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CHOICE: A Decision-Making Strategy for University Lawyers and Administrators Nancy Tribbensee^1 The rising presence of alcohol, drugs, and guns on campuses has increased the threat of assault and other serious crime. Hate crimes and tragic incidents of violence at schools across the country have fueled concerns about campus safety. These factors have created an uncertain environment for university administrators. A dangerous by-product of this environment and the attendant litigation against universities is the temptation to sacrifice elements of our academic mission in favor of avoiding liability and lawsuits. By distorting administrative priorities in favor of risk avoidance, universities may miss opportunities to provide students with experiences for non-traditional learning. On a positive note, these events also create an opportunity for administrators and their lawyers to work together to promote a safe learning environment without sacrificing either safety or valuable learning experiences. In their recent book, The Rights and Responsibilities of the Modern University^2 , authors Robert Bickel and Peter Lake trace the history of law and policy relating to liability for campus safety. They advocate a model of a “facilitator university,” in which students and institutions actively manage risk and share responsibility for campus safety. Bickel and Lake contemplate an active role for university administrators, not merely a defensive or reactive one. They describe the facilitator as “a guide who provides as much support, information, interaction, and control as is reasonably necessary and appropriate in the situation.”^3 The facilitator paradigm encourages a relationship between administrators and their lawyers that empowers administrators to do their jobs and assumes that “an unreasonably unsafe learning environment is not an appropriate learning environment.”^4 The goal of this paper is to propose a strategy for collaborative (^1) Nancy Tribbensee is Deputy General Counsel at Arizona State University, where she has had the privilege of working with many excellent student affairs administrators who have shown great patience and professionalism in her training. (^2) Robert D. Bickel and Peter F. Lake, The Rights and Responsibilities of the Modern University , 1999. (^3) Id. at 193. (^4) Id. at ix.
decision-making designed to assist in evaluating what is “reasonably necessary and appropriate” in an individual situation, to promote an environment suitable for learning. Given that we cannot eliminate the possibility of liability, we must then be prepared to make difficult choices. Sometimes we have the luxury of time to reflect on policy changes. Other times we feel pressure to respond immediately, and without the benefit of all of the facts, to an emergent situation. Often we are forced to select among alternatives that each includes some risk. Following their synthesis of decisions involving injuries on campus, Bickel and Lake identify seven factors courts rely upon in determining whether to hold colleges and universities responsible for student injuries. These factors are: (1) foreseeabilty of harm; (2) nature of the risk; (3) closeness of the connection between the college’s act or omission and student injury; (4) moral blame and responsibility; (5) the social policy of preventing future harm (whether finding duty will tend to prevent future harm); (6) the burden on the university and the larger community if duty is recognized; and (7) the availability of insurance.^5 Courts use these concepts to evaluate potential liability after an injury or serious harm has occurred. University administrators need to use this information to develop a method for affirmative decision-making, to compare possible course of actions and to inform policy considerations well before injuries occur. Administrators and their counsel need to develop strategies for effective and efficient decision-making, with the mission of the institution in mind, to implement the vision of the university as facilitator. To this end, I suggest that the following six elements, represented by the acronym “CHOICE,” be included in any decision-making strategy: C ommunication regarding the mission or goal to be achieved; (^5) Id. at 202.
consciously and sometimes implicitly, the administrator will have in mind both an immediate objective as well as how this decision will relate to larger programmatic goals. Identifying a goal becomes more difficult, and more important, if internal goals have recently changed, are under review, or conflict with the goals of other interested parties. The next step, and one that may sometimes be overlooked, is to communicate these goals (including any perceived uncertainties or conflicts) to legal counsel and other relevant players in the decision making process. Sometimes, in the process of articulating a goal to another party, the goal itself can be refined, questioned or clarified. An appreciation of context and purpose is necessary to the development of an informed and relevant legal opinion. An administrator seeking legal advice may mistakenly assume that the lawyer already understands the goal or worse, may assume that such an understanding is not relevant to the process. Similarly, lawyers may incorrectly assume that administrators are unwilling to accept even a modicum of risk, and may offer advice that is unnecessarily conservative. The appropriate time for this communication is when decisions are being considered and made; it can’t wait until after an injury or other unintended consequence has occurred. The point can be illustrated by comparing the two following inquiries from an administrator to a lawyer:
- We are considering a proposal to move all fraternity housing off campus. Do you see any problems?
- We would like to fundamentally change the relationship between the university and local fraternities. We want to promote greater self-governance while at the same time strictly enforce existing alcohol and hazing policies. One component of this change involves eliminating on-campus fraternity housing. What legal concerns should we take into consideration? The second scenario acknowledges the importance of the context in which the decision is being made and conveys an appreciation of the risk involved. Administrators who force their lawyers to analyze the question in context will encourage lawyers to provide more usable information. Once the context is clear, the role of the lawyer shifts from one of blessing or thwarting the proposed decision, to that of a collaborator in developing and analyzing options. The burden here is on both lawyers and
administrators. Lawyers need to ask questions to elicit necessary information and administrators need to be sure their priorities are understood. Policy statements are an important mechanism for the identification and communication of university goals. These statements can guide university action, can provide information to the campus community and can play a pivotal role in litigation. At one time, universities reviewed policy statements in a negative light: that is, to be sure that they were not creating unnecessary duties to students. An alternative perspective, and one more aligned with the facilitator model is to review policies periodically to confirm that they accurately reflect realistic university goals. An understanding and appreciation of the relationship between the university’s underlying goals and the circumstances involved in the plaintiff’s injury can influence the outcome of litigation. In Bloss v. University of Minnesota Board of Regents ,^6 a student sued the university for injuries she sustained when she was assaulted by a taxi cab driver during her participation in a university-sponsored study abroad program. Students in the program lived with host families in Mexico and had to arrange their own transportation between the host’s home and the educational center and for independent excursions. The plaintiff was raped by a taxi driver on her way from the host family’s home to a meeting with other students. She sued the university, alleging that it was negligent in its failure to secure housing closer to campus, that it should have provided transportation to and from campus, that it failed to warn her adequately against the risk and that it failed to protect her from foreseeable harm. The university denied that it was negligent and argued that it was immune from suit under a state law that protects the state from suits for performing or failure to perform a discretionary duty. The Bloss court did not begin with any presumption of liability on the part of the university, despite the serious injuries suffered by the student: The litigation appears to be premised on a belief that the University is the guarantor of the student’s safety. Unfortunately, this is neither physically possible nor realistic. The student has suffered a grave injury, but the gravity does not create liability.^7 (^6) 590 N.W.2d 661 (1999). (^7) Id. at 666.
A valuable source of guidance concerning a pending decision will be information about what the university and other schools have done in similar situations. Mining institutional memory, contacting colleagues at other institutions, and taking advantage of professional listservs may provide information about potential risks and benefits. This process may also reveal alternative approaches to consider. Risks on campus arise from programmatic decisions as well as individual ones. Student affairs and academic administrators work to create new opportunities for students, through student organizations, field trips, internships, volunteerism, and creative housing arrangements. Each new program is designed to foster student independence and development and each program introduces new risks to manage for the students who participate. Evaluating program changes in their historical context, by asking what we used to do and why we are changing, can identify potential risks and solutions. Changes in the student body also indirectly account for increased risks on campus. More minors attend classes and live in campus housing. We are also seeing more serious mental illness as community resources disappear. As the perception of risk and danger grows, the discussions regarding the potential for university liability become more common. As university administrators, we must make an informed choice about the role of potential liability in decisions regarding campus life without eliminating or overshadowing our goals. An understanding of similar events can be especially useful in evaluating the need for additional security. In addition to establishing the need for additional police and security personnel, past experience may encourage institutions to require restrictions on admission (e.g., prohibit parties that are open to the public or limit the number of attendees), require bracelets to identify students of legal drinking age, install metal detectors at entrances or surveillance cameras in parking garages. A review of history may also help to put the problem in perspective. Following media reports of school shootings, many schools, parents and students believed that the threat of being shot at school had skyrocketed. State and national statistics, however, reflect more school shooting deaths in 1993 than in any year since.^12 Information may help to refine the problem to be identified. Certainly many people believe the risk of (^12) National Center for Education Statistics.
elementary and secondary school shootings has increased dramatically and this perception is important to address. The statistics do not suggest that we have a problem with increased school shootings, however. We may instead want to identify and address problems students are more likely to confront. Another area in which historical perspective may be instructive is in the area of alcohol use and under-aged drinking. Institutions and researchers have questioned media claims that more college students are drinking, and that students who drink are drinking more. No one is questioning that alcohol plays a role in many cases of catastrophic injury on campus. Historical information about actual use patterns may, however, be necessary to assist administrators to develop effective interventions. If resources are assigned based on a mistaken belief about shootings at school, or student alcohol use, we will not adequately address perceived problems. Moreover, may miss the opportunity to address very real and dangerous problems within our reach. An understanding of judicial responses to similar cases can also provide useful information for administrators. Information about recent cases will be helpful, however, only as a guide. Legal principles that fail to resonate with administrative principles are unlikely to be accepted or internalized. For example, “no duty” cases that suggested that universities could escape liability by not encouraging any student expectations and by not assuming a duty to students offered little to assist administrators. Advice about how not to relate to students is antithetical to most student affairs administrators. Two recent decisions illustrate the transition from findings of “no duty” for universities to protect students to reliance on traditional legal arguments to find such duties. Gross v. Family Services^13 and Knoll V. University of Nebraska^14 each involved a student who was injured off campus. In each case, the trial court agreed with the university that it did not have a duty to protect the student. In each case, the student appealed and the appellate court found that the university did owe a duty to the student. Both cases were sent back to the trial courts for determination as to whether the university’s duty was breached. (^13) 716 So.2d 337 (1998). (^14) 258 Neb. 1, 601 N.W.2nd (^) 757 (1999).
the dangers of hazing. The trail court agreed and granted summary judgement for the university on the basis of its finding that the university had “no duty.” The appellate court reversed this finding and found that the university owed a duty to the student to take reasonable steps to protect against foreseeable acts of hazing. It sent the case back to the trail court to determine whether, given the existence of this duty, the university breached its duty and if so, whether the breach was the proximate cause of the student’s injury. This case has been the source of much discussion across college campuses. Some have seen the decision as very troubling, because it reflects the trend in recent decisions to hold universities liable for student injuries. (Of particular concern in these discussions is that the injuries in this case occurred in private, off-campus housing.) In this case, the court focused on the university’s knowledge of pledge events involving abduction and of dangers inherent in fraternity hazing, the university’s knowledge of prior criminal conduct by members of the fraternity involved, and the university’s failure to enforce prohibitions against hazing, alcohol consumption, and physically abusive behavior. The Knoll court applied landowner liability law to the relationship between a university and its students. It found that the knowledge of the risk of injury from fraternity hazing defined the duty of care owed by the university to its students. The appelate court did not decide whether the university met this duty of care or if the duty was breached, whether the breach was the proximate cause of the harm. The appellate court referred the case back to the trial court for this determination. Knoll can serve to remind us that universities must now focus on building relationships with students in which we share responsibility for safe campus environments. We cannot argue that students assume the risk of serious injury by joining fraternities. We cannot ignore past hazing incidents or allow a permissive environment in which future hazing will be tolerated. We need to “use reasonable care to prevent foreseeable risks.”^17 One of our best tools is education. Administrators can educate themselves, students and lawyers about options and associated risks. In developing strategies to (^17) Bickel and Lake at 203.
manage risks, we can reasonable expect each participating party to bear some responsibility for campus safety. Advice that is limited to cautionary notes based on the most recently litigated case can easily create concern over past practices but may not offer much to inform future decision-making. No student affairs administrator has chosen this profession to look for ways to avoid creating student expectations or to avoid assuming a duty to students. This is why student affairs administrators often respond with a puzzled expression when receiving well-intentioned but ultimately useless (or unusable) advice from their lawyers. Options or alternative ways to achieve the articulated goal Once we have identified a positive goal (e.g., “to create a new learning opportunity” rather than “to avoid liability”), and reviewed related past experiences, the next step is to identify practical alternatives to approach or achieve the desired result. For each alternative, we need to further identify the associated benefits and risks. In addition to costs of effort and money, we may find in some cases that the approach necessary to satisfactorily reduce risk will eliminate the potential benefit. Bickel and Lake^18 use the phrase “bystander university” to refer to the era in which universities successfully defended suits by arguing that they owed no duty to students. One by-product of this era is that administrators and their lawyers began to reject good proposals that threatened to introduce new duties. For example, faculty advisors to student groups began to suggest that they not attend group activities to avoid creating a connection between the activity and the university in the event that something went wrong. This negative strategy fails to account for the positive influence an advisor may be able to exert, including the possibility that harm may be avoided by virtue of the mere presence of a responsible adult. In light of these recent decisions, we should not approach issues of risk management by asking whether we have a duty. Instead student affairs administrators and those who advise them can evaluate potential choices for action by asking what level of care would be appropriate if one were to assume that a duty exists. We can analyze a number of different types of risk using this formula, including risks of a student’s own (^18) Bickel and Lake at 49.
regulations. This may lead to a related decision about whether a written agreement needs to be in place or a may inspire a review of existing agreements. Information about the availability of insurance and indemnification may allow administrators to consider shifting risks, where appropriate. One question will be the extent to which a proposed event or activity is covered by the institution’s insurance. Another consideration is whether another party should insure the event. In general, it makes sense to allocate risk to the parties in the best position to control the risk. In some cases, this will mean shifting risk by requiring insurance or agreements for indemnification. Sometimes the inquiry will require administrators to discover what other events may be happening at the same time as a proposed event. Is construction planned for the same time members of the pubic will be entering campus to participate in an event? Are high school students on a recruiting trip planning an overnight stay in a residence hall at a time when university residents are planning an annual party? Are we sending a study abroad program into a region likely to experience political unrest or terrorist activity? Other decisions may require information relating to costs and expenditures. For example, one option for improving campus safety may be to initiate a service to escort students back to residence halls after late nights at the library. Related costs may include payments to student escorts, lighting enhancements, radios and other communication equipment, and carts or other vehicles. Administrators may also need additional information regarding regulations or policies surrounding the procurement of necessary personnel, goods and services for the program. Despite the reality that many administrators feel pressure to act before they are able to identify and collect relevant facts, adequate information is essential to meaningful decision-making. When immediate action appears necessary, we may want to determine whether a limited initial response will suffice until more facts can be gathered. For example, we may not be able to answer every question that arises immediately after an assault is reported on campus, but we may be able to describe the investigative process and defer a substantive response until we have more information. This avoids the problems associated with speculation and premature conclusions based only on partial
facts. It may also serve to involve interested parties in collecting information or proposing a resolution. Consultation with interested parties The information gathering process will involve consultation with other university parties. They may include persons with experience in risk management, public safety and security, student development, and public health. In addition, past practice or public relations concerns may indicate that it is appropriate to engage community members, university neighbors or even national groups in some significant decisions. University decisions are difficult for many reasons, not the least of which is that so many people can be impacted by a single decision. Decentralized administration and the multiple levels of campus life create risks that a decision that seems reasonable or harmless can have potentially disastrous consequences when combined with other unrelated factors. Early opportunities for input may avoid later conflict. A useful risk management strategy is to develop opportunities for diverse units to meet on a regular basis. Arizona State University, for example, has a Student Assistance Coordinating Committee that is scheduled to meet once each month. The committee includes representatives from counseling services, student health, disability resources, student conduct, residential life, the office of general counsel, and the department of public safety. The primary purpose of this committee is to coordinate the university’s response for students who may be experiencing (or creating) problems that involve multiple administrative areas. The committee has been a tremendous success, as it allows administrators to strategize and coordinate appropriate and consistent responses, while minimizing opportunities for students to play one unit against another. In months when we have no student matter to discuss, we may cancel the meeting or we may discuss policies that relate to recent cases. One policy currently under discussion involves the appropriate institutional response to students with eating disorders or psychological conditions who pose a threat to themselves and who are not compliant with treatment recommendations. Another ongoing issue involves minor students who live in residential housing and the need to streamline the process for obtaining parental consent in the event psychological evaluation and treatment is indicated.
