Office of General Counsel
Review of Robert Bickel & Peter Lake's
"The Rights and Responsibilities of the Modern University+"
Reviewed by Kevin A. Cranman* and Paul J. Ward**
Professors Robert D. Bickel and Peter F. Lake, in their book The Rights and Responsibilities of the Modern University,(1) provide a valuable treatise on the history, evolution, and future vision of the application of law and policy to assuring a safe environment in higher education. It is not a book geared solely for lawyers. The authors include balanced legal references with the text and provide a book that serves a broad audience of university administrators, faculty and policy makers, as well as legal practitioners and scholars. It is a book for those who serve the higher education community, who want to understand where higher education law has been, where it is now, where it is heading, and where it needs to go to encourage safe, and thus, successful education. Providing background, analysis, and personal dedication to the field, the authors present decision and policy makers with necessary information to understand the landscape, address evolving and complex issues, and plan for the future. University attorneys and administrators alike should read, discuss, and refer to this work in managing and improving upon everyday matters and long-range goals.
Though other solid works have addressed higher education law and policy(2) and the incessant growth of tort litigation involving higher education,(3) this book takes a broad, long view - from past to prologue - of what may seem to be a narrow issue: who is responsible for assuring a safe higher educational experience? Presenting the premise that an "unreasonably unsafe learning environment" compromises and undermines the educational experience itself, the authors lead us to consider how broadly this issue affects students and institutions alike. In other words, if you're not safe or don't feel safe, you may not learn as well. Addressing safety issues will provide improvements for the students (better learning experience and environment) and for the institutions (better reputation; less liability; clearer conscience having done "the right thing"). Indeed, university attorneys and other university administrators(4) evaluate and handle many issues;(5) however, Bickel and Lake bring us back to focus on a seemingly simple, yet apparently oft overlooked, aspect of campus life: safety.
Much like any other type of policy change or implementation, we must consider the issues, cost allocation, and other factors in determining whether to encourage a change. Further, changes made today may not yield results for some time into the future.(6) Instead of viewing campus safety as a peripheral aspect of higher education, Bickel and Lake focus on it as fundamental to the educational process. Years ago, our nation recognized that children who were not properly fed often under-performed academically in grade school. The nation responded with national policies implemented locally. Today, feeding children so they can focus on learning and not on hunger is a regular part of the educational process. Similarly, Bickel and Lake's historical and philosophical perspective guides us to consider the correlation between improved safety and an improved educational experience. With that perspective, we can assess campus safety as an issue core to the educational process on a general level and apply improvements on a specific level at each of our institutions. Their Facilitator University legal paradigm, described in Chapter VI, fairly balances university and student responsibilities for student conduct and safety. The authors clearly believe it may turn around the alarming trend in student injury cases.
In addition to being scholarly and useful, the book is also important because it contains an ingredient not always included in a scholarly work: true dedication to and care for the subject matter, higher education and the law's impact on this vital element of society. On his law school home page, Professor Bickel opines that law is too often viewed, taught, and applied too narrowly; that we need to balance doctrine with practice; that we need to "examine how the law affects people."(7) He and Professor Lake present the intellectual elements of law with the lofty goal of improving higher education in a readable, helpful guide. Because they care about the law and about higher education, they have provided us with a guide so that we can use the law as a tool to improve higher education and the collegiate experience. Also noteworthy is that the authors are not without good senses of humor, as they provide meaningful references to "Animal House,"(8) the "quintessential" comedy about college life, allowing readers to recall a not-so-interactive administration-student model with aberrant behavior adversely affecting the student population, the administration, the institution, and the townspeople (double secret probation notwithstanding).(9)
If we accept the premise equating unreasonably unsafe learning environments with insufficient learning environments posited on the first page of the Bickel & Lake book (and the writers of this review do as well), we can use the work to understand the history, current status, and future plan of the rights and responsibilities of the modern university. Working as "two people who teach torts,"(10) the authors, both with extensive experience in higher education law, introduce the issue of campus safety and attendant responsibility for managing these issues.(11)
In Chapter I, an overview, the authors introduce the basic causes of campus danger; the complex and convoluted history of university law; and the pre-1960s application of the in loco parentis doctrine and its development as legal insularity for universities, providing few, if any, rights for students. They continue with the replacement of in loco parentis with (some) constitutional rights for students in the 1960s and 1970s and, consequently, some accountability for universities. They then focus on the divergence of the university and students under the "students' rights" model, called the "bystander" era by the authors, during which some courts rejected university liability in favor of placing a stronger duty on students to exercise care for themselves with their new found freedoms. The "duty - no duty" approach led to uncertainty in the law, and hence, in policy making and implementation. In other words, without clear direction from the legislature or the judiciary, those on the front line are not sure what to do. The authors explain that the use of "duty," which once seemed to favor universities in liability cases, has more recently favored plaintiffs. Still, the authors explain that the court cases yield more confusion than helpful direction. Chapters II through V address In Loco Parentis, the 1960s Civil Rights Movement and Death of In Loco Parentis (rise of constitutional rights for students), the "Bystander" university and "duty - no duty" period, and the current duty era. In Chapter VI, they offer their view of a balanced learning environment with a focus on shared responsibility: The Facilitator University.
Chapters II through V provide interesting and important history to the current status and good background for their Facilitator University. Chapter II discusses how in loco parentis protection (which was often synonymous with insularity from liability for universities) began as a delegation (often absolute under English law) of power over the child from the father to the educators. Early in loco parentis gave universities wide latitude to take action concerning the physical and moral welfare of students, unless such action was unlawful or against public policy. The authors point out that in loco parentis addressed a university's powers over students, not duties towards them(12); it was used to control, not to protector assist.(13) The authors describe how this concept for control was used in conjunction with an immunity from suit, so the university enjoyed rights to impose, but few obligations to uphold.(14) During this era, most universities were immune from suit: either under governmental immunity for public universities or under a charitable immunity for others, including private universities (often not even serving charitable functions). In other words, during this period, students had few, if any, rights; universities had the right to control; and society, via the courts, imposed little, if any, liability upon universities for harm suffered by others.
Chapter III addresses the transition from in loco parentis (and attendant insularity from liability) when the Civil Rights movement of the 1960s and related social initiatives took hold in America. Starting with Dixon v. Alabama State Board of Education,(15) in which the Fifth Circuit Court of Appeals overturned the lower court's decision not to undertake judicial review of a university's decision to expel a number of black students, ostensibly for participating in desegregation activities, without a hearing, courts began to look differently at higher education legal issues: "fundamental due process. Notice and some opportunity"(16) to be heard at public universities became required, and contractual impositions of universities were "subject to an irreducible minimum of constitutional rights inhering to the student."(17) Thereafter, public universities no longer wielded unfettered control and discipline rights. The connection of higher education to public interest; the new consumer model in which student-consumers no longer accepted "take it or leave it" control and discipline models; and the argument against private school students accepting fewer rights, especially in light of the cost differential, all led to greater rights for private school students as well.(18) Though, the authors write, by the early 1970s, in loco parentis was "constitutionally and contractually, publicly and privately" dead, "the questions of apportioning risks and responsibilities regarding student physical safety" remained.(19) In other words, progress was being made, but clear answers were not at hand.
The "Bystander" university, termed by the authors referring to the tort law concept that generally one is not obligated to act to assist another, followed, as courts used "duty - no duty" analyses to, for the most part, conclude that universities were not liable to students for harms they suffered. Much of this approach was grounded in the revolutionary rights earned in the 1960s and 1970s, as universities argued (and courts agreed) that if these young people, previously controlled (and "protected") by universities under in loco parentis, wanted rights and freedoms, then they would need to be responsible for their own safety and could not blame the university for bad things that happened to them. Universities seemed, for the most part, to enjoy some of the previous insularity, although some cases imposed liability upon universities for harm to students; however, the "bystander" era allowed universities to behave as if they had little or no duty to protect their students.
Chapter V addresses the current state of affairs of the student / university relationship. The authors explain that duty issues still remain with courts parceling duty analysis into four main categories: premises / landlord relationships; the control of dangerous people from causing harm to students; responsibility regarding student activities (laboratory safety, field trips, sport activities), and student alcohol use.(20) The authors analyze each of these categories, showing some of the decisions within each one. This chapter is interesting and valuable because the authors provide case references, old-fashioned professorial analysis, and common-sense commentary.
In Chapter VI, the authors turn to their proposed model: The Facilitator University. Using helpful tables and text, the authors analyze the preceding eras as they look for the strengths in each model. Coalescing the strengths from historical practices and cases, they offer a flexible model in which the student / university relationship will, within reasonable parameters, bend to meet individual needs. The university and the student accept obligations to act reasonably, and both retain rights and expectations of the other. This Facilitator model seems to provide an educational model itself in that students (and, presumably, university administrators) can learn from the interaction and from working with each other to address problems and goals. The concept provides ongoing opportunities as people, especially students who are at college presumably to learn how to problem-solve, interact with others and work within the flexible model to seek a mutually agreeable pareto-optimal solution to issues. Inherent in this approach is that the actors work together, recognizing their responsibilities to the community, to the model, and to each other. Universities no longer have expansive control over students, must provide reasonably safe environments, and must address other related obligations. Students must behave reasonably for their own well being, and, doing so should advance their learning experience. The various types of campus relationships (e.g., landlord / tenant, dangerous people, activities, and alcohol use) will each offer situations that need to be addressed, but hopefully will also provide opportunities for student and administrators alike to identify new and different ways to solve the problems facing their specific institution and higher education as a whole.
The authors close their book by providing some examples for thought and discussion, based on cases and experiences, allowing readers to begin implementing their newly-acquired Facilitator University skills. The illustrations which are examples of how the facilitator model functions include the following: student drowns during an extra-curricular outing with a student environmental club; participant in a sports camp operated for elementary and secondary school aged-children separates from group and is injured by falling into a campus construction excavation project; and student residing in a residence hall is assaulted by a criminal intruder who gains access because a building repair was delayed for an unreasonably long period of time. The ten illustrations in the Appendix will also serve as excellent case studies in the classroom.
This book lives up to its title. It is a significant contribution to the law of student safety. In sum, it reconciles the best advice of a university lawyer with the best instincts of an experienced university administrator.
Notes
+ This book review appears in the Fall 1999 issue of The Journal of College and University Law. Published quarterly in cooperation with the Notre Dame Law School, JCUL is the only national law review devoted exclusively to higher education legal concerns.
* Kevin A. Cranman. During the preparation of this article, he served as an in-house counsel to the Georgia Institute of Technology. He has since joined the BellSouth Intellectual Property Management Corporation as Director of Contracts. B.A., University of Georgia 1990; J.D., University of Georgia 1993.
** Paul J. Ward, Vice President for Legal and Government Affairs, General Counsel & Secretary to the Board of Trustees, Southern Methodist University. B.S. Eastern Illinois University, 1971; M.A. Eastern Illinois University 1974; J.D. Southern Methodist University 1975.
1. Robert D. Bickel & Peter F. Lake, THE RIGHTS AND RESPONSIBILITIES OF THE MODERN UNIVERSITY (1999).
2. See William A. Kaplin & Barbara A. Lee, THE LAW OF HIGHER EDUCATION, (3d ed. 1995 & 1998); Michael A. Olivas, THE LAW AND HIGHER EDUCATION: CASES AND MATERIALS ON COLLEGES IN COURT (2d ed. 1997); Harry T. Edwards & Virginia Davis Nordin, HIGHER EDUCATION & THE LAW(1997).
3. See, e.g., William P. Hoye, Tort Litigation in Higher Education: A Review of the 1997 Judicial Decisions, 25 J.C.& U.L. 257, 257-292 (1998).
4. We select "other" to emphasize the importance of university attorneys being part of the administration team, working together with others to assess and address campus issues, such as safety.
5. See Nancy L. Thomas, The Attorney's Role on Campus, CHANGE, May-June 1998, at 35, 37 for a thorough review of campus issues handled by university attorneys. Examples include contracts and other documents, employment and labor matters, affirmative action and nondiscrimination, student affairs, torts, intellectual property, research issues, health sciences, administrative law, policy administration, business issues, and others. See especially the chart and discussion on p. 37. See also, Roderick K. Daane, The Role of University Counsel, 12 J.C.& U.L. 399, 411-414 Appendix A (1985)for an Illustrative List of Subjects Handled.
6. For example, on July 10, 1999, President William J. Clinton, being interviewed on television during half-time at the Women's World Cup soccer championship, referred to the importance and impact of Title IX to the current opportunities for women in sports.
7. "Teaching Fields, Courses" (last modified Sept. 3, 1999) http://www.law.stetson.edu/faculty/bickel/default.htm.
8. ANIMAL HOUSE, (Universal Studios, 1978).
9. See BICKEL & LAKE, supra note 1 at 22."Dean Wormer would be free to enforce "double secret probation" and play host to honor council proceedings that were less than fair," referring to the probation placed upon the Delta house fraternity of which the fraternity members were unaware, yet they remained subject to suspension or expulsion. Idat 33. Recall that in Animal House, the final battle for the soul of Faber University spills into the streets of the town referring to a scene in which the Delta house fraternity, having been punished by a conspiracy of Faber administration and other students, takes over a parade, and, hence the city and the university. See id. at 116, referring to students who create danger for self and others regardless of safeguards as expressed in the John Belushi character, who was known for dangerous pranks and other buffoonery: "Some of the most senseless acts of Bluto Blutarski-style self-inflicted injury inhabit university tort caselaw." Id.at 195. "As Dean Wormer observed in Animal House, drunk and stupid is no way to go through life," addressing the facilitator model under which the facilitator college does not "simply give consumers [students] what they want" (i.e., parties, fun, and games without guidance, direction, and responsibilities).
10. Id. at x. (referring to their joint discussions and collaborations in a major field they share).
11. Professor Bickel has been involved in higher education law for over 30 years, having served as general counsel to Florida State University before beginning his teaching career at Stetson University College of Law, where he founded, developed, and chairs the National Conference on Law and Higher Education, now in its 20th year. Professor Lake, a professor at the Stetson College of Law since 1990, has spoken and published on a variety of law and higher education issues including, in particular, alcohol liability.
12. See id. at 19, 20. "Just a few years before the revolutionary war, Blackstone commented on English law to the effect that: the father 'may also delegate part of his parental authority, during his life to the tutor or schoolmaster of his child; who is then in loco parentis, and has such a portion of the power of the parent committed to his charge . . . In loco parentis was thus, in sum, the delegation of a father's right to discipline." In addition: "What the father delegated was the power to restrain, correct, even beat." Id. at 19, 20.
13. See id. at 17. "Protecting student safety was not a feature of in loco parentis doctrines as applied to universities." Id.
14. See id "In loco parentis promoted the image of the parental university and insured that most problems were handled within the university, by the university. . . [In loco parentis placed] a blanket of security and insularity around university culture such that disputes were not justiciable. . . Under the blanket, a university was free to exercise disciplinary power - or not - with wide discretion and little concern for litigation." Id.
15. 294 F.2d 150 (5th Cir. 1961).
16. BICKEL & LAKE, supra note 1, at 38.
17. Id. at 39 (emphasis in the original).
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