Liability for college-student welfare

Abstract

Universities increasingly are being held responsible for ensuring student safety. Though courts currently recognize that a “duty of care” does exist in certain situations, the notion that this has signaled a return to in loco parentis (“in place of the parent”)—and that universities should shy away from attempting to control student behavior as a means to avoid liability— is unfounded. As there appears to be a disconnect among court decisions, legal scholarship, and university policies—and as in loco parentis is a term often misused in the literature of education law—I will present supporting case law and legal commentary that in loco parentis is not reemerging as a liability threat. Further, I explore whether a fear of liability has handcuffed universities in enacting policies that soundly respond to the problems facing college students today, namely alcohol abuse and mental illness. I conducted a legal-historical analysis of institutional liability, tracing court decisions from the fall of in loco parentis and the “bystander” era to the current era of a reasonable duty of care. As alcohol and mental health-related litigation has become particularly troublesome to universities, I focus on those two areas of institutional liability while also exploring the corollary issues of privacy laws, information sharing, and disability law (particularly as it relates to students with mental illness). Further, I present three case studies that examine how the law is being interpreted on college campuses today as well as the new role student affairs practitioners and other university administrators have assumed in formulating policies that attempt to mitigate student welfare-related liability. Based on the legal-historical analysis and qualitative case studies, I found that courts today are more likely to rule against institutions that fail to act upon widely known problems, such as alcohol abuse and mental illness. University administrators can best mitigate liability for student welfare by expanding their knowledge of current case law and relevant student development theory, implementing effective information sharing networks, maximizing personnel resources, improving student services, reevaluating policies in light of current law, and, most of all, practicing sound professional judgment when dealing with students in crisis.