Cocktails on campus: are libations a liability?

• Author: Bendlin, Susan S.
• Position: IV. Parental Expectations, Students' Role, and the Universities' Responsibilities through V. Conclusion, with footnotes, p. 98-130

4. PARENTAL EXPECTATIONS, STUDENTS' ROLE, AND THE UNIVERSITIES' RESPONSIBILITIES

   1. Will Modern Expectations and Resulting Pressure from Parents Lead to a Return to the Concept of a Duty Based on In Loco Parentis?

      In the thirty-five years since Bradshaw, courts have echoed the firm position that the doctrine of in loco parentis no longer applies to the role that universities fulfill vis-a-vis their adult students. This Article argues that the predominant view of the past thirty-five years should remain the same with regard to universities' liability for alcohol-related incidents: The college owes no legal duty to supervise or protect adult students from voluntary intoxication. A return to the in loco parentis rationale--even if parents may wish it--is inconsistent with the true purpose and goals of higher education. (258) Parents today expect more from college administrators and staff in terms of supervision and protection than in recent decades.

      The current generation of parents has been described as "helicopter parents" because they hover over their children and are loath to leave them unattended. Even after the child reaches the age of majority, many parents still exhibit an unwillingness to relinquish control. Undergraduate deans at prestigious schools such as the University of Michigan, the University of Chicago, New York University, and the University of Washington reported that as of the past few years, parents have been contacting the schools to find out about their adult children's grades, finances, and housing arrangements. (259) It is not uncommon for parents to investigate the assigned roommates before delivering their children to the freshmen dormitories, and parents who find Facebook postings that leave a bad impression have been known to request that the college reassign the roommates. (260) Parents even get involved in disputes over grades, arguing with a professor that a B+ should have been an A-, for example. (261)

      These parents are the same individuals who grew up during the Vietnam War, earned the right to vote at eighteen, and attended college during the 1970s and 1980s. Most came of age during the peak period when university students asserted their rights as adults and rejected the idea that they needed supervision by college officials or any authority figures. It was not until the late 1960s that some colleges experimented with coeducational, open (uncontrolled access to rooms) dormitories. (262) The freedom to come and go from the dormitory rooms of the opposite gender accompanied many other freedoms and privileges of adulthood that students demanded and succeeded in obtaining. Demonstrations against the Vietnam War sparked violence on campuses such as the University of California-Berkeley, Kent State, Cornell University, and Jackson State. (263) The National Guard's shooting of four student protesters at Kent State in 1970 became a tragic, galvanizing moment in the student movement. (264)

      Now, a few decades later, these individuals are unwilling to allow their adult children to enjoy the same independence that they insisted upon as college students. Not only is this situation ironic, but it may have a legal impact on the role that college administrators play. Indeed, it may have some effect on whether courts in the future find that universities have a legal duty to protect and supervise adult students.

      It is conceivable, but not ideal, that the law may shift to represent the contemporary standards based on what current "helicopter parents" want the role of the colleges to be. Helicopter parents prefer to be directly involved in their children's lives, but if their involvement is curtailed, they expect the university to assume the role of caretaker. As parents exert pressure on college administrators to increase their supervision over the lives of students, an echo of the old refrain of "in loco parentis" undergirds some of the parental requests. Perhaps there is a cry for a return to the more protective era of the 1950s. Many families expect the university to safeguard their children, and many, if not most, regard their eighteen-year-olds as children, not adults. Nonetheless, one important mission of higher education is that students develop into responsible adults. The court's reasoning in Baldwin is sound:

      The transfer of prerogatives and rights from college administrators to the students is salubrious when seen in the context of a proper goal of postsecondary education the maturation of the students. Only by giving them responsibilities can students grow into responsible adulthood.... [and] the overall policy of stimulating student growth is in the public interest. (265) The law evolves and responds to changing social and political views. The Bradshaw case provides an example of this reflection on contemporary values when the court stated, "[t]here was a time when college administrators and faculties assumed a role in loco parentis ... But today students vigorously claim the right to define and regulate their own lives." (266)

   2. Is a University Negligent When It Fails To Enforce Its Rules?

      Parents might think that if a university has rules against serving alcohol at student events, but fails to enforce those rules, courts would find the university negligent. Precedent does not support this view. (267) The legal analysis begins with the threshold question of whether a university owes its adult students a duty to protect and supervise them at all. The answer is almost always no. A handbook provision does not create a duty on the part of the university to supervise students in circumstances involving alcohol, as noted above. (268)

      It is a bit jarring to think that a failure to enforce regulations is not negligence. One wonders why a university publishes rules if it has no legal duty to enforce them. One court spoke in terms of the university reserving the right to take action under its rules, but emphasized that the university was not obligated to take affirmative steps to enforce its handbook provisions. (269) This reasoning reflects the pragmatic position that it is simply unrealistic and overly burdensome to require colleges to monitor their students' social lives. (270) Additionally, there is a legally significant difference between nonfeasance and misfeasance. Nonfeasance, or the failure to act, has not typically resulted in liability for negligence in college alcohol cases. (271) Where nonfeasance is alleged, liability will attach only where a special relationship exists between the plaintiff and the defendant. (272)

      In addition to violating university policies, underage drinking violates state law. However, courts have stated that the fact that a student violates the law does not mean that the university has a duty to prevent that student's actions. As the Beach court explained, a student's violation of a law does not mean that a college has assumed a custodial relationship for tort purposes. (273) Perhaps a simple analogy to the criminal justice system is apt: A sheriff has the authority to arrest criminal offenders, but the sheriff is not negligent for failing to track down and detain each and every law breaker. Similarly, a university has the authority to punish students who break the rules, but is not obligated to identify and penalize every offender. A student's violation of the law may give rise to punishment, but it does not change the college-student relationship itself. (274) Absent a special relationship, nonfeasance does not lead to liability under a negligence theory. (275)

   3. How to Create a Cultural Change on Campus by Educating Students and Reducing Alcohol-Related Harm

      Students need to receive more guidance on how to drink responsibly, which is admittedly challenging because their consumption of alcohol is illegal. There is a logical leap that one must make if arguing that engaging in illegal activity can be done in a responsible manner. That said, there are educational programs that have met with success on some college campuses.

      A notable example is the social norming marketing campaign launched in 1999 at the University of Virginia. The university's campaign involved dormitory posters, educational programs, email messages, and special interventions aimed at high risk groups such as athletic teams and Greek organizations. (276) Some of the educational programs were presented by professionals, but others were presented by students. (277) The goal of the campaign was to correct misperceptions about alcohol consumption on campus and to reduce the harm related to alcohol abuse. (278) "Social norms theory" refers to the practice of introducing the subjects (students) to a large amount of accurate information about typical, normal behavior. (279) In other words, the marketing campaign was intended to educate students about alcohol use on campus in order to correct the misperception that other students drank more frequently and more excessively than they actually did. (280) The ultimate goal of the project as a whole was to teach students how to handle situations involving alcohol abuse so as to reduce the negative consequences of excessive drinking at the University of Virginia. (281) The campaign coached students on protective behaviors such as not leaving inebriated friends alone, intervening to prevent drinking and driving, asking friends not to drink so fast, having a designated driver, and eating a meal before drinking. (282)

      The effort has been fairly successful. Researchers found that the negative consequences of drinking alcohol declined markedly after students were exposed to educational messages about drinking. (283) The researchers compared the negative consequences of drinking as experienced by students during the years of the study; for example, whether a student "performed poorly on test or project." (284) As a result, the odds ratio, calculated with 95% confidence intervals, declined from .97 in 2002 to only .45 in 2006 after the...