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 parentis has 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.
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