designated space for intellectual exploration, and students must feel safe and encouraged to do just that. They are expected to take risks -- moral, political and personal. Controversial ideas are aired, deliberated and contemplated from many angles. Sometimes these ideas are offensive.
Many academics will contend that, at least ideally, classroom debate should be lively, even heated at times. Emotions may run high. As a case in point, I think of the many uncomfortable discussions following the Ferguson and Staten Island police killings last year. Differing views of what constituted racism -- and especially, whether racism lingered and was still entrenched -- elicited highly personal conversations, sharp comments and campus protest. In frank discussions, ugliness, racist undertones and deep cultural mistrust were exposed.
Honest exchange is the only way forward amid such controversies; different perspectives and experiences, even if they cause resentment in the short run, must be uncovered and understood if we hope to expand the bounds of empathy. Unpopular views must get a hearing in the classroom. Professors are obligated to foster a setting where students feel comfortable airing their most deep-seated fears and prejudices -- which may not be looked on kindly by others.
Guns in the classroom threaten this dynamic. Will students feel so safe and free when surrounded by other students who may be, secretly, arms bearers? Will they feel emboldened to take moral and political risks? Will they feel inclined to air potentially offensive views? I doubt it.
In fact, the prospect of guns in the classroom is more likely to cause professors to keep the conversation tepid and avoid certain controversies; everyone else will watch what they say, how they say it and to whom. This would be quite the opposite of the open and transformative exchange that universities have made it their mission to offer.
There is a further point. As we saw in the aftermath of the Ferguson and Staten Island police incidents, and earlier with the Occupy Wall Street movement, university campuses are places where political protest takes root. Perhaps colleges are not quite the haven for political protest that they once were -- like, say, in the 1960's. But universities have traditionally been places where students practice protest -- where they practice articulating and voicing political concern, and engaging in productive, demonstrative assembly. Sometimes the protest tactics they practice are aggressive, and push the envelope. Again, I would say, this is how it ought to be on campus -- it hearkens back to universities’ role as political incubators and testing grounds.
But guns are noxious in an atmosphere where people will experiment with risky methods of protest. To that extent, guns on campus may well kill such protest.
Guns may provide a basic kind of bodily and personal safety. This is the recurring argument put forth by campus carry proponents. This argument is dubious at best. But this much is clear: guns do nothing to help universities attain the kind of safety they desire and need -- the safety that enables intellectual and political exploration. Guns by their very nature dampen speech -- they chasten it. Colleges simply cannot tolerate them.
Firmin DeBrabander has writtenDo Guns Make Us Free?to be released by Yale University Press in May. He is also a professor of philosophy at the Maryland Institute College of Art.
Although these sound bites slight the seriousness of their subject, Cuomo’s critics raise a fundamentally important question: When low- and middle-income students are burdened by tens of thousands of dollars of debt, how can government support for college prison programs be justified?
And the issue matters not only in New York State, where Cuomo’s proposal has captured public attention, but nationwide, where the idea of promoting college education in prisons is mostly ignored by politicians fearful of the kinds of attacks Cuomo is receiving.
We agree that any argument for funding college courses and/or degrees for prison inmates must reckon with the reality of the financial pressure on students who incur onerous college loans only to face an uncertain job market. In New York State, 6 out of 10 college seniors graduate with debt averaging $25,537, a reality not lost on some of our students in the Cayuga Community College-Cornell University Prison Education Program. Many men in our program have sons, daughters, nieces and nephews on the outside who are struggling to pay their own college loans.
That said, approaching college programs for prison inmates as a matter of “them or us,” the middle class or the undeserving poor, distorts what is at stake. This happened before. In the mid-1990s, Congress eliminated the use of federal Pell Grants for college programs in prison in response to critics who claimed that they drew resources away from worthy young men and women who were struggling to pay their way through college.
That was misguided then, and it remains so now.
First of all, the cost is relatively small. Governor Cuomo has proposed 10 programs, each with about 100 students, at a cost of $5,000 per individual that totals about $5 million. Compare this to the financial support available to New York college students more generally. In 2013, close to $2 billion in federal Pell Grants were disbursed to about 97,000 students in New York State, a figure that does not include a vast array of other federal and state as well as private scholarship and loan money available generally to students in New York’s two- and four-year colleges.
Second, the us-vs.-them frame is blind to the crime reduction and tax benefits that even a small college-educated prison population can deliver. College programs lower the incidence of crime both inside the prison and beyond its walls. Facility superintendents are usually eager to have college programs. A good discipline record is required to join and remain in the program. In those facilities with college classes, the incentive for staying out of trouble rises sharply.
When college-educated individuals are released to the street, recidivism drops dramatically. The Bard and Hudson Link prison education programs record low single digit return-to-prison rates of their students and graduates. A careful, synthetic analysis of multiple studies done in Ohio reports college as contributing to a one-third decline in reincarceration.
Even under conservative assumptions, the program will pay for itself and more. Assuming a $5 million cost, the release of no more than one-tenth of the 100 students in each of the 10 graduating classes, and recidivism rates of not more than 25 percent (much above the single-digit recidivism rate that New York State’s college programs currently experience), the savings during the first year are close to $5 million. Compounded over many years, they are substantial.
Third, it would be a mistake to see the benefits only in quantifiable monetary terms. Many student recipients of a college education behind bars play a role in urging young members of their own families to stay in school, to work hard, and to consider college. On returning home, many of these former students become passionate mentors of younger adults who face the same choices they once did. And the “us-them” divide is blurred still further in that many prison students become us returning to OUR families, our neighborhoods, our workplaces, and our communities.
We ask that voters and our elected representatives act on the proposition that all New Yorkers – and all Americans – are better off by ridding ourselves of the legacy of binaries that force us to choose between the morally pure and the undeserving poor and by implementing public policies that reflect a commitment to provide education free of any racial, class, or moral litmus test.
Glenn Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. Mary Fainsod Katzenstein is the Stephen and Evalyn Milman Professor of American Studies at Cornell University.
I dreaded meeting with Virginia Tech student Seung-Hui Cho in fall 2005. Though he had not made overt threats, his manner and affect seemed to be at odds with his whispered claim that he was being satirical when he wrote an accusatory poem about his classmates. But I was serving as chair of the English department at the time so it was my responsibility to deal with troubled students.
Eighteen months later, when Cho stormed the campus, killing 32 students and faculty, I realized how great the risk had been. And now, after Sandy Hook, Wayne LaPierre of the National Rifle Association and others are suggesting that our response to threats like these should be to arm teachers. Some teachers agree and are arming themselves for school. Legislators in some states are trying to make it possible for faculty members at public colleges and universities to arm themselves on campus.
Teachers in Harrold, Texas, for example, have been permitted to carry weapons since 2008; and the March 2012 State Supreme Court ruling in Colorado means that those with a concealed carry license have the right to bear arms on the University of Colorado campus, though the university instituted new rules banning guns in dorms. Other states have similar provisions. Given the latest tragedy in Connecticut, this issue will be an even more contentious one in the future.
Although I support an increase in the number of resource officers on our campuses (i.e., trained members of law enforcement), particularly as we already have uniformed officers in about a third of our schools, and campus police and threat assessment teams working effectively with educators in many of our colleges, arming teachers in schools or colleges is a bad idea.
This conclusion is not based on a naïve romanticization of American education or an underestimation of the threat. I knew Cho could carry whatever he wanted in the backpack he planted emphatically at his feet when he sat down in my office. I knew his silence could be the silence of excruciating shyness or the kind designed to be menacing. There were times when his anger seemed palpable; his agony vengeful; his misogyny apparent.
At what point, however, does a professor draw a weapon? In her office? In a packed classroom? When the student-suspect reaches down to get something from his backpack? At what point does a perceived threat become an actual one? How many mistakes are we liable to make, and at what cost? How often will we be tempted to demonize difference because it scares us?
Were Cho to have stormed into my office, guns blazing, wearing his customary blank expression, his sunglasses and baseball cap obscuring his face, what good would a gun have done unless I already had it at the ready? If he had been armed with a 9mm Glock — one of the weapons he used 18 months later in his attack on a dorm room and classrooms at Virginia Tech — would I have needed a semiautomatic as powerful as his to have had a chance of defending myself and my staff? If he’d had about 300 bullets, as he’d had when he launched his attack on the campus, would I have needed a similar cache in my office drawer?
Should teachers’ guns remain loaded in their desks at all times, or should they be carried in handbags or holsters? Many of these weapons are heavy and difficult to conceal. How would teachers disguise the fact that they are packing heat from their students? How often would a nervous teacher misinterpret someone’s gesture and discover, too late, that it isn’t a gun he’s pulling out from his backpack after all? It’s the novel he’s written and wants her to read.
Many things are not made manifest to us before guns are drawn, even though we may suspect something is deeply amiss. In 2005, two years before his rampage, Seung-Hui Cho was still a student, not a student-shooter. He was still willing to seek help, still hoping to become a novelist. He was angered when I repeatedly urged him to go to counseling, but he also realized he needed to go. He sought out help, as he’d told me he would. Tragically, he was not able to get the counseling and medication he needed, even though he was later ordered by a judge to receive outpatient treatment.
Shootings like the ones at Columbine, Virginia Tech, and Sandy Hook Elementary — reside at the intersection of many thorny, often competing issues including gun violence, accessibility to long-term mental health treatment, privacy laws, and an individual’s civil rights. And though common sense tells us we need more security in our schools, we can’t blast our way to a solution.
College professors and K-12 teachers are not law enforcement officers. It’s our responsibility to notice students who are seriously troubled and bring them to the attention of professionals trained to respond in crisis situations, which is why I reported Seung Hui-Cho to various units on campus. In cases where there is no record of violence, however, even the most experienced teachers, counselors, and law enforcement personnel cannot easily predict whether or not a threat is imminent. But we can detect extreme anguish, consuming loneliness, and unbridled anger in young people and try to intervene before these become toxic.
The opportunity for meaningful intervention on the part of educators is in the years, months, and days before the gun is drawn. And though some of us will try and fail, the period leading up to a tragedy like this is still the time when peaceful intervention is most likely to succeed.
A lone teacher should never be asked by the NRA or anyone else to use a lethal weapon to save her students. The chance of failure is far too high, the cost far too great. Teachers and students must be empowered by society to learn together in peace. We have a right to expect this, and a duty, as educators, to demand it,