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Monday, October 4, 2010

"The Rights and Responsibilities of the Modern University: Who assumes the risk of College Life?"

"The Rights and Responsibilities of the Modern University: Who assumes the risk of College Life?" by Robert D. Bickel and Peter F. Lake, Carolina Academic Press, Durham, North Carolina 1999.
     This is an interesting book. It looks at the legal history of University-student relationship law. I started to read this book and consider the JMU situation at the same time. With the JMU negative alcohol culture the question arises Who is responsible for the problems the JMU  negative alcohol culture causes? Is it JMU? Is it the individual student? Is it Fraternities?   Bickle and Lake describe three eras of University-student relationship legal history:
  • the "In Loco Parentis" era,
  • the "Bystander" era and 
  • the "Duty" era.  
  In the JMU Student Handbook, under the Student Rights and Responsibilities section # 3, it states that "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."   JUM clearly asserts that is not operating in the paradigm of in loco parentis.
It appears that JMU for many years has been in the "bystander" era and only recently does it seem that JMU is considering entering the "duty" era.  
   Bickel and Lake suggest the the current era, the "duty" era reflects that  "..The new image is one of shared responsibility and a balancing of university authority and student freedom.  Duty is the vehicle which courts use to make this happen" (p105)  They note that "..Courts today enforce business-like responsibilities and rights while preserving some uniqueness in college affairs.  Judges are increasingly willing to apply traditional negligence and duty rules to university life and activities and are increasingly less willing to view the university as subject to traditional insularity rules.." (p105)  Bickel and Lake note that "Courts typically break the questions presented into functional categories like these:
  • Premises/landlord responsibility with respect to conditions on premises (like broken locks);
  • Responsibility to control dangerous persons on campus and/or prevent harm caused by them;
  • Responsibility regarding student activities (liek chemistry lab, sports, field trips, etc.);
  • Responsibility for student alcohol use and abuse (p108)
  In terms of cases determining the responsibility for student alcohol use and abuse "The messages of the cases seem mixed: e.g. Tanja H. plaintiff looses, Furek plaintiff wins. One fact appears clear: The duty era has effectively ended almost all aspects of college insularity except with  respect to alcohol use on and off campus.  The pendulum has swung away from extreme student freedom models. The duty era has  been an implicit search for a balance between university authority and student freedom and for shared responsibility for students/safety risk..." (p157)  Also "....there are effective techniques to affect some of the most dangerous aspects of disorder that are connected with alcohol use.  The university is not a bystander, and it is not helpless-there are reasonable solutions" (p156) 
(cases referred to are Furek v. The University of Delaware, 594 A.2d 506 (Del. 1991) and Tanja H. v. Regents of the Univ. of Cal., 278 Cal. Rptr. 918 (Ct. App. 1991)
     The actions by JMU to transform the negative alcohol culture appear to be moving toward a model of shared responsibility for the university-student legal relationship.   Do these steps go far enough to actually change the culture at JMU? A variety of activities influence changes in culture- education, raising awareness, internal policy changes, student initiated involvement, and at times lawsuits.  Will it take a lawsuit for JMU to make meaningful changes to it's culture?

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