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The influence of legal action on post-secondary policy and program decision-making

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Title:
The influence of legal action on post-secondary policy and program decision-making
Creator:
Doyle, Diana M
Publication Date:
Language:
English
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xii, 220 leaves : illustrations ; 29 cm

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Subjects / Keywords:
Student affairs services ( lcsh )
Universities and colleges -- Administration -- Decision making ( lcsh )
Actions and defenses ( lcsh )
Actions and defenses ( fast )
Student affairs services ( fast )
Universities and colleges -- Administration -- Decision making ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 217-220).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Doctor of Philosophy, Public Administration.
General Note:
School of Public Affairs
Statement of Responsibility:
by Diana M. Doyle.

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|University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
32077738 ( OCLC )
ocm32077738
Classification:
LD1190.P86 1994d .D69 ( lcc )

Full Text
THE INFLUENCE OF LEGAL ACTION ON POST-SECONDARY
POLICY AND PROGRAM DECISION MAKING
by
Diana M. Doyle
B.S., Illinois State University, 1977
M.S. Ed., Illinois State University, 1979
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy
Public Administration
1994


This thesis for the Doctor of Philosophy
degree by
Diana M. Doyle
has been approved for the
Graduate School of Public Affairs
by
t^arjorie Lewis
Ed Liberatore
y-.5^ f/
Date


Doyle, Diana M. (Ph.D., Public Administration)
The Influence of Legal Action on Post-Secondary Policy
and Program Decision Making
Thesis directed by Professor Lloyd Burton
ABSTRACT
Since the 1960s there has been a transformation in
the role played by higher education institutions and
their Student Affairs divisions due to increased
participation in an expanding legal environment. The
purpose of this research study was to explore the nature
and extent of these changes and their ramifications. The
following hypotheses were presented:
1. Within the changed higher education legal
environment, legal implications play a significant role
in the decision making process of Student Affairs
administrators in specific decision situations;
2. Relative to the changed legal environment experienced
by higher education institutions, legal implications have
figured prominently in the general organization of
Student Affairs divisions and on the specific nature of
their programs and operations.
in


Investigative methods employed included an extensive
literature review and analysis to discover the historical
and definitive events which contributed to altering the
traditional role of students, universities, and Student
Affairs. Direct data gathering strategies were used to
determine the extent of growth and expansion of
participation in the legal arena. Finally, a Likert-type
questionnaire was designed and mailed nation-wide to 500
Student Affairs Vice Presidents, Vice President and
Deans, Deans, and Directors to ascertain the significance
of the influence of legal implications on decision
making, issues, and operations.
The results showed a changing role historically due
to individuals' increased access to the judicial system
and increased assertion of students' rights. The survey
revealed that the influence of legal implications had a
moderately-high to high significance on a)the decision
making process of Student Affairs professionals,
particularly women and public university administrators,
and b)specific Student Affairs issues and operations.
These influences were viewed as positive outcomes rather
than negative consequences.
IV


In conclusion, the changed higher education legal
environment has led to new administrative methods of
operation, an expansion of the scope of institutional
legal responsibilities and liabilities, and a doubled
growth in the involvement of institutional legal disputes
with students. Within Student Affairs, concern for legal
implications plays a significant role in administrative
decision making and on the organization and nature of its
programs and operations.
This abstract accurately represents the content of the
candidate's thesis. I recommend its publication.
Signed
v


DEDICATION
To Jay, T.C., Michael, and David,
whose active encouragement, support, and acceptance of a
nontraditional definition of wife and mother gave me the
freedom to pursue this work.


ACKNOWLEDGMENTS
I take this opportunity to formally extend my sincere
gratitude to Lloyd Burton, John Buechner, Marjorie Lewis,
Julie Carnahan, and Ed Liberatore for their genuine
advice, encouragement, criticism, and wisdom.
I also extend special appreciation to Harold Cheuvront
for his years of unwaning support, and to Carla Stein and
Terre Deegan-Young who generously "held down the fort" on
more than one occasion. I am greatly indebted to each of
you.


CONTENTS
Cases................................................. x
Statutes............................................xiii
CHAPTER
1. INTRODUCTION ..................................... 1
Purpose and Scope of the Study.................. 2
Origin of Interest and Concern ................ 10
Timeliness of Topic......................... 10
Departure from Tradition ................... 12
Unique Nature of Student Affairs .... 14
Contents of the Thesis......................... 18
Notes.......................................... 22
2. HISTORY AND EVOLUTION............................ 24
The Nature of the Issue........................ 24
Greater Accessibility to the
Judicial System ............................ 26
Prominent Social Movements and
Definitive Events .......................... 35
Changes in the Law.......................... 4 6
How Student Affairs Fits In.................... 52
Contract Law................................ 53
Landlord-Tenant Law......................... 55
Constitutional Law.......................... 58
vi


Tort Liability........................... 74
General Findings of Past Research .......... 81
Past Strategies for Dealing With the
Trend of Increased Litigation............... 82
Limitations of Past Research................ 86
Summary........................................ 87
Notes.......................................... 91
3. METHODOLOGY...................................... 96
Research Hypotheses and Questions ............. 96
Clarification of Terms ........................ 98
Assessment and Investigative Process .... 101
Growth and Expansion of Student
Affairs Participation in Legal Arena . 101
Incidence of Higher Education Lawsuits . 104
The Influence of Legal Action on
Administrative Decision Making and
Student Affairs Operations ................ 106
Summary....................................... 118
Notes......................................... 120
4. RESULTS AND DISCUSSION.......................... 122
Incidence of Higher Education Lawsuits . . 122
Strength of Impact of Institutional
Legal Liabilities............................. 125
vii


Growth in Size of In-House Legal Staff . 125
Growth in Size of NACUA Membership . . . 126
Magnitude of Insurance Claims ............. 127
Summary.....................................128
Survey Questionnaire ......................... 129
Characteristics of the Survey
Population............................ 129
Subpopulations of the Survey Subjects . . 137
General Scenario Results .................. 143
Overall Influence on Student
Affairs Issues ............................ 147
The Influence of Legal Implications and
Positive and Negative Consequences . . . 148
Crosstabulation Between the Influence
of Legal Implications on Student
Affairs Issues and Demographic Factors . 151
Crosstabulation Between Demographic
Factors and the Potential Influence of
Legal Action on Administrative
Decision Making ........................... 155
Summary................................165
Summary.................................. 168
Notes.....................................171
5. SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS . . 173
Summary.................................. 173
Purpose and Focus......................173
viii


Definitive Events ......................... 174
Prominent Areas of Law for
Student Affairs ........................... 175
Limitations of Prior Research ............. 176
Research Hypotheses and Questions .... 176
Testing Methods ........................... 178
Findings................................... 179
Conclusions................................... 181
Recommendations .............................. 185
APPENDIX
A. Survey Questionnaire and Cover Letters .... 190
B. Report of Findings..............................197
C. Average Percentage Of Subjects Indicating
Moderately High or High Significance
For Legal Implications as a Decision
Criterion by Demographic Factors .............. 215
BIBLIOGRAPHY ........................................ 217
IX


CASES
Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970).
Bakke v. Regents of the University of California/ 18 Cal.
3d 342, 553 P.2d 1152 (1976).
Board of Curators of the University of Missouri v.
Horowitz, 435 U.S. 78, 55 L. Ed. 2d 124, 98 S. Ct. 948
(1978).
Bradshaw v. Rawlings, 612 F. 2d 135 (3d Cir. 1979), cert.
denied 446 U.S. 909, 64 L. Ed. 2d 26, 100 S. Ct. 1836
(1980).
Clark v. Community for Creative Non-Violence, 468 U.S.
288, 82 L. Ed. 2d 221, 104 S. Ct. 3065 (1984).
Dixon v. Alabama State Board of Education, 86 F. Supp.
945, rev'd. 294 F.2d 150, (5th Cir. 1960) cert, denied
368 U.S. 930 (1961).
Doe v. University of Michigan, 721 F. Supp. 852 (1989).
Eden v. Board of Trustees of State University, 49 A.D. 2d
277, 374 N.Y.S. 2d 686 (1975).
Goldberg v. Kelley, 397 U.S. 254, 25 L. Ed. 2d 287, 90 S.
Ct. 1011 (1970).
Goss V. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct.
729 (1975).
Gott v. Berea College, 156 Ky. 376, 161 S.W. 294, (1913).
Hazelwood School District v. Kuhlmeier, (1988) .
Healy v. James, 408 U.S. 169, 33 L. Ed. 2d 266, 92 S. Ct.
2338 (1972).
Horowitz v. The Board of Curators of the University of
Missouri, 538 F.2d 1317 (8th Cir. 1976).
x


Joyner v. Whiting, 477 F. 2d 456 (4th Cir. 1973).
Perry Education Association v. Perry Local Educators1
Association, 460 U.S. 37, 74 L. Ed. 2d 794, 103 S. Ct.
948 (1983).
Piazzola v. Watkins, 442 F. 2d 284 (5th Cir. 1971).
Quinn v. Sigma Rho Chapter, Beta Theta Pi Fraternity, 155
111. App. 3d 231, 507 N.E. 2d 1193 (1987).
R.A.V. v. St. Paul, 120 L. Ed. 2d 305, 112 S. Ct. 2538
(1992).
Regents of the University of California v. Bakke, 438
U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978).
Steier v. New York State Education Commission, 271 F.2d
13 (2d Cir. 1959), aff'd., 361 U.S. 966 (1960).
Students Against Apartheid Coalition v. O'Neil, 671 F.
Supp. 1105 (W.D. Va. 1987), aff'd., 838 F. 2d 735 (4th
Cir. 1988).
Tinker v. Des Moines Independent School District, 393
U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969).
Trujillo v. Love, 322 F. Supp. 1266 (1971).
University of Utah Students Against Apartheid v.
Peterson, 649 F. Supp. 1200 (D. Utah 1986).
Van Mastrigt v. Delta Tau Delta, 573 A. 2d 1128 (Pa.
Super. 1990).
Ward v. Rock Against Racism, 491 U.S. 781, 105 L. Ed. 2d
661, 109 S. Ct. 2746 (1989).
Whitlock v. University of Denver, 712 P. 2d 1072 (Colo.
App. 1985), rev. 744 P. 2d 54 (1986).
xi


Widmar v. Vincent, 454 U.S. 263, 70 L. Ed. 2d 440, 102 S.
Ct. 269 (1981).
Wisconsin v. Mitchell, 124 L. Ed. 2d 436, 113 S. Ct. 2194
(1993).
Xll


STATUTES
Civil Rights Act of 1964, 42 U.S.C. sections 1971, 1975a-
1975d, 2000a-2000h, Pub. L. 88-352, 78 Stat. 241 (1964).
Drug Free Schools and Communities Act Amendments of 1989,
20 U.S.C. section 2701nt, Pub. L. 101-226, 103 Stat. 1928
(1989).
Education Amendments of 1972, 42 U.S.C. section 2000c,
Pub. L. 92-318, 86 Stat. 235 (1972).
Fair Housing Act Amendments of 1988, 42 U.S.C. section
3604, Pub. L. 100-430, 102 Stat. 1619 (1988).
Family Educational Rights and Privacy Act of 1974
(Buckley Amendment), 20 U.S.C. section 1232g, Pub. L. 93-
380, 88 Stat. 571 (1974).
Land Grant Act of 1862 (Morrill Act), 7 U.S.C. sections
301-305, 307-308, ch. 130, 12 Stat. 503 (1862).
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
section 794 (1982).
Student Right-To-Know and Campus Security Act of 1990, 20
U.S.C. Pub. L. 101-542, 104 Stat. 2381 (1990).
Title VI of the Civil Rights Act of 1964, 42 U.S.C.
section 2000D, Pub. L. 88-352, 78 Stat. 252 (1982).
Title IX of the Education Amendments of 1972, 20 U.S.C.
section 1681, Pub. L. 92-318, 86 Stat. 375 (1982).
u.s. Const. amend. I.
u.s. Const. amend. IV.
u.s. Const. amend. XIV.
xm


CHAPTER 1
INTRODUCTION
When a college student sues a university for
negligent supervision or a civil rights violation,
Student Affairs professionals sit up and take notice.
This legal behavior encourages administrators, regardless
of their direct or indirect involvement in such lawsuits,
to re-evaluate and scrutinize staff actions and decisions
for possible links to legal infractions.
Each year higher education Student Affairs
administrators are required to make numerous decisions
which directly affect university policy and programs.
Through education, training, and experience these
professionals make decisions employing the theoretical
paradigms rooted in student development, personal ethics,
years of experience, and financial analysis.
In light of the legal conflicts between college
students and universities that have gained public
attention since the 1960s, it seems logical to
investigate the influence that legal action or even
simply the potential for legal action has on the
1


Student Affairs administrative decision making process.
As legal issues receive increased attention in the higher
education journals and publications, it is important for
educators to question what role this trend plays in the
shaping of higher education policy and programs. Legal
issues such as negligence and the provision of adequate
procedural due process have the potential to exert
increasing influence on decision making. It is plausible
that concern for or fear of legal constraints may take
precedence over other, more traditionally educational,
criteria used by administrators.
Purpose and Scope of the Study
This investigation will address two major issues.
The first of these is whether or not concern for legal
implications is a prominent criterion for Student Affairs
administrators when making decisions. To what degree is
the threat or fear of legal action taken into account
when administrators make policy and program decisions?
The second issue focuses on determining if legal
implications contribute to the shape and nature of
Student Affairs. If concern for legal implications is
used as a prominent decision making criterion, then this
2


can have a profound effect on the overall environment of
a university's Student Affairs division. The areas that
the research literature shows to be legally vulnerable
for Student Affairs include the division's reputation
with students, the nature of the educator-student
relationship, the philosophical (and possibly political)
slant of the department, and the future of leadership in
Student Affairs. Resulting consequences will be seen as
either positive or negative, and affect how Student
Affairs is viewed by various campus populations.
In addressing these issues, this thesis offers two
specific hypotheses:
1. Within the changed higher education legal
environment, legal implications play a significant role
in the decision making process of Student Affairs
administrators in specific decision situations; and
2. Relative to the changed legal environment experienced
by higher education institutions, legal implications have
figured prominently in the general organization of
Student Affairs divisions and on the specific nature of
their programs and operations.
In order to ascertain whether or not these
hypotheses are true, it is necessary to investigate and
3


respond to the following corresponding research
questions:
1. How have higher education administrative operations
changed with respect to institutional participation in
the legal arena over the past thirty years?
2. What, if any, has been the impact of legal
liabilities on higher education institutions?
3. What has been the volume of university-to-student
legal disputes since 1970?
4. Are legal implications a significant decision making
consideration to Student Affairs practitioners in
comparison to other decision criteria such as student
development theory, cost and budget factors, and personal
values?
5. Are legal implications a significant decision
criterion to Student Affairs practitioners in specific
decision making situations? If yes, in which ones?
6. Are legal implications viewed as having a significant
influence on the programs, functions, and operations of
Student Affairs departments? If yes, in what ways?
Three research methods were utilized for gathering
the necessary data regarding these questions and
hypotheses. To determine the influence that legal
4


implications have on administrative decision making and
Student Affairs issues, a Likert-type survey instrument
was designed and distributed nation-wide to Student
Affairs Vice Presidents, Deans, and Directors. These
individuals represent the primary decision makers for
Student Affairs divisions. The survey consisted of three
distinct portions. Part I included six typical job-
related scenarios to which subjects were asked to rate
the significance (on a scale of low to high significance)
of four common decision criteria utilized by Student
Affairs practitioners: student development theory,
budget and time cost considerations, legal implications,
and personal values.
Part II-A asked subjects to rate (from no influence
to high influence) the extent to which they view the
influence of legal implications on these prominent
Student Affairs issues: how division policy is made, how
student program and activities are designed, the nature
of the educator-student relationship, how students view
Student Affairs (the division and the professionals), and
the future of leadership in Student Affairs. Subjects
who selected "moderately high or high influence" for any
of the items were then requested to answer corresponding
5


questions in Part II-B. These questions required
subjects to indicate their degree of agreement or
disagreement with statements containing a positive or
negative result of the influence of legal implications on
Student Affairs issues.
In Part III of the survey, subjects were asked to
respond to twelve demographic data items. Once the
surveys were returned, the data were quantitatively
analyzed for frequency distributions, variations, and
statistical significance.
The method utilized for researching the changed
legal environment within which higher education operates
was of a very different nature. Tens of hours were spent
reviewing current and past volumes of education legal
periodicals, texts on higher education and the law,
higher education journals, and publications by the
National Association of College and University Attorneys
to discern the impact of legal action on higher
education, in general, and on Student Affairs, in
particular.1 In addition, over fifty pertinent court
cases, legal statutes, and constitutional acts and
amendments were analyzed for their effect on the
expansion of scope of legal issues for higher education
6


and Student Affairs.2 Also, phone conversations were
conducted with publishers of legal journals,
representatives from insurance companies and professional
societies, and experts in the field to gain valid
indicators and credible testimony as to the state and
nature of higher education and Student Affairs legal
affairs over the past twenty-five years.3 Finally, a
national computerized databank of legal information was
utilized to gather specific data regarding incidence of
university disputes with students. All of this
information was then synthesized and put into a table
format for clarity. These results are presented in
Chapter 4.
It appears that legal action has become a real
concern for universities as evidenced by various
activities recorded by the National Association of
College and University Attorneys (NACUA). One meaningful
yardstick for measurement is NACUA's growth in membership
size since its inception in 1961. The assumption is that
the more legal implications have become a concern for
universities since the 1960s, the greater the number of
institutions employing in-house attorneys (thus creating
7


the membership increase). This progression is
interesting to follow.
In 1985 then General Counsel to the University of
Michigan and Past President for NACUA, Roderick K. Daane,
wrote about the change in litigation in society and the
resulting expansion of the role of university attorneys.4
Daane explains that in 1961 the large majority of legal
consultations with universities were limited to
legislative interpretations, university by-laws, contract
review, and other routine and quick tasks. "In-house
attorneys were rare; litigation was very rare, and
lawyer-trustees were generally glad to be of service to
the old school."5 At that time less than fifty campuses
nationwide were involved in NACUA activities.
In contrast to this simpler time, 1985 saw NACUA
membership increase to 1200 institutions in the United
States and Canada, with 70% of institutions with annual
budgets of fifty million dollars or more employing an in-
house attorney. By 1985 the number of all colleges and
universities employing in-house counsel doubled from a
decade earlier.6
The current numbers for NACUA membership show
continued growth and involvement by higher education
8


institutions. According to the most recent annual
report, NACUA boasts 2600 attorneys representing over
1300 campuses.7 In addition, "institutional membership
growth has increased at an incrementally equal or higher
rate every year for the past five years".8
These numbers might suggest that there is more than
just a passing interest in legal activities, and possibly
litigation, on the part of higher education institutions.
The "Survey Of NACUA Primary Representatives" conducted
in 1992 showed that university attorneys' time is
approximately 80% contracts and other non-litigation
activities as compared to 20% litigation activities.9
Colleges and universities appear to be employing
attorneys for their legal knowledge and advice rather
than their trial capabilities, engaging more in
preventive law than in treatment law. During the period
from 1987 to 1992, almost half of the institutions
surveyed increased the size of their legal staffs.
Student Affairs ranks as one of the most (top five) time-
consuming areas for both in-house and outside legal
staffs for this same period. Other quantifiable
indicators of the trend of increased legal activity for
9


higher education, and more specifically for Student
Affairs, will be discussed in Chapter 4.
Origin of Interest and Concern
Timeliness of Topic
Currency of this issue is definitely noticeable. A
glance at the patterns and trends of the literature
addressing higher education legal issues reveals that the
majority of this literature has been written only since
the mid 1960s. Books devoted solely to Student Affairs
legal issues have been published since the 1980s. In the
past two decades professional journals representing the
Student Affairs field abound with articles on these
topics, with one, The National Association Of Student
Personnel Administrators Journal, devoting an entire
issue to Student Affairs and the law.10 In 1985 The
Journal of College and University Law published a special
issue highlighting and comparing/contrasting twenty-five
years of growth and change in higher education law.11
There appears to be a strong need for the Student
Affairs profession to address the legal concerns and
apprehensions of its practitioners and for professionals
10


to keep current on these issues. Not always covered in
staff training, professionals seek a wide variety of
opportunities to increase their knowledge of how to deal
with the ramifications of the decisions they make.
Graduate programs for Student Affairs professionals
have adapted to these trends by offering and usually
requiring courses in administrative law to prepare
individuals to effectively handle possible legal
dilemmas. Case study methods using actual situations
taken from the headlines of newspapers, professional
society periodicals, and The Chronicle of Higher
Education appear in most College Student Personnel,
Higher Education Administration, and Counselor Education
degree programs.
Student Affairs professional societies each year
sponsor programs, workshops, and conferences focusing on
legal issues, all for the purpose of enlightening and
educating practitioners. Catchy titles such as "How Are
Campuses Dealing With Hate Speech: Regulation Or
Education?" and "Discipline Procedures: Due Process
Protection Requirements Established By The Courts"12
attract administrators by the thousands in search of
11


answers and solutions to do the legally correct thing on
the job.
In addition, increasingly more of these professional
organizations are offering personal-professional
liability insurance plans, at affordable group rates.
Today this constitutes a multi-million dollar industry.
One such policy provider estimates approximately 200
professional liability claims are filed each year by
their clients, with this number on the rise.13 The
insurance industry appears to have found a willing market
for these policies by focusing on professionals' fears
and apprehensions regarding legal action.
Departure From The Traditional
Status And Role
There is little doubt that the influence of legal
action on administrative decision making will remain a
lively discussion topic through the 1990s. Besides the
capitalization on practitioners' concerns and fears by
the insurance industry and professional societies, this
topic is prominent because increased involvement in legal
action on the part of higher education institutions
represents a major departure from their traditional
12


"hallowed halls" status and role in society. This
escalation in risk and vulnerability has forced many
individuals, from department directors to governing
boards, to be cognizant of the eroding safety net once
afforded them.
Prior to the mid 1960s it was rare for major
lawsuits by students to be brought against universities
in the U.S. Colleges often were viewed as oases in
society with rules and procedures of their own, primarily
protected and sheltered from what happened outside their
campuses. Twenty-five years later, a multitude of
lawsuits have placed higher education institutions in the
role of defendant. There are two primary factors
responsible for breaking through the protective barriers:
A) Increased accessibility to the judicial system due to
the courts' redefinition of what constitutes a "property
right" for due process purposes, and the courts'
willingness to entertain broader definitions of education
as a property right; and
B) The proliferation of social movements during the
1960s, such as the Civil Rights Movement and student
consumerism.
13


Unique Nature of Student Affairs
Life in the U.S. after World War II brought a change
in societal demographics and climate. Veterans who felt
the government "owed them" and civil rights activists had
different ideas about the role of educational
institutions than students before them. The Women's
Movement and the College Free Speech Movement of the
1960s also helped give rise to student consumerism,
resulting in students' asserting their rights and
attempting to hold universities responsible for their
actions, policies, and programs. In addition, campus
student protests over the Vietnam war during the late
1960s drove a deep wedge into the traditional
administrator-student relationship. Unlike any group
before them, these students verbally and physically
challenged administrative decisions to engage the
university in defense-related research, to support campus
ROTC programs, and to allow military and CIA recruiting
on campus.
The changing nature of the student body has directly
affected the division of Student Affairs by putting its
administrators in the unique position of addressing,
regulating, and passing judgment on non-academic or
14


personal student behavior. Students' actions and
activity are often unpredictable, leaving professionals
vulnerable when making decisions, especially in light of
declining behavioral guidelines for students since the
1970s.14
Situations dealing with the personal or social
behavior of an individual often involve unclear
circumstances that allow for a wide range of complaints
and interpretations for both the student and the
administrator. For instance, derogatory speech by a
student towards another student may be simply a case of
that person exercising her/his First Amendment rights.
Or, how much of a contributing factor was a campus party
to a subsequent alcohol-related accident? What
constitutes appropriate and inappropriate behaviors often
may come down to a values conflict and a policy dilemma
for Student Affairs professionals.
Judicial and legislative response to litigation in
the arena of Student Affairs has resulted in notable
changes in policy over the years. As the courts and the
legislature react to these incidents, laws are passed
forcing administrators to put into place policies and
programs to comply with new statutes. For example, in
15


recent years many states have enacted "social host" laws,
dealing with a private host's potential liability for the
actions of intoxicated guests. This has encouraged
colleges to review and/or redefine the guidelines and
procedures for university sanctioned activities, both on
and off the campus.
Current laws regulating disclosure by counselors of
clients who indicate potential to harm themselves or
others cause university counseling centers to rewrite
student intake/information forms to reflect this "duty to
warn." The 1990 Congressional "Student Right-To-Know And
Campus Security Act" (an extension of the 1974 Family
Education Rights and Privacy Act) has, as one of its
components, the requirement that higher education
institutions publicly report statistics regarding violent
crimes on or near the campus. This has put into place on
many campuses written suggested guidelines for student
reporting of crimes and new procedures for official staff
recording of such occurrences.
Congressional enactment of the 21 year-old legal
drinking age makes approximately three-fourths of the
undergraduate student body on many campuses too young to
legally possess alcohol. The resulting changes for
16


programs and policies have included "dry" rush programs
for fraternities and sororities; the cessation of selling
alcohol at college sports events; extensive rules,
procedures, and responsibility for identifying and
delineating between of-age and under-age students when
serving alcohol at campus student activities; and, in
some cases, instituting a "dry campus" policy where no
alcoholic beverages may be present at any event and/or in
any campus building. These are just a few examples of
how legal constraints can affect Student Affairs policy
making and programming.
Legal terminology such as "reasonable manner," "duty
to warn," "due process," and "duty of care" are well-
known to Student Affairs administrators. These concepts
and accompanying court decisions encourage Student
Affairs professionals to look closely at staff actions
and decisions (as well as their own actions and
decisions) for possible links to negligence, civil rights
or due process violations, and other legal infractions.
In turn, these legal considerations have the potential to
present decision making dilemmas for practitioners on a
daily basis. Again, it is pertinent to ask the
questions, "Is concern for legal action a prominent
17


criterion for Student Affairs administrators when making
decisions?" "Do legal implications contribute to the
shape and nature of Student Affairs?" and "If yes, in
what ways?"
Contents of the Thesis
The following chapters of this thesis are designed
to address these and other relevant issues and to provide
a comprehensive background necessary to understand the
implications of the topic. Chapter 2 will delve into the
history and background regarding litigation's evolution
in higher education in general, and for Student Affairs
in particular. Specifically, the chapter will trace
three definitive events that have contributed to the
nature and shape of this issue. First discussed will be
the chronological progression of increased accessibility
to the judicial system, including the courts'
redefinition of "property rights" as they apply to public
education and the increase in support for individual
rights over institutional deference by the courts. This
will be followed by a description of the rise of
prominent social movements and turning points, such as
the G.I. Bill, the Civil Rights Movement, student
18


consumerism, the Women's Movement, and the campus Vietnam
protests, and how they induced greater legal activity for
higher education institutions. Third, the chapter will
discuss how changes in the law have affected higher
education policies and programs concerning student
interests.
Chapter 2 also will investigate how the division of
Student Affairs, specifically, has been challenged by
increased legal action by describing the different types
of legal issues most prominent to its areas of
responsibility. Contract issues regarding college
catalogs and housing guidelines have prompted student-
initiated lawsuits, as have constitution-related
activities concerning freedom of speech and the press,
unlawful searches and seizures, and due process rights.
In addition, discussion will focus on tort law and its
influence on the behavior and decision making of Student
Affairs practitioners.
Finally, Chapter 2 will investigate the past body of
research literature for a)findings from other authors who
have studied the legal behavior of Student Affairs
administrators, b)disclosure of suggested strategies for
dealing with the trend of increased litigation for
19


Student Affairs offices, and c)limitations of relevant
past research. In summarization, reference to the legal
areas within the scope of this research study will be
highlighted.
Chapter 3 will give a detailed account of the
research methodology utilized in this study. It will
begin with the statement of the three principal
propositions, followed by a description and explanation
of the related research questions addressing the
hypotheses. From here, the operational methods used in
the study will be outlined, including discussion of the
creation, design, and dissemination of the survey
instrument and definitions of key terms used in the
study. Chapter 3 will conclude by describing the
statistical measurements employed to answer the research
questions, and by discussing how this research study
differs from previous related research.
Chapter 4 will focus on the results of the study,
including a narrative of the statistical findings and
their meanings. Discussion will depict the extent to
which legal implications have influenced various
activities within Student Affairs divisions and the
decision making practices of Student Affairs
20


administrators. The narrative also will delineate an
accounting of actual higher education legal activity
since the 1970s, based on pertinent quantifiable
measurements.
Finally, Chapter 5 will address conclusions and
recommendations ascertained from the research results.
This will include trends, implications/meanings for the
future of Student Affairs, and suggested strategies for
heightening Student Affairs practitioners' awareness
regarding legal responsibilities on the job.
21


Notes
Materials reviewed were included in Journal of
College and University Law, Journal of Law and Education/
School Law Reporter/ College Students and the Courts/ The
Law of Higher Education/ second edition, The Law of
Higher Education: 1985-1990 Update, NAS PA Journal/
Journal of College Student Development/ The Wall Street
Journal/ The Chronicle of Higher Education/ numerous Law
School review journals, NACUA 1990-91 Annual Report, and
NACUA_Provision of Legal Services. A Survey Of NACUA
Primary Representatives.
2See Table of Cases and Table of Statutes following
the Table of Contents at the beginning of this thesis.
3Phone conversations were held with representatives
from the National Association of Student Personnel
Administrators, the National Association of College and
University Attorneys, the National Organization for Legal
Problems in Education, T.I.E. The Trust for Insuring
Educators, and Dr. Donald Gehring, Editor of College
Students and the Courts.
4Roderick K. Daane, "The Role of University
Counsel," Journal of College and University Law 12
(1985) 399-314.
5Ibid., 399.
6Ibid., 402.
7National Association of College and University
Attorneys, 1990-1991 Annual Report (Washington D.C.:
NACUA, 1992).
8Ibid., 5.
9National Association of College and University
Attorneys, Provision of Legal Services. A Survey Of
22


NACUA Primary Representatives (Washington D.C.: NACUA,
June 1992) .
10Mikell O'Donnell, et al., eds., "Student Affairs
and the Law" [Special issue], NASPA Journal 17, no. 3
(1975).
nLaura F. Rothstein, et al., eds., "Twenty-five
Years of Law and Higher Education" [Special issue],
Journal of College and University Law 12, no. 3 (1985).
12Actual titles of interest sessions offered at the
1993 NASPA annual conference.
13Taken from a telephone conversation with a
representative from T.I.E. The Trust for Insuring
Educators, May 1993.
14While all colleges and universities today impose a
Code of Conduct on students, my professional research
over the past sixteen years has indicated that the
specific breadth and scope of behavioral guidelines have
decreased considerably (especially for women students)
since the 1960s.
23


CHAPTER 2
HISTORY AND EVOLUTION
The Nature of the Issue
The potential for legal action against colleges and
universities has become more prominent since the 1960s.
Changes in society, such as increased personal freedoms
and shifting demographics led to changes in how
government agencies operated and what public services
they provided. Higher education was not shielded from
having to change with the times. Assertive student and
societal behavior altered the university's role in the
community. Now operating with increased public and
student demands and greater private-sector and government
ties, today's universities serve and are accountable to a
broad spectrum of constituencies.
As the student population became more independent,
consumer-oriented, and articulate in their expectations,
Student Affairs offices and practitioners also were
required to alter their roles and responsibilities
accordingly. Once viewed as "substitute parents,"
24


Student Affairs officials today are seen more as
educators and student-advocates. Student Affairs
services and programs were expanded to accommodate more
contemporary student requests and needs. In addition,
policies and procedures were clarified or changed to
reflect the evolution of students-as-minors to students-
as-adults.
The transformation of the American public higher
education system from traditional to contemporary mode
did not always follow a smooth course for either students
or universities. Almost non-existent prior to 1960,
legal action against universities by students not only
prompted changes in policies and programs, but also
produced a different type of relationship between student
and college. For the Academic Affairs arm of the
university, students called into question rules and
procedures regarding admissions requirements, grading
practices, and program selection, offerings, and
availability. For Student Affairs departments, legal
complaints by students were wide-spread, including
dissatisfaction with contract policies; landlord-tenant
relationships; and constitutional issues such as freedom
of speech, unlawful search and seizure practices, and due
25


process protections. Tort law activity initiated by
students concerning instances of university negligence
and violation of student civil liberties also began to
surface.
Historically, higher education legal activity can be
attributed to three major forces: greater accessibility
to the judicial system, the rise of prominent social
movements and definitive events, and actual changes in
the law. These factors have been major catalysts for
policy and program change for public higher education, in
general, and for Student Affairs divisions, in
particular.
Greater Accessibility to
the Judicial System
The most definitive description of and argument
advocating increased judicial accessibility can be found
in "The New Property" by Charles Reich.1 It was made
clear, through the U.S. Constitution, in the early days
of our nation that no person should be denied life,
liberty, or property rights without due process of law,
with the Fifth Amendment setting limits on governmental
power. To Reich, this emphasis on due process and the
26


courts' upholding of due process rights were vital to
society's survival, even in modern times. In 1964 Reich
contended that the old standards and definitions
pertaining to due process property rights, in
particular were dated because they were based on a
predominantly agrarian society which was no longer the
case in the 1960s. Earlier, "property" meant land; it
was most individuals' primary means of survival and
society's wealth.
By the 1960s, property had taken on a different
meaning. Wealth was not necessarily defined solely by
the amount of land one owned. A largely agrarian society
gave way to a more industrialized one. As society
expanded its expectations of the government, status with
regard to the decision making of government institutions
(e.g., participation in programs of public education)
became a source of a "new property".
Reich asserted that individuals' entitlement to
education should be viewed as a property interest because
in many instances it is all that these people (i.e.
students) "own." Given said ownership, Reich argued that
society, through the judicial system, also must provide
due process protection in connection with deprivation of
27


such ownership or risk the deterioration of our nation's
foundation. Crucial to society's survival, persons with
an entitlement right (i.e. the new property) deserved to
have a fair hearing before such a right could be revoked.
This new property afforded greater numbers of individuals
the right to be heard, be represented, present evidence,
challenge decisions, and file appealsrights once
practiced mostly by large corporations, not individual
citizens. Subsequently, these due process rights have
been extended to cover a broad range of governmental
entitlement programs such as welfare, education, and
civil rights protections.
In 1970, after witnessing a decade of due process
debates in courts of all levels, the U.S. Supreme Court
agreed with Reich's new property entitlement arguments,
as they applied to public assistance programs, in
Goldberg v. Kelley.2 Involving a welfare benefits pre-
termination hearing, the case's main arguments centered
on rights versus privilege, the two major forces in
defining "property." The Supreme Court allowed the
definition of property to include welfare benefits.
Later, in 1975, the U.S. Supreme Court extended this
principle to include public education in Goss v. Lopez
28


and finally higher education in Board of Curators of the
University of Missouri v. Horowitz. The court's
willingness in Goss to entertain due process and
entitlement arguments as they pertained to a student's
suspension and expulsion from an educational institution
resulted in public education becoming a government
activity in which an eligible participant obtained a
property interest.
In this particular case a high school student was
accused of educationally disruptive behavior, attacking a
police officer, and damaging school property, prompting
the school to suspend the student. Ultimately the
Supreme Court contended that due process protections
applied in any situation in which a person's property
right to a public education may be taken awayeven if
for only a brief period of time. The court concluded
that the more severe the disciplinary consequence (i.e.
depriving a student of her/his education), the more
formal and thorough should be the hearing, thus giving
credence to the education-as-property-right principle.
While the Supreme Court became more willing to hear
cases against educational institutions in the 1960s and
1970s, it still was more deferential to the professional
29


judgment of the university over the complaint of the
student. This was in keeping with the status
traditionally afforded colleges and universities.
When a student with excellent grades was dismissed
from medical school for poor behavioral performance (i.e.
clinical ability, reviews, and personal hygiene), she
sued the university (Horowitz v. The Board of Curators of
the University of Missouri) for depriving her of liberty
in violation of the due process clause of the Fourteenth
Amendment and for virtually preventing her from obtaining
employment or further education in areas related to
medicine. The Court of Appeals agreed that there had
been a deprivation of liberty and insufficient
opportunity for personal defense.
On appeal the Supreme Court contended that
regardless of whether there may have been a deprivation
of liberty (the student's possibility for future
employment in a medical-related field) and property (her
medical school education), the student had been given an
adequate amount of due process by the university. Once
again, the court deferred to the expert judgment of the
university faculty, dean, and provost and supported the
institution's own comprehensive procedures for due
30


process and decision making. There existed a strong
reluctance on the part of the high court to usurp
universities' efforts to appropriately and prudently
handle their own affairs.
Horowitz represents one of the major Supreme Court
decisions in higher education. The court's findings are
significant in two ways. The Supreme Court's extreme
deference to the university faculty made it clear that
the court would not pass judgment over education experts
(i.e. faculty) on substantive academic issues. The court
definitively stated that its concern should be limited
only to determining the accuracy and fairness of
university proceedings.
This stance resulted in a clear distinction between
higher education matters of Academic Affairs and matters
of Student Affairs with regard to appropriate guidelines
for due process procedures. Because Horowitz involved a
student's academic performance, a trial-like hearing was
not deemed to be necessary, unlike incidents concerning a
student's disciplinary behavior (Student Affairs arena)
which requires a more formal hearing process (as in
Goldberg v. Kelley).
31


By adopting a redefinition of property rights, the
Supreme Court increased the rights of individuals to
challenge agency decision making based on a host of more
liberal grounds than was previously allowed. Richard B.
Stewart presents an authoritative history tracing the
erosion of traditional administrative law procedures and
the rise of current, broader practices and
interpretations.3
Historically, government intrusion into individuals'
private affairs regarding liberty or property was limited
to only those situations dictated by legislation. There
existed many restrictions on who could challenge
administrative decision making and for what reasons.
Usually this meant that the only individuals with the
right to challenge authority and to appear before an
administrative hearing were people or entities with an
economic stake in the matter. According to Stewart, the
resulting consequence of this practice was supervisory
discretion, or the lack thereof, in administrative
decision making. The courts sought to control the
problem of agency discretion by requiring agencies to
abide by practices and procedures that were fair and just
to all affected parties.
32


As citizens and business entities began to demand
more equality in agency regulation during the 1950s and
1960s, the traditional policies of administrative law
increasingly became inappropriate. The expanding role of
the government into the welfare of private citizens and
businesses and the fact that agency policies in certain
areas were ineffective in protecting the public interest
(often the reason for their existence in the first place)
contributed to eradicating the line between government
protection and intrusion.
The impact of these events was great. Agencies in a
regulatory capacity became more vulnerable and were put
under intense scrutiny by both society and the courts.
This represented a major change in who could challenge
agency decision making and on what grounds. While higher
education originally was not seen as a regulatory agency,
the courts allowed grievances to be heard because of the
enforceable nature of university policies, procedures,
and rules and the expectation of students to abide by
them.
Greater accessibility to the judicial system and
increased public exposure have made their imprint on
higher education in numerous ways. Once seen solely as a
33


privilege, a college education today often has become a
right in the eyes of plaintiffs who challenge some aspect
of the higher education system. This viewpoint, however,
has not been shared necessarily by the Supreme Court,
which has held that the Constitution does not guarantee
an individual's right to participate in government
programs, including public higher education.4 The
Constitution only guarantees due process protections,
through the Fourteenth Amendment, and the Court's role is
to ensure that the decisions made and the procedures used
by public agencies be fair and accurate. In the case of
Board of Regents v. Roth, the Supreme Court was explicit
in its decision against a university faculty member whose
one-year contract was not renewed by the university. The
Court contended that the university did not deprive the
faculty member of either liberty or property interest
because "there is no suggestion that the state, in
declining to re-employ the respondent, imposed on him a
stigma or other disability that foreclosed his freedom to
take advantage of other employment opportunities,"5 and
while "the respondent surely had an abstract concern in
being hired,"6 he did not have "a legitimate claim of
entitlement"7 to the position.
34


Prior to the 1950s, university staffs -
administrators as well as faculty were highly respected
as scholars, more educated than the general public and
therefore more capable of handling their own internal
affairs. University missions were highly intellectual,
not always understood by or interesting to outsiders.
Tradition was expected and held in high esteem by both
the campus and the public. However, as students were
allowed (took) more freedom to assert their rights, along
came increased challenges to higher education tradition.
Single-sex institutions and rules/regulations regarding
issues such as grievance procedures, sexual harassment,
hate speech, and student rites-of-passage (e.g. hazing)
activities came under attack.
Prominent Social Movements
and Definitive Events
The end of World War II saw the beginning of the
changing demographics of the higher education student
body. Before World War II the majority of students
entered college immediately after high school and usually
graduated by the age of 24. At that time approximately
1.5 million students, slightly over 1% of the total U.S.
35


population, pursued a college degree. Today that number
is over 14 million, representing 6% of the population in
the U.S.8
The World War II veterans returned home looking for
a better way of life they believed the government and
society owed them for their duty and service. They saw
higher education as their hard-won right, not a
privilege, and necessary for their and society's future
economic stability.
Beginning with the GI Bill in the 1940s, government
influence on and in higher education took off with such
intensity.not seen since the Land Grant Act (Morrill Act)
of 1862.9 Expanding to include grants, scholarships,
loans, work-study programs, and general appropriations,
the 1950s to 1970s increase in federal and state funds to
institutions and aid to students not only expanded
university size and student enrollment, but also required
more administrators to make policy and deliver programs
and services. The result was a larger student population
with a wider range of needs and characteristics,
representing all ethnicities, socio-economic backgrounds,
and age groups.
36


University growth at this time generated two
significant outcomes: political involvement and student
consumerism. Increased funding to institutions forced
universities to become more involved politically. Grants
and appropriations had strings attached in the form of
government regulations and compliance expectations.
While private institutions still may have had a few more
freedoms, they were not immune from government influence
and accountability at the federal, state, and local
levels. As long as their students were receiving any
type of government aid, or the college benefited from
public funding, private schools were subjected to the
same expectations as their public counterparts.
The 1980s saw the curtailment of federal and state
funding, thus requiring public universities to re-examine
and re-evaluate their expansion of programs and
facilities.10 Cuts in support and fewer government
appropriations did not stop university accountability;
new legal ramifications emerged, continuing into the
1990s. Universities are now more accountable legally,
politically, socially, and financially due to cuts in
financial aid packages, the greater expectation of
student and family contributions, the consolidation or
37


elimination of programs and activities, and the rising
tuition levels each year that are higher than the overall
rate of inflation.
In addition to financial aid and tuition, other
Student Affairs activities are not immune to the legal
ramifications of budget cuts. Residence Life programs
have created friction with the private sector by offering
inexpensive housing in campus residence halls to outside
organizations, associations, and tourists, thus competing
for dollars with local hotels. Other institutions have
sought to "contract out" services such as health care,
counseling, and public safety/security to outside clinics
and organizations, reducing campus staff to the less
controversial role of referral agent. By implementing
these changes, many institutions could make or save money
and avoid incurring the legal risks associated with these
departments. They reduce their risk because
responsibility rests primarily with the contracted
agency.
At about the same time that higher education growth
and student body changes intensified, a new concept
coined "student consumerism" began to establish itself.11
Student consumerism is predicated on the assumption that
38


students, taking more of a consumption role when
enrolling in a university, will actively assert their
rights and hold colleges responsible/liable for their
behaviors and commitments.
Student consumerism altered the relationship between
the student and the institution from the traditional one
of benevolent mentor-apprentice to one of contractual
partners. Traditionally, attorneys represented
businesses and industries. Universities were not seen as
either until students began to demand more than
intellectual stimulation and paternalistic guidance from
their schools.
Due to the efforts of the Civil Rights movement, the
Women's Movement, and general student unrest during the
late 1960s, universities were forced to pay attention to
the output of their product the student. Student
demands forced colleges to re-evaluate the ways in which
they viewed students and made decisions on their behalf.
Women, minorities, part-time, and older students expected
expanded services to meet their educational needs and
desires for equal opportunities with the more traditional
college student.
39


As the student body changed, so too did society's
view of educational institutions. Increased active
concern for what was happening inside the campus went
beyond students and their families. Taxpayers,
businesses, and the general public began to take a
greater interest in university life and to challenge its
outcomes. Estelle Fishbein coined the term "academic
accountability" to "describe the circumstances under
which academic institutions are required to answer to
authorities other than their own governing boards and
constituencies."12
The proliferation of higher education institutional
ties and contracts with the private corporate sector
during recent times is due to and sustained by increases
in graduate programs, stronger emphasis on research, and
the desire of universities to maintain public credibility
by being seen as in-touch with the outside world. This
represents a major shift from the days when colleges
coveted their purely academic reputations and sought a
status different from the outside world.
The greatest administrative (and possibly legal)
challenges to universities came with the Civil Rights
Movement, the Women's Movement, and the Vietnam protests,
40


all intensifying public scrutiny of campus activity. No
other movement or definitive event has opened the door
for change at universities as has the Civil Rights
Movement of the 1960s. By demanding an end to separate-
but-equal educational facilities and asserting their
rights for equal access to and opportunity in all aspects
of education, civil rights activists launched an attack
on overt discrimination in higher education. These
activities prompted changes in the law, beginning with
the Civil Rights Act of 1964 which continues to be
amended years later (Education Amendments of 1972,
Rehabilitation Act Amendments of 1974).
Civil rights proponents recognized that in addition
to equality, students were looking for treatment
incorporating the same dignity and respect they saw
being bestowed upon others. "Equal opportunity" and
"affirmative action" became the buzz-words as
universities reviewed policies and procedures for
possible discriminatory content and sought to be more
proactive in their student recruitment activities.
For Student Affairs, the Civil Rights Movement had a
profound influence on admissions procedures, allowing
minority applicants the same educational opportunities
41


and access as other students. In their zeal to put into
practice affirmative action programs, however,
universities sometimes produced debatable methods for
reviewing potential student applications. Separate
systems for accepting applications based on ethnicity and
racial quotas were formulated by some institutions.
For all the influence, trail-blazing, and policy
review made possible by the Civil Rights Movement, the
legal case most associated with it was not about a
lawsuit brought against a university by an African-
American student, but rather by a Caucasian student
claiming to be a victim of reverse discrimination. Bakke
v. Regents of the University of California, and the
subsequent Regents of the University of California v.
Bakke, set the stage for affirmative action review for
reverse discrimination activities by college admissions
committees. The student in this case sued the University
of California at Davis Medical School for rejecting his
application (twice), asserting that he was the victim of
reverse discrimination due to special admissions
privileges given to minority students. Because the
school used two different sets of admissions procedures
for minority and non-minority students, Bakke believed
42


that his application was rejected because minority
students were given preference and greater numbers were
admitted to the program.
Both the California and U.S. Supreme Courts agreed
that race had been a factor in admissions decisions. The
California Supreme Court ordered the institution to admit
the student, but the U.S. Supreme Court maintained that
Bakke could not prove he would have been accepted if the
special procedures for minorities had not been in place.
The U.S. Supreme Court held that a simple race-based
quota could not be used by an institution that did not
have a history of explicit de jure13 race-based
discrimination in admissions. Today colleges review
student applications through the same admissions process,
or risk having their procedures being labeled
discriminatory.
The holding of the U.S. Supreme Court's decision in
Bakke set the stage for affirmative action as it is
practiced in higher education admissions today. While
the lower court prohibited racial consideration in
admissions decisions, the Supreme Court supported
sensitivity to ethnic origin of students to promote a
diverse student population, vital to maintaining higher
43


education's purpose in society. Few similar court
cases14 have surfaced since Bakke, and these have relied
on the Supreme Court's decision in Bakke to support a
university's quest to admit students from all walks of
life to its various programs. These lower courts have
concurred with Supreme Court opinions that support a
university's practice of looking beyond standardized test
scores (and other measurements that historically have put
minority students at a disadvantage) as long as such
practice does not include separate admissions procedures
for minority and non-minority students.15
In addition to the Civil Rights Movement, the
Women's Movement, college free speech movement, and
Vietnam protests all have challenged universities and
their treatment of students. The advancement of women in
society and the campus unrest experienced during the
Vietnam war both produced major changes in university
policies regarding students.
As greater numbers of women matriculated, new
demands for equal treatment, opportunity, and access were
made. Women wanted access to programs traditionally
geared toward men and better advising and facilities when
they chose to stray from traditionally female
44


activities/programs. Additional requests by women, and
later mandated by the federal government, for campus
facilities and programs such as residence halls, gyms and
locker rooms, childcare options, and increased medical
benefits (i.e. gynecological and maternity) covered under
student insurance forced Student Affairs administrators
to take action. Sexual discrimination became a prominent
concern for administrators to handle (more detailed
discussion of women's educational issues, such as Title
IX, will follow in the next several sections of this
thesis).
The Vietnam protests at the height of campus unrest
in the late 1960s challenged university administrators in
a way unlike any other. Students from all backgrounds
attempted to form a unified voice against the rules and
regulations of "the administration." Most often demands
included greater freedoms of speech and the right to
demonstrate on campus.
When groups in the past (with the exception of some
civil rights protests) protested university policies and
procedures, administrators generally were respected as
individuals capable of making the requested changes, or
students grudgingly deferred to the final word of the
45


administration. This time, however, administrators were
adversaries, and students were not relenting or
deferential. They called for the dismissal of perceived
oppressors and disrupted campus life to make their
points. For some campuses civil rights activity and
Vietnam protests often converged in tandem on campus,
resulting in destruction, violence, and arrests. Many of
the demands made by student protesters during this free
speech movement culminated in a debate over student
rights and constitutional law. This will be fully
addressed in a subsequent section of this thesis.
Changes in the Law
There is no doubt that the law legislative
enactment has had a direct impact on policy and
programs in Student Affairs. Laws force administrators
to react, to make decisions based on a delineated set of
statutes. Higher education has witnessed numerous
changes in the law, most of which have left their
imprints on Student Affairs activities.
Traditionally, the cornerstone of the student-
administrator relationship was the doctrine of in loco
parentis. Derived from English common law, in loco
46


parentis allowed faculty and administrators to become
"substitute parents" to the students and make
decisions/policies in the students' best interests, the
same as any good parent. Because higher education was
viewed as a privilege rather than a right, and
universities maintained authority over all aspects of
students' education, the courts supported academic
institutions' attempts to control non-academic student
life, as well.
The legal precedent for in loco parentis in a higher
education setting began in 1913 with Gott v. Berea
College, in which the court definitively declared that
universities were responsible for the
physical and moral welfare and mental training of
the pupils, and we are unable to see why, to that
end, they may not make any rule or regulation for
the government or betterment of their pupils that
a parent could for the same purpose.16
For Student Affairs administrators, in loco parentis
became the impetus for establishing and enforcing rules
regarding residence hall curfew regulations and
visitation privileges. Such rules included hours during
which students must be present and accounted for in their
rooms, hours and conditions under which visits by
"outsiders" were permitted, and guidelines for general
47


appropriate social behavior, all of which resulted in
serious reprimands and other penalties for violators.
As the demographics of the student body changed
after World War II, so did the magnitude and force of the
doctrine of in loco parentis. An older, more mature and
socially conscious population was not interested in
parental guidance from its university; an adult
relationship with multiple behavioral options was sought.
The last court-supported hurrah for in loco parentis
(and also against due process rights for college
students) came in 1959 in Steier v. New York State
Education Commission when the courts deferred to the
university's expert judgment in attempting to control a
student's behavior through suspension and subsequent
expulsion. Two years later in loco parentis was
definitively rejected by the court in Dixon v. Alabama
State Board of Education, discussed more specifically
later in this thesis.
Today, the doctrine of in loco parentis is no longer
applicable to higher education. The lowering of the age
of majority and the voting age from twenty-one to
eighteen, as changed in 1971 by the Twenty-sixth
Amendment, contributed to the shift in students' status
48


from minors to adults.17 Today, universities generally
take the stance that college students are adults with
appropriate responsibilities and constitutionally-
guaranteed rights. Congress reinforced the notion of
students as adults when it passed the 1974 Family
Educational Rights and Privacy Act (or Buckley Amendment)
in which students' privacy rights regarding their
educational records override even the rights of their
parents, regardless of who actually is financing the
students' education. Specifically, the Buckley Amendment
requires higher education institutions to give students
access to their educational records, to allow students to
challenge the content of these records, to permit only
narrowly prescribed disclosure of personal information in
students' records without securing their prior consent,
and to provide student recourse for institutional
violations of the law.
The Buckley Amendment contributed to solidifying the
concept of the independent student. In addition to
controlling their own educational records and enjoying
other student rights, today's college students have the
opportunity (after meeting certain requirements) to
emancipate themselves financially from their parents,
49


thereby becoming the sole person responsible for their
education. This often allows students to sign various
institutional contracts without a parent's co-signature,
including financial aid, residence facilities contracts,
and insurance waivers.
The changing demographics and demands of college
students during the 1960s and 1970s were not unnoticed or
ignored by the federal government. The passage of the
Civil Rights Act of 1964, the Education Amendments of
1972, and the Rehabilitation Act of 1974 sought to
protect students from discrimination on the basis of race
(Title VI), gender (Title IX), and disability (Section
504), respectively. These statutes applied to any agency
or program receiving federal financial funding, including
higher education institutions.
The resulting impact of the above-cited legislation
on higher education, and specifically Student Affairs,
has been great. Programs in admissions, athletics,
financial aid, student discipline, campus housing, health
services, facilities, and other support services have
undergone extensive policy review and revisions to comply
with the law. Students have found these acts to be a
major basis of support in asserting their educational
50


rights in court. With the federal government's threat to
revoke funding to institutions found not to be in
compliance, colleges had no choice but to renovate
facilities, expand services, and seriously address the
needs and requirements of women, minorities, and disabled
students.
More recently, the increased age-of-majority to 21
regarding alcohol possession and strict "social host"
laws enacted by many states have sent Student Affairs
administrators back to the policy-making drawing board as
has been discussed earlier in this thesis. However,
beyond the checking of ID's or providing alternative
beverages to alcohol looms the requirements mandated by
the Drug Free Schools and Communities Act Amendments of
1989. Once again, institutions (or students in
attendance at the school) receiving federal funding have
been mandated to alter policies and programs to the
specifications of Congress. The Drug Free Schools and
Communities Act Amendments of 1989 requires universities
to establish alcohol education programs, including
procedures/guidelines addressing standards of conduct and
consequences for violations; information on the hazards
of alcohol and drug use/abuse; appropriate available
51


counseling and treatment referrals; and written
distribution of all the above, for students, faculty, and
staff.
With this act came the additional requirement of
identifiable and quantifiable accountability.
Institutions are expected to review and re-evaluate their
program's effectiveness every two years and make
appropriate changes. It is not enough for an institution
just to have the program. The government also insists
that if any parts of the program are not effective, the
school must fix the problem. Further, the federal
Department of Education reserves the right to spot-check
compliance by requesting copies of the distributed
materials.18 The tradition of deference to institutions'
best judgment and management of its own affairs without
outside intrusions steadily has shrunk in the 1980s and
1990s.
How Student Affairs Fits In
A review of court cases and supporting literature
shows that Student Affairs involvement in litigation
falls within several identifiable areas of legal study:
52


contracts, landlord-tenant relations, constitutional
issues, and tort law.
Contract Law
Contract law most often (excluding financial aid)
applies in situations regarding handbooks, catalogs,
codes of conduct, campus residences, and admissions.
Written materials promulgated by universities have
historically served two major purposes: provision of
information for students and protection for the
institution. Today, there is less description of
missions and philosophy and more focus on rules governing
the relationship between the student and the university.
The courts have maintained that university brochures -
the college catalog and student handbook, in particular -
play an integral role in defining the contractual
agreement on the part of both parties. The university
catalog has become more consumer-oriented to attract new
students, define existing services, and demonstrate
campus sensitivity to the changing student body (i.e.
ethnicity, women, non-traditional students, and the
disabled).19
53


Once considered a protective device for the
institution, the catalog and handbook are now often used
by students against the university. Since these
documents are now generally viewed as promises or
unilateral contracts, misrepresentations in these
documents are often interpreted as breaches of contract
for failure to honor their statements and components.
The case cited most often regarding contract theory in
this area is Eden v. Board of Trustees of State
University. Although the case specifically involved
students who sued the State University of New York at
Stony Brook for canceling its plans for a podiatry school
after it had admitted students, the subsequent message to
universities was loud and clear: a student and a
university are under a contractual obligation to each
other once the student's admissions application is
accepted by the school. Court opinions such as this
prompt universities to abide by written policies or to
include disclaimer statements which reserve to the
institution the right to make appropriate changes.
54


Landlord-Tenant Law
For on-campus housing administrators, contract
theory and landlord-tenant law, have long been
necessities both behaviorally and financially. Students
dismayed at the restrictions on freedom imposed by their
living/dining facilities have attempted to get out of
their housing contracts, oblivious to the budget strain
such an act would impose on Residence Life. Many
universities have strict cancellation policies which rely
on the signed housing contract for protection.
The Residence Life contract also has a tradition of
outlining expected student behavior and subsequent
university response in matters that contribute to the
financial solvency necessary for the upkeep and continued
maintenance of residence halls.20 One of the seemingly
vulnerable areas involves universities' attempts to bill
a designated group of students for physical damages to
common area facilities when the person responsible cannot
be identified. This practice prorates the total amount
of damages evenly among a logical designated group, such
as a residence hall floor or group of suites. Some legal
professionals21 suggest that this practice may be
challenged based on contract limitations or on the
55


grounds that the U.S. Constitution provides for freedom
from punishment without evidence of personal fault (due
process clause of Fourteenth Amendment).
Traditionally/ the universities have supported their
stance in this matter by including explicitly outlined
provisions for group billings in residential contracts/
checking for pre-existing conditions before occupancy/
conducting a thorough investigation to discern the
party(ies) responsible for damages, and by affording
students all due process rights. While this issue
remains an often-discussed topic among Residence Life
administrators, and some professionals may find group
billings legally questionable, the fact is that to date
there has been only one case brought to court22 and the
residence in question was a hotel renting rooms to
students rather than a university-owned building.
Landlord-tenant law in higher education, as it
pertains to campus residence halls and fraternity and
sorority housing, resembles that of society.
Institutions providing campus housing are subjected to
similar laws and guidelines as private landlords. While
most housing disputes between university and student fall
under the principles of contract law, students in past
56


years also have taken universities to court for housing
discrimination based on sex, marital status, physical
disabilities, and age.
Because universities are bound to comply with Title
IX and Title VI requirements outlined in the Education
Amendments of 1972 (of the Civil Rights Act of 1964),
lawsuits regarding sex (Title IX) and racial
discrimination (Title VI) have been few in recent years.
Title IX mandates that residential colleges not only
provide housing for women and men, but also to ensure
that the facilities and cost are comparable. In
addition, all rules, procedures, and policies for
residential living must be the same for both sexes.23
Title VI protects students from being subjected to
different policies, rules, and treatment on the basis of
race.24
A greater number of lawsuits against landlord
universities have been brought by students with
disabilities. While Section 504 of the Rehabilitation
Act Amendments of 1974 mandates that residential
institutions provide accessible, comparable, and a choice
of housing at no extra cost, many institutions were slow
to make the necessary physical alterations to accommodate
57


accessibility. Some colleges lacked the financial
resources and were forced to re-visit budget allocations,
and other universities simply waited until a student
request for handicap facilities arose.25 The Fair
Housing Act Amendments in 1988 reinforced universities'
commitment to providing appropriate living facilities by
prohibiting housing discrimination against handicapped
individuals.
Constitutional Law26
One of the first forms of legal action by students
against Student Affairs offices concerned
constitutionally protected rights. Prior to the 1960s,
there were virtually no court cases upholding student
rights under the Constitution, with the exception of
racial discrimination. This began to change dramatically
as student behavior and demographics changed during the
1960s, as discussed earlier. First, Fourth, and
Fourteenth Amendment issues have been most prominently
raised by students in recent years.
The First Amendment issues implicating freedom of
speech and expression, freedom of the press, separation
of church and state, and right to assemble provided the
58


impetus for students to demand their constitutional
rights from seemingly oppressive universities. Campus
activities that may fall under these protections include
student publications, meetings and demonstrations, verbal
and non-verbal expression, posters and other written
materials, and guest speakers.
Donald Reidhaar, judicial counsel for the University
of California at Berkeley during the Berkeley free speech
movement, described the 1960s as creating a "profound
expansion of student rights" under the First and
Fourteenth Amendments.27 He further pointed out that
because the milestone case of Tinker v. Des Moines
Independent School District "implicitly rejected in loco
parentis concepts and the idea that education is a
privilege,"28 college students then were given the "full
panoply of First Amendment rights".29
Although Tinker involved the rights of high school
students to wear black armbands and engage in other
activities of protest over the Vietnam war, it is viewed
as a milestone case for all upper levels of education.
It represented the first time that the Supreme Court
allowed student behavior to be afforded First Amendment
protections. Reidhaar contended that from this point
59


forward, to whom students could listen, what they could
say, where they could say it and for what purpose would
fall under First Amendment scrutiny.30
The higher education follow-up to Tinker was Healy
v. James, in which the Supreme Court applied the same
opinions made in Tinker to college students whose local
SDS (Students for a Democratic Society) chapter was
denied recognition by the school's president as an
official student organization. Lack of official
recognition barred the group from receiving student
funds, using campus facilities, and advertising itself
through, campus mediums. The court firmly maintained that
First Amendment rights and protections should apply on
public college campuses the same way they do to society
in general.
The Healy decision affirmed that student
organizations (including those based on sexual
preference) have rights and protections (i.e. freedom of
speech and assembly) under the First Amendment. This
decision forced Student Affairs administrators to perform
the delicate task of finding ways to define conditions
for student group recognition without violating students'
rights or creating havoc on campus. The courts have
60


supported a number of university-imposed restrictions:
student groups must agree to abide by university policies
regarding standards of conduct; the group's activities
must not disrupt the educational process (i.e. classes,
offices, special events) or the educational rights and
opportunities of others; and the group must not be
involved in illegal activities and must not promote
illegal actions.
Requiring student groups to adhere to these
regulations does not violate student groups' First
Amendment rights, according to the Supreme Court in the
Healy decision and in subsequent similar cases. More
recently, as decided in Clark v. Community for Creative
Non-Violence, and applied to higher education and
students in Ward v. Rock Against Racism, Students Against
Apartheid Coalition v. O'Neil and University of Utah
Students Against Apartheid v. Peterson, the courts
affirmed the guidelines for university regulation of
student behavior. Policies must be content-neutral, meet
a significant government interest (such as controlling
noise levels in certain situations), and make available
alternative routes for expression.
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While Student Affairs administrators have received
judicial support for regulating student groups, the
courts also have cautioned them to maintain events
equity, fairness, and neutrality when making decisions
regarding recognition, especially involving groups whose
philosophy or behaviors may be different from their own.
The message to administrators is clear: set policy, but
remember that students have the same constitutional
rights as any other individual in society.
From an historical perspective, Tinker and Healy
opened the gates of due process to students regarding
some freedom of speech issues. It is important to note
that these cases refer only to free speech as it applies
to students' rights to free demonstration. They do not
address freedom of speech issues pertaining to student
publications. In these situations, the courts have taken
a strong stance in support of the freedom of speech
rights of campus newspapers of a public forum nature in
public higher education institutions.
In the opinion of the courts, college student
newspapers enjoy freedom of speech protections once the
publication is established and recognized (similar to
student organizations) by universities to be for and by
62


the students, especially when funded through student
activities fees and controlled by the student government
association.31 Further, these publications may not be
subjected to censorship, including restriction of content
prior to printing, termination of student staff,
withdrawal of funding, limitation of distribution, or
elimination of the newspaper due to disagreement with its
message and content.32
Although public universities have attempted to
control or restrict their campus student newspapers,
legal proceedings have tended to favor the students.
Cases such as Antonelli v. Hammond and Joyner v. Whiting,
in which the student newspaper's funding was eliminated
by administrators who disapproved of the printing of
obscene words and the paper's editorials, and Trujillo v.
Love, regarding the termination of the student editor for
publishing potentially libelous material, set the
groundwork for students to actively exercise their First
Amendment rights with regard to their campus
publications. However, the Constitutional protections
afforded college student newspapers have not necessarily
applied to student publications at the high school level.
In its decision to support student newspaper censorship
63


by a high school principal in Hazelwood School District
v. Kuhlmeier, the Supreme Court made a definitive
distinction between student publications that serve as a
news-information source or public forum, such as those at
the college level, and student publications that are
viewed more as an educational/instructional tool, as are
high school student newspapers.
In recent years a new legal dilemma regarding the
regulation of college student behavior has surfaced:
freedom of speech versus hate speech. In an attempt to
maintain sensitivity to and foster campus diversity, some
institutions have created hate speech codes forbidding
students to make offensive statements or symbolic
expressions33 towards other individuals or groups. While
administrators' intentions may have been to provide a
campus climate devoid of ethnic or religious harassment,
the courts may view the situation in a different light.
In 1989 the University of Michigan devised a policy
that prohibited, in academic buildings, behavior that
"stigmatizes or victimizes" a person (or persons) because
of race, ethnicity, religion, gender, or sexual
preference.34 A graduate student sued the university to
stop the enforcement of the policy on the grounds that it
64


violated the right of free expression provided under the
First Amendment.35 Utilizing a categorization analysis
(which allows restriction of speech only in extremely few
and narrow categories/ disregarding equality and
contextual issues), the court found that the university's
policy was too broad and unconstitutionally vague. Doe
represented the first time a university's restriction of
hate speech was challenged in court.
In the prominent hate speech case of R.A.V. v. St.
Paul, the Supreme Court ruled against the legality of a
St. Paul law banning "fighting words" which inflict harm
or incite violence and whose intent is based on racism,
sexism, or homophobia. The defendant in this case was
arrested for burning a cross at a home owned by an
African-American family. While the Minnesota lower court
maintained that the St. Paul ordinance violated the right
to free expression under the First Amendment and so
dismissed the charges, the Minnesota Supreme Court
contended that cross burning constituted overt
expressions of violence and hatred and reversed the lower
court decision.
On appeal to the U.S. Supreme Court, however, the
St. Paul law once again was seen as a violation of First
65


Amendment rights. The Court's opinion was not that such
acts are tolerable or acceptable, rather it focused its
decision on the attempt of St. Paul to censor certain
types of unfavorable actions. The Court found the law to
be too broad in scope.
Colleges and universities were quick to take note of
the rulings in both Doe and R.A.V. Because public
universities are subjected to the same free speech
standards as other public entities, legal counsel began
to review their campus' hate speech codes for legal
vulnerability. Even though private institutions were
afforded more discretion on these matters in the past,
increased public scrutiny and Congressional mandates in
recent years have forced private schools to re-visit
their policies for legal compliance, as well.
Presently, universities remain split on the issue of
hate speech codes. Some colleges view them as statements
of expected standards regarding tolerance and diversity,
and others see the codes as contrary to higher
education's commitment to maintaining an environment
which fosters multiple ideals and freedom of expression.
Regardless of viewpoint, both sides agree that in R.A.V.
the court sent a very clear message to administrators:
66


promulgating policies that are aimed at students' best
interests are not enough to render these policies
constitutionally acceptable. The policies must also be
able to withstand a legal challenge.
Just as universities began having second thoughts as
to the legality of their own hate speech codes, the
Supreme Court upheld a Wisconsin law aimed at imposing
stricter sentences in criminal cases involving victims
who were intentionally and specifically targeted because
of their ethnicity, color, race, religion, sex, age,
disability, sexual preference, or nationality. The
court's support for a more severe sentence than usual for
aggravated assault in the case of Wisconsin v. Mitchell
(in which an African-American man convinced his friends
to beat a Caucasian boy after seeing a movie in which the
converse occurs) focused on the difference between
speech, protected by the First Amendment, and conduct
(i.e. physical assault), not protected by the First
Amendment.
Some administrators may view the Mitchell decision
as supporting campus hate codes, while others do not
believe this decision clarifies the legality of hate
speech policies at all. The court's ruling in Mitchell
67


did not overturn the earlier R.A.V. decision declaring
unconstitutional an ordinance prohibiting personal
expression, regardless of how repugnant it may be. This
leaves Student Affairs administrators to make and
evaluate policies in light of judicial decisions that
often appear conflicting and hair-splitting.
Finally, with regard to First Amendment issues,
Student Affairs personnel must remain sensitive to equal
access to university facilities by religious groups. The
definitive decision in the case of Widmar v. Vincent made
it clear to administrators that the guidelines for use of
campus facilities by student religious organizations must
be the same as those for non-religious groups.
The U.S. Constitution's First Amendment and Supreme
Court decisions in related cases require Student Affairs
administrators to put aside their own biases and values
when making decisions or setting policy. Often, what may
once have been seen as exercising best professional
judgment or acting in the best interests of the students,
may now be challenged by students as oppressive,
arbitrary, and violative of their constitutional rights.
Universities cannot curtail students' behavior, but
they can attempt to regulate it. The concept of "time,
68


place, and manner" has become quite influential and more
the rule of thumb in administrative policy decision
making when dealing with First Amendment issues. The
current legal distinctions between a public and private
forum, as arenas for free expression, were set by the
Supreme Court in 1983 in Perry Education Association v.
Perry Local Educators' Association. The Court's
guidelines indicated that expression in a public forum
would enjoy greater constitutional protections than
expression in a non-public forum. These guidelines have
been used by the Supreme Court in subsequent cases
involving individual or group expression, most notably in
Clark v. Community for Creative Non-Violence and Ward v.
Rock Against Racism. While not directly involving a
higher education institution, Clark has become the
precedent on the validity of "time, place, and manner"
concepts, and the decision in Ward represents its
application to students and higher education. This
concept refers to the restrictions that universities may
impose on students' activities in order to ensure that
the activities do not disrupt the educational process or
violate the educational rights of other students.
Universities have the right to specify an appropriate
69


length of time for the event, the place where the
activity is to be held, and the manner in which the
students are to conduct themselves. These guidelines
have been used in recent years by many institutions to
address student demonstrations against university
policies on investments in South Africa and against
Apartheid. Time, place, and manner guidelines have
produced a livable compromise: students are able to
voice their views and demonstrate their causes, while
universities protect against campus disruption,
destruction, and violence as experienced earlier during
the Vietnam protests. Student Affairs practitioners
cannot lose sight of the fact that even in a mentor-type
of relationship, they must recognize that students have
the same constitutional rights as other citizens in
society.
Another constitutional issue implicating Student
Affairs authority is the Fourth Amendment prohibition
against unreasonable searches and seizures. This is most
prominent for university owned and/or operated residence
living facilities. While most institutions reserve the
right to enter students' rooms in an emergency or under
other "good cause" circumstances, many Residence Life
70


staff enter these premises very cautiously and "by the
books." Legal activity since the 1970s has prompted
university staff to act in ways that preserve students'
rights to enjoy a reasonable expectation of privacy,
regardless of where the students live. Current staff
procedures seldom include the past habit of entering
rooms without prior consent or a resident present, and
confiscating unauthorized or illegal items. Today's
Residence Life staff is more legally savvy, often
accompanied by a member of the campus Public Safety
(security) office when entering a room suspected of
containing an item in violation of campus policy or the
law. Careful observance of the students' rights in
search and seizure activity is necessary in order to
legally sustain subsequent consequences such as
residential dismissal, social probation, university
suspension, and legal arrest.
The Fifth Circuit Court of Appeals' decision in
Piazzola v. Watkins is still the prominent word to
Student Affairs administrators regarding search and
seizure precautions. This decision reversed the prior
conviction of two students in possession of marijuana in
their campus rooms. The university official allowed the
71


students' rooms to be searched without their consent and
without a warrant by the police. Prior written consent
for entry (usually via the contract) and obtained search
warrants must be in place or the action may be
interpreted as unreasonable and, therefore,
unconstitutional. Further, an administrator or officer
cannot enter a student's room only for criminal
enforcement. There must exist an educational, health, or
safety purpose, and a warrant is expected except in
emergency situations. In matters of search and seizure,
the court's instruction to administrators is to afford
students the same rights as general citizens, and the
message to students is that their student status does not
give them special protections they are responsible for
abiding by the same laws as non-students in society.
The legal areas most prominent in forcing university
administrators to strengthen policies and procedures are
those provided for under the Fourteenth Amendment. Due
process and equal protection issues have been the impetus
for a significant number of successful student-initiated
lawsuits.
1960 marked the last time a court supported
university disciplinary action against a student without
72


sensitivity to due process standards. In Steier v. New
York State Education Commission, a student was suspended
for using foul language in a letter to the college
President. After he apologized, the student was
reinstated but again suspended for taking the story to
the student newspaper and berating the administration's
actions. Finally, the student was expelled for
distributing materials containing foul language and for
other inappropriate behavior. Both the circuit court and
the Supreme Court backed the college, indicating that the
student's misconduct warranted the action taken by
university officials.
The landmark case of Dixon v. Alabama State Board of
Education began the precedent for due process
accountability in higher education over thirty years ago.
Involving the dismissal of African-American students
engaged in Civil Rights protests in Montgomery, Alabama,
the Dixon case clearly defined the parameters within
which administrators may make decisions regarding
students' disciplinary status. The court, on appeal,
stated that students at public institutions were due fair
notice of any disciplinary charges against them and a
73


hearing at which they could defend themselves prior to
being suspended or expelled for unruly behavior.
The impact of the Dixon decision was profound.
Administrators reviewed disciplinary procedures for
possible legal violations, and many institutions whose
discipline was handled solely by one professional put
into place "hearing boards" with appeal opportunities for
offenders. Today these boards often include peers to
ensure sensitivity to student issues, proceedings that
may be taped for possible future reference, and the
opportunity for students to be accompanied by legal
advisors in some situations. Since Dixon, courts at all
levels have supported due process protections not only in
situations of student misconduct and discipline, but also
in situations regarding university decisions on student
educational status and certain educational property
interests (e.g. Horowitz and Goss).
Tort Liability
Following judicial establishment of the principle
that constitutional protections applied to college
students, students began to look at other administrative
behavior with greater legal scrutiny. For current
74


Student Affairs divisions the legal area with the
greatest activity and highest risk of liability is tort
law,36 involving negligence and civil liberties. One-
third of all Student Affairs court cases in recent years
involved tort liability.37 Judging by the number and
types of activities that fall within the realm of Student
Affairs (e.g. social events, counseling, living
facilities), it is understandable why tort law concepts
can make administrative decision making a vulnerable
activity.
For negligence to exist, there first must be a duty
of care owed by one party to another, a special
relationship between the two parties. Second, there must
be a breach of that duty, resulting in injury. Third, a
causation must exist between the breach of duty and the
injury. Finally, damages must have been incurred by the
injured party.38 By its very nature and historical
origins, Student Affairs programs oftentimes fit this
description.
Student extra-curricular activity during the 1970s
was reflective of an era in which Student Affairs
practitioners encouraged student groups to create their
own behavioral guidelines and engage in self-monitoring
75


of their members' conduct. Responding to the demands
made by college students of the late 1960s to be treated
as independent adults capable of making their own
decisions, administrators were reluctant during the 1970s
to place strong restrictions on students' social
activities. Instead, guidelines for activities were made
cooperatively by students and Student Affairs personnel
who enjoyed a loosely-defined relationship. At best, the
results yielded greater freedom and less red-tape for
students planning activities. At worst, activities
included underage drinking, destruction of facilities,
violence, and increased incidence of hazing, resulting in
serious injury and sometimes death.
The activities most susceptible to student injury
and/or death are those involving alcohol abuse. The
landmark court decision in Bradshaw v. Rawlings, dealing
with a university's negligent supervision of a student
activity involving underage drinkers, forced Student
Affairs administrators to re-evaluate their role in
sanctioning activities and to re-define "reasonable
manner"39 as it applied to situations involving potential
legal liability.
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The Bradshaw case is noteworthy to Student Affairs
practitioners. Although the Appellate Court subsequently
found in favor of the institution, it was mainly due to
the fact that at the time of the incident the state of
Pennsylvania (where the injury took place) did not have a
social host law holding private hosts liable for the
actions of intoxicated guests. In states where hosts of
private parties may be held responsible for the behaviors
of their guests who become intoxicated, the original
court decision against the university may have been
upheld.
The aftermath of Bradshaw saw Student Affairs
practitioners tightening the reins on student conduct by
setting clearer guidelines and requirements for
university-sanctioned activities, and expecting students
to abide by all federal, state, and local laws. Some
institutions went so far as to formally register social
events, thus creating a double-edged sword with respect
to institutional liability: the more written
restrictions there are, the greater the attachment by
which a university may be held liable (this will be
discussed more fully in the next section).
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Even with greater legal savvy exercised by
universities, the Student Affairs-related injury cases
that have been filed in recent years still predominantly
involve the presence of alcohol. In the past three years
(1990-1993), two-thirds of all Student Affairs tort cases
involved alcohol.40 The notable case of Whitlock v.
University of Denver, in which a student was injured
while jumping on a fraternity house trampoline,
reinforced the message brought forth in Bradshaw
regarding administrators' responsibilities and duties in
supervising activities on university property. Although
the court recognized the student's personal negligent
behavior, the court initially found the institution
liable for negligence due to the unsupervised trampoline.
Later the Colorado Supreme Court reversed the decision
against the University of Denver because it found the
institution did not have a duty of care to the student in
this situation.
Although higher courts (on appeal) appear to favor
institutions in negligence cases, they have made it clear
that universities may be held responsible, especially in
instances where coercion is present. These situations
usually involve hazing activities where a student is
78


forced or required to drink excessive amounts of alcohol.
In Quinn v. Sigma Rho Chapter, Beta Theta Pi Fraternity
the court ruled that a student, who endured severe brain
damage after a fraternity ritual required him to consume
an over-abundance of alcohol, had a legal claim against
the fraternity and the institution due to the illegality
of hazing and the element of coercion, regardless of the
state's social host law.
Some state legislatures, as in Colorado, have passed
laws specifying the damage amount of a tort claim against
the state or its agencies.41 Because public higher
education institutions are subjected to the same laws and
protections as other state agencies, these universities
also may benefit from the financial safeguard provided by
these caps on liability claims. For example, the state
of Colorado's imposed limit on liability claims is
$150,000 for one person or $600,000 for two or more
individuals. This is the maximum dollar amount injured
parties may collect in a tort lawsuit against the state
or its agencies.
Student plaintiffs over the years have maintained
that their universities had a duty to supervise
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activities, protect students from receiving injuries, and
to guard against the bad acts of others and outsiders.
However, the courts in these cases have tended to rule on
behalf of institutions for reasons and factors demanded
by the students, themselves, since the 1960s: increased
independence, freedom of movement, and adult status.
This includes the courts' "recognition that a post-
secondary institution is not an insurer of the safety of
its students and the awareness that students are adults,
able to take care of themselves."42 The author also
indicates that courts now mostly disregard the once-
touted unique student-university relationship in favor of
students' demands for autonomy and adult status.
State courts have followed suit by upholding the
notion that students are responsible for their own
behavior even when under the influence of alcohol or
other drugs. In one particularly noteworthy case, Van
Mastrigt v. Delta Tau Delta, the court definitively
declared that universities do not automatically have a
duty of care in every incident involving a student. In
Van Mastrigt a student, found guilty of murdering another
student, sued his school insisting that he committed the
crime only due to the alcohol and drugs given to him at a
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university fraternity house. The court dismissed the
case, finding no duty of care by the university and
affirming the student's self-responsibility for his
actions. The Colorado Supreme Court in its Whitlock
decision summed up the current state of tort liability
best, by indicating that college student demands in
recent years for increased autonomy and decreased
regulations can only steer the courts to view students as
adults capable of making their own decisions and acting
in their own best interests.43
In injury situations where alcohol is not a factor,
the courts also have been reluctant to hold universities
liable when there exists no breach of contract or
feasible way for the institution to foresee an injury or
crime. This is especially so in cases regarding a
student's personal safety. However, if the court
concludes that university written materials implicitly
lead one to believe that facilities (i.e. classrooms,
meeting rooms, residence halls, and other living
facilities) are secure or that administrators are aware
of conditions that could lead to impending injury or
crime, the judicial decision may be against the
university.44 Duty of care may be applicable when the
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administrators do not take appropriate precautions or
ignore potentially injurious situations.
General Findings of Past Research
A review of the applicable literature gives one the
impression that authors are warning Student Affairs
professionals to beware of increased litigious activity,
and to revisit how they set policy and make decisions
with an eye toward self-protection. Stepped-up legal
activity has urged a more cautious approach. Janosik and
Andrew utilized the terms "startling" and "worrisome" to
characterize universities' increased involvement in
litigation where the courts are "filled with claims" of
civil liberties infractions.45 Hammond stated that
Student Affairs professionals have a "common fear"
concerning issues of legal liability and negligence in
their positions.46
Past Strategies for Dealing with the
Trend of Increased Litigation
Universities have responded with multiple strategies
for dealing with the caution imposed by increased
vulnerability to legal action. To address legally
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sensitive areas and to prove to society that they are
capable of managing their own affairs, many institutions
put down in writing a myriad of new policies and changes
in old ones to eliminate ambiguity and diminish potential
legal liability. Student Affairs administrators have
generally worked to ensure that these new guidelines for
student behavior were included in official codes of
conduct or student handbooks and readily made available
to all students.
The zeal to create a policy to address every
perceived legal issue has become a double-edged sword.
While a strong visible stance on the part of institutions
may have decreased the chance of interference by the
government, courts, and legal agencies, administrators
also have learned that the more they committed to
writing, the more for which they could be held liable in
court. Designed to protect the university, these
policies also have had the effect of placing colleges in
a duty of care role, making them more responsible for the
students' well-being and vulnerable to legal action if
the policies are not enforced or are not enforceable.
In Student Affairs offices this double-edged sword
has been exemplified by the transformation of policies
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and procedures concerning alcohol consumption. Elaborate
flow-charts and step-by-step guidelines for registering
and monitoring campus parties have given way to simpler,
more concise statements. The new policies typically state
that the university will comply with all laws and legal
requirements regarding alcohol possession and
consumption, and students will be expected to conform to
the same laws and requirements. Students in violation of
the law will be subjected to appropriate discipline. The
latter policy affords institutions more freedom of
movement and wider discretion.
Other responses from universities have included
efforts at political protection. When the 1980s saw
federal and state funding support curtailed, some
institutions sought to increase their political
understanding and influence by employing "legislative
liaisons" to serve as lobbyists and watch-dogs on their
behalf. The most visible reaction, as discussed in
Chapter 1 of this thesis, has been to establish in-house
legal counsel. Many universities have seen this as an
expedient way to obtain quick and reliable legal opinions
from a knowledgeable professional whose primary focus is
on that institution, rather than on multiple agencies (as
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can be the case when universities secure legal counsel
from the Attorney General's office). The preferred
strategy, however, is not designed to wait until legal
trouble arrives before seeking advice. A more
collaborative relationship or consulting partnership
between Student Affairs and legal counsel to proactively
address issues is the norm today.47 At many
institutions, an in-house attorney serves as a standing
member of various committees throughout the university.
Whereas traditionally Student Affairs professionals
relied on appropriate educational and theoretical methods
for reaching conclusions, there are now additional models
of decision making. In addition to preventive law
concepts utilized by attorneys and risk management
processes practiced by Business Affairs, Janosik and
Andrew offer Student Affairs professionals a seven-step
decision making model "to prevent or reduce the potential
loss from negligence, civil rights, discrimination, or
other areas of liability."48 The seven decision stages
include identification of sources of potential liability;
risk analysis and acceptability level to the university;
determination of probable loss; selection of low-risk
strategies; implementation of selected alternatives;
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