Can Governor McDonnell help JMU out?

After the response I received from the rector of the JMU Board of Visitors, I decided to go higher and ask the Governor to help out.

JMU has a "silver bullet" but does not use it. WHY?

What would motivate JMU students to change their alcohol use behavior? Is there a "silver bullet"?  As it turns out this issue has been put to the students directly. In a JMU research survey students were asked:

• What might make you less likely to drink excessively and engage in risky behavior?

 The Answer:   33.3%,  answered that "suspension" makes students less likely to drink.

The students were asked another question:

• What might make your friends less likely to drink excessively and engage in risky behavior?

The Answer:   34.4% answered that "suspension" makes their friends less likely to drink.

( see "Alcohol and Drug Use Among James Madison University Students" by Laurie Gabriele, research assistant, The Office of Substance Abuse Research, JMU 2008.(available at the JMU web site)

The students have identified the "silver bullet"- suspension.  JMU has control over the most motivating factor to change student behavior and the negative alcohol culture.  Suspend students from JMU for a semester when they commit alcohol misconduct.  According to the report from JMU Judicial Affairs, suspension is an infrequent sanction (see earlier blog post- JMU "Three Strikes" policy and the data).

WHY has JMU not used suspension in a more direct and frequent manner when it seems clear that the students have identified this sanction as the one most likely to impact their own and other students choices to engage in alcohol use and risky behavior?

• I suggest one reason is that the JMU administration (which controls the "Three Strikes" policy and other policy dealing with alcohol and drug use) is part of the negative alcohol culture and not able to change their paradigm to impact real change
• Others have also suggested to me to "follow the money" and see where the alcohol industry has invested in JMU and who is making money by maintaining the negative alcohol culture. (remember the statistic: College students spend  $5.5 billion dollars a year on alcohol- from "Dying to Drink: Confronting Binge Drinking on College Campuses, by Henry Wechsler and Bernice Wuethrich, 202 Rodale)

JMU's research on student alcohol and drug use 2008-"..Progress towards long-term goals is not being made"

JMU published it's own research in 2008 titled "Alcohol and Drug Use Among James Madison University Students" by Laurie Gabriele, research assistant, The Office of Substance Abuse Research, JMU.(available at the JMU web site)
 Key Findings:

• Of the students reporting, 83.3% report that they have used alcohol in the past 30 days. This percentage has steadily increased through the years with the 2008 population reporting 83.3%, which is the highest 30-day prevalence since data has been collected at JMU and well above the 2008 national reference group (71.9%)
• Students report they consume 8.0 drinks per week. The national average is 5.5.
• 62.2% of the studens reported having "binged" (having five or more drinks in one sitting) in the last two weeks.  The national average is 46.7%
• Since the early 1990's various university alcohol prevention task forces have attempted to re-shape the campus culture and correct student misperceptions to reduce alcohol related problems on our campus
• 50.5% of the students reported some form of public misconduct.  Examples include being arrested for DWI/DUI, trouble with police or college authority, or driving while under the influence at least once during the past year as a result of drinking or drug use.
• 39.1% of the students reported that they, at least once during the past year, as a result of drinking or drug use, experienced some kind of serious personal problems including the following experiences:
• Suicide thoughts, suicide attempts, becoming hurt or injured, trying unsuccessfully to stop using alcohol, tobacco or other drugs, being taken advantage of sexually and performing poorly on a test or important university project and less serious and more common-place problems such as memory loss, nausea or vomiting and hangovers

• Students identified the following ways in which other studens' alcohol consumption negatively affects their academic, social or other aspects associated with the quality of life on campus:
• interrupts studying
• makes you feel unsafe
• messes up physical living space
• adversely affects athletic team/other groups
• prevents you from enjoying events
• interferes in other ways

• Prior to their arrival on campus, 38.3% of students feel that JMU tolerates drinking but tries to keep students from becoming drunk and disorderly.
• The majority of students (48.9%) report that their best sexual experience did not involve drinking alcohol
• The majority of students (56.8%) report that they prefer a non-alcoholic activity on a normal Friday or Saturday night
• Consistent programming that makes an impact on the campus culture is imperative to reverse the negative trends seen at JMU

CONCLUSION:
"Sporadic programs with short-term results are occurring, but progress towards long-term goals is not being made."

JMU "Three Strikes" policy and the data

What is the "Three Strikes" policy?
" Once the Office of Judicial Affairs has found a student responsible for an on-campus or off-campus alcohol or durg violation, they will receive a sanction and a strike.  After being found responsible for three alcohol or drug violations, a student may be suspended"
(on the web at: www.jmu.edu/judicial/student/studentfaq.shtml)

This policy says "may" not "shall" and therefore is not a mandatory outcome. Looking at the data from Judicial Affairs it is clear that this is not a very frequent sanction. In the Fiscal Year 7/1/2009 to 6/30/2010 the total number of "Suspended from University" was 35.  That is out of 3575 sanctions and 2426 violations.  One has to wonder why JMU does not use this powerful incentive for behavioral change more frequently?  This is where I believe it shows evidence of the JMU administration enabling and colluding with the negative alcohol culture by not holding students accountable for their alcohol behavior misconduct, even after three strikes. One has to wonder how many times does a student have to binge drink, to get caught and brought up before judicial affairs three times?  This policy is the institutionalization of enabling. In my opinion this is JMU directly being responsible for supporting the negative alcohol culture and contributing to harm and injury to students.

Tort Liability for universities

Tort Liability:
"One of the primary areas of legal liability that risk management addresses is tort liability, which is generally defined as "a civil wrong, other than a breach of contract, for which the courts will allow a damage remedy" (Kaplin and Lee p 98)"
Do universities have a duty to protect students from harm?   "... In Mullins v. Pine Manor College (1983) and Tarasoff v. Board of Regents of the university of California (1976) , the courts clearly articulated heightened duties for colleges and universities to their students and others ....A series of cases in the 1990s including Furek v. The University of Delaware (1991) and Nero v. Kansas State University (1993) continued in the view of earlier duty cases as courts ruled that institutions had an obligation in the prevention of foreseeable harm..."

(from Risk Management in Higher Education-Tort Liability, Other Sources of Risk, on the web at http://education.stateuniversity.com/pages2378/Roisk-Mangement-in-H..)

An interesting set of question develops.

• Are the springfest riots a foreseeable event that JMU has prior knowledge of and does JMU have any responsibility to take action to protect students from harm at springfest? 
• Do any of the legal theories of liability apply to JMU and the lack of effective action to change the negative alcohol culture?  Does the Springfest event meet one of these basis of liability: 2) when a prevailing dangerous practice is common by students (such as hazing in pledge initiations), it is known by college officials and addressed in policy statements, but reasonable efforts are not made to stop or limit such practices, and 3) officials are aware of a specific dangerous activity where injury results, but do not take reasonable steps to limit the possibility of the foreseeable danger..."
• Are there JMU cases with similar sets of facts to previous court decisions that might lead to lawsuits?
• Does the Tarasoff v. Board of Regents of the University of California case have some applicability to JMU.  " In Tarasoff, the court determined that the duty to warn others about threatened harm arises only when there is a specifically foreseeable person or group or persons targeted by the threat of harm.."  (see College and University Liability for Violent Campus Attacks, by Bret A. Sokolow, W. Scott Lewis, James A. Keller and Augrey Daly, Journal of College and University Law , 12/.4/.20008)
• Does the "special relationship" theory of liability apply to JMU as it relates to students harmed by alcohol activities.
• Is there a case where a plaintiff can show that the university had specific knowledge, putting it on reasonable notice that the person would act imminently to cause harm involving alcohol.

Perhaps there are legal minds out there who would find this an interesting area of law to explore.

Is JMU administration responsible for the negative alcohol culture and taking steps to deal with the problem?

On the one hand students are over 18 and are adults who are responsible for their own choices and behaviors. In the JMU Student Handbook under the Student Rights & Responsibilities section #3 notes "James Madison University is no sanctuary from the general law, furthermore, the campus is a community of growth and fulfillment for all rather than a setting described in the concept of in loco parentis."

The legal doctrine of in loco parentis "...existed in the 1950's and prior.  This view held that a college replaced the role of a parent when one entered an institution of higher education.  The institution had virtually complete control over the behavior of students (subject to the limits that parents have in controlling the behavior of their own children) and thereby had similar obligation as a parent over safety issues"

  Over the years the legal environment has changed from the in loco parentis doctrine to the "bystander" attitude to the 1990s establishing the "Duty Era".  A number or court cases have found that colleges and universities owe a "duty" to students under several legal theories of liability.
"...Two basis fact patterns have resulted in defendant success: 1) when a potentially dangerous physical condition exist (such as faulty locks on dorm) and repairs are not made, 2) when a prevailing dangerous practice is common by students (such as hazing in pledge initiations), it is known by college officials and addressed in policy statements, but reasonable efforts are not made to stop or limit such practices, and 3) officials are aware of a specific dangerous activity where injury results, but do not take reasonable steps to limit the possibility of the foreseeable danger..."
Liability theory of negligence has four elements.

•  the establishment of a duty
• the breach of that duty
• harm or injury has occurred
• the breach of the duty was the proximate cause of the harm or injury

"...the courts are rightly applying reasonable care standards to colleges and universities similar to that applicable to commercial operations in general.  This reflects the reality that colleges are not only academic centers,but have many other roles, such as landlord with respect to student and faculty housing and that as a place open to the public where visitors are welcomed.  In those roles, courts are increasingly holding the institutions to the reasonable care standard when duty exist under rules applicable to other business establishments." 
 
(from Colleges' Civil Liability Exposure Related to Student Safety,on the web at
compelledtoact.com/involvement_pages/Litigation/Civil_law_an..)

* the article notes that most of the above discussion is drawn from "The Rights and Responsibilities of the Modern University, (Carolina Academic Press, 1999), by Robert D.Bickel and Peter F. Lake. Additionally, information was drawn from "Shared Responsibility: The Duty to Legal Externs, by Kathleen Connolly Butler.

School Rituals at JMU

"At James Madison University in Harrisonburg, Virginia, the 2000 school year began with mass arrest as more than seven hundred partying students confronted riot police and state troopers.  The students were celebrating school's beginning with an annual progressive party, drinking at seven different student apartments in residential neighborhood.  At least twenty students were arrested, many for underage drinking and public drunkenness, before police broke up the melee"

 (above quotes from: "Dying to Drink: Confronting Binge Drinking on College Campuses, by Henry Wechsler and Bernice Wuethrich, 2002, Rodale Inc)

This JMU ritual led to the April 2010 riots with over 8000 JMU students and non students participating in the Springfest event.

SEE for details:
http://www.nowpublic.com/world/jmu-riot-video-dozens-arrested-jmu-springfest-2010-riot-2603890.html

What is the "Scope of the Problem"?

Negative Alcohol Culture is not unique to JMU.   Research and data exist that examine the extent of this problem nationwide on college/university campuses.


SCOPE OF THE PROBLEM:
"National surveys indicate that from 1999 to 2005 ( Substance Abuse and Mental Health Services Administration 200, 2002, 2006) the percentage of 18-to 24 - year old college students who drank five or more drinks on an occasion in the previous 30 days increased from 41.7 percent to 45.2 percent, a significant 8 percent proportional increase."

"NIAAA reports have documented that heavy-drinking college students not only place their own health at risk, they jeopardize the well being of others:

• As many as 46 percent of the 4,553 people killed in 2005 in crashes involving 18- to 24- year old drinking drivers were people other than the drinking driver.
• Further, a national survey in 2001 indicated that over 690,00 college students that year Nationwide were hit or assaulted by a drinking college student and
• 97,000 students were the victim of a date rape or assault perpetrated by a drinking college student (Hingson and Zha 2009)

(From "Focus on College Drinking and Related Problems, Vol. 33 Nos. 1 and 2 , 2010,  Magnitude and Prevention of College Drinking and Related Problems, by Ralph Hingson SC.D, M.P.H. , Director, Division of Epidemiology and Prevention Research, National Institute on Alcohol Abuse and Alcoholism, Bethesda, Maryland.)

  "The Harvard School of Public Health College Alcohol Study (CAS) is an ongoing survey of more than fifty thousand students at 140 four-year colleges located in forty states.... The participating schools were selected to represent public and private, urban and rural institutions of all sizes and academic competitiveness."

"..we defined the term binge drinking for men as having five or more drinks in a row at least once in the prior two weeks, and for women as having four or more in a row....We classify as "occasional binge drinkers" those students who drank in this manner once or twice in the previous two weeks, and we classify as "frequent binge drinkers" those who drank in this way three or more times in two weeks..."

"...The CAS have established a strong relationship between binge drinking and the number and severity of problems that students face.  For example

• frequent binge drinkers are seventeen times more likely to miss a class, ten times more likely to vandalize property, and eight times more likely to get hurt or injured as a result of their drinking than are students who drink but do not binge..."

U S Surgeon General David Satcher called this " the most serious public health problem on American college campuses today"

"...One study estimates that fourteen hundred college students aged eighteen to twenty-four are killed each year as a result of drinking.  They die from alcohol-related motor vehicle crashes, other unintentional injuries, and alsohol overdoses. At least half a million more students suffer unintentional injury while under the influence..."

"..College students nationally spend $5.5 billion on alcohol each year, more than they spend on soft drinks, tea, milk, juice, coffee, and schoolbooks combined..."

"..Out CAS has determined that two in five college students, including freshman, can be called binge drinkers..." 

COLLEGE DRINKING FACTS:

• 73 percent of fraternity and 57 percent of sorority members are binge drinkers.
• 58 percent of male athletes and 47 percent of female athletes are binge drinkers
• Frequent binge drinkers constitute less than one-quarter of all students (23 percent) but consume three-quarters (72 percent) of all the alcohol college students drink.
• A ring of bars and liquor stores surrounds most colleges. At one college we found 185 alcohol outlets within two miles of campus

 (above quotes from: "Dying to Drink: Confronting Binge Drinking on College Campuses, by Henry Wechsler and Bernice Wuethrich, 2002, Rodale Inc)

Alcohol and Drug Violations and Sanctions

• From the previous post for the Fiscal Year 2009-2010, the total alcohol and drug violations including both on campus and off campus figures was 1692.  
• The total violations of all types was 2426. The alcohol and drug violations thus account for the vast majority f the Judicial Affairs caseload for the fiscal year.

 The sanctions total more than the number of violations due to multiple sanctions being assigned to a case.

• Of the all of the sanctions the most frequent are probation, conditional sanction and "By the Numbers Workshop" which added together total 2773.  
• The total of all sanctions was 3575. 

  My question from reviewing the data is quite simply:

Is the program working to effect change in the alcohol behavior of students?

I think not.  

The numbers from 5 years ago show proportions much like the current fiscal year and the numbers for this fiscal year are much higher.

JMU Judicial Affairs public data on Alcohol and Drug violations and Scanctions

September 14, 2010

                                            

The Office of Judicial Affairs

Mr. Josh Bacon, Director

980 Frederikson Service Drive

MSC 2901

Harrisonburg VA 22801

                                                                                                                        Re: FOI request

Dear Mr. Bacon:

    I am requesting information available under the Virginia Freedom of Information Act. Specifically I am requesting copies of any reports,  or other documents  concerning the number of cases that are dealt with by Judicial Affairs, the number of sanctions and the type of sanctions, the number of sanctions that involve alcohol or drug violations, the number of suspensions, and the number of expulsions for violations of drug and alcohol policies.  I would like the data for the past 5 academic years.  I am looking for aggregate data not any identifying information about specific students.  I am looking for data that is in existing documents. 

               I appreciate your assistance with this matter. You may email me the information or mail it to:

                              Joseph G. Lynch

JMU Board of Visitors supports Rose

Letter to JMU Board of Visitors

After I wrote the Open Forum in the DNR, I sent a letter to the Rector of the JMU Board of Visitors to ask the Boards help in dealing with the negative alcohol culture at JMU (see letter below)

August 27, 2010

Mr. James E. Hartman

Rector JMU Board of Visitors

235 Wynnwood Lane

Harrisonburg VA 22802-8323

Dear Mr. Hartman:

               I am writing to you because I am concerned about the “negative alcohol culture” that has developed at James Madison University.  I am concerned about the response that President Lynwood Rose has made to correct this culture and find his response to be woefully inadequate.  I have written an editorial letter to the Daily News Record concerning this matter (see attached letter to the editor). I am asking you as Rector of the JMU Board of Visitors to consider a motion to establish an independent commission on the negative alcohol culture at JMU and direct the commission to develop meaningful policy changes to seriously address this problem.  I have written letters to Mr. Larry Rogers and to Mr. Joseph Funkhouser II asking them to make this motion at the Board of Visitors meeting scheduled for  October 1, 2101.

               My hope is that you are as concerned about this issue as I am and will help JUM to make the changes necessary to correct the negative alcohol culture.

                                                                                                         Sincerely,

                                                                                                         Joseph G. Lynch

Trnasforming the JMU Alcohol Culture

JMU president Lynwood Rose sent an email on August 18, 2010 to new and returning students concerning"...some lingering issues surrounding negative alcohol-related events off campus..." last spring.  President Rose declared "...JMU will not be defined by a negative alcohol culture..." and presented a plan for "Transforming the JMU Alcohol Culture: Pursuing Excellence, Integrity and Mutual Respect."  (see  breezejmu.org/2010/08/19jmu-introduces-new-alcohol-enforcem.)  As I read the plan I was struck by this part of the plan: "Parent/Guardians will be sent a postcard one to two weeks prior to their student's 21st birthday, encouraging parents/guardians to talk with their son or daughter about having a healthy celebration"  If this is the kind of effort that is suggested to change the JMU negative alcohol culture then President Rose  does not understand the problem. This stared me to think how could I influence the JMU process of change. My first step was to send an Open Forum to the Daily News Record.  (see below or go to DNRonline Open Forum Sept 6, 2010)

OPEN FORUM :  JMU Independent Commission on Alcohol Culture

 I read the August 18, 2010 letter from JMU President Lynwood Rose to new and returning students concerning changing the alcohol culture at JMU.   At first glance it appears the JMU administration has finally stopped minimizing and denying its collusion in creating an alcohol party school environment. But as I read the details of the new “enforcement policies” it appears to me that JMU is presenting a public relations response with little actual change to impact the real problem of epidemic violation of Virginia law by JMU students.  President Rose’s letter gives a list of statistics from its own survey of JMU students. 

• 44% reported that alcohol caused them to behave in ways they later regretted
• 28% said their alcohol-induced behavior left them feeling guilty
• 48% of the students reported that their alcohol consumption resulted in them not remembering a period of time
• 70% of incoming freshman indicated that they had used alcohol in the past month

This data demonstrates that these adults (yes all JMU students are over 18 and are adults) will have to change their behavior in order to change the alcohol culture at JMU.  The issue for JUM is “How do you get adults to change their behavior?”

President Rose letter suggest several areas:

 Enforcement:   Have JMU police, Harrisonburg police and ABC agents increase their enforcement of Virginia laws regarding alcohol and for JMU to review the current “three strikes policy.” 

It is my experience that these agencies are already committed to enforcement of the law and certainly increased effort to enforce existing law is a good idea but requires no action by JMU itself.

The “three strikes policy” is an area where JMU can have a direct impact on the culture of alcohol.  On the JMU web site it notes that “After being found responsible for three alcohol or drug violations, a student may be suspended for a minimum of one semester.”   Why does it take three violations of Virginia law to get suspended from a Virginia funded institution?  If you want to change the alcohol culture go to a “one strike and you are out” policy.   This is something JMU could do directly to impact the problem.  JMU has about 12,000 applicants each year for 3000 openings for freshman students. Why tolerate alcohol misconduct when there are at least 4 other students waiting in line for the spot that alcohol misconduct student are taking up at JMU?  JMU already has a Substance Abuse Prevention Initiative and counseling available for students who want to address any problems with alcohol or drugs.  If these adults choose not to seek treatment but to violate law then JMU should be intolerant of this behavior and suspend students on the first strike.  This will have a real impact on the alcohol culture in a few years.

Parent Involvement: Parents will be notified after a student’s first alcohol violation…. Parents will be sent a postcard one to two weeks prior to their student’s 21^st birthday, encouraging parents to talk with their son or daughter about having a healthy celebration.

               JMU has to decide if their students are adults or children.  I vote for treating students as adults.  JMU’s Mission statement is: “We are a community committed to preparing students to be educated and enlightened citizens who lead productive and meaningful lives.”   Educated an enlightened citizens are adults and are responsible for their choices not their parents.  The policy of notifying parents is paternalistic and infantilizing and works against the mission statement of JMU.

Education and Programming:  The university will conduct an aggressive “know your guest” campaign…”services for a weekend” program…. Work with fraternities and sororities…target alcohol abuse reduction efforts ….and educate students about the safe and responsible use of social media. 

  These all sound like good efforts and one would hope that education efforts would be an area that JMU would perform very well.

               I find President Rose’s response to the alcohol problem at JMU to be woefully inadequate.  I think it is time for the JMU Board of Visitors to appoint an independent commission to study and make policy recommendations to drastically impact the alcohol problem at JMU.  We have epidemic violation of Virginia laws and riots and President Rose wants to send a postcard to parents telling them their student is about to turn 21.  We are at a crisis point now; we don’t want to wait for a student to die because of a lack of adequate action by President Rose.