JMU Board of Visitors, Oct 1, 2010 meeting

The JMU Board of Visitors met October 1, 2010 at JMU. According to the Daily News Record:

•   "..President Linwood Rose vowed that the university would continue to fight against "the culture of alcohol" at the school.  "Transforming the alcohol culture is obviously an initiative that we have undertaken for this year", Rose said in his in remarks to the board.  "It's not that we hadn't been doing things previously, but as I've said to our students and faculty and staff and in the media, Springfest last year..really caused us to look at where we were with alcohol on our campus." 

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My idea of an Independent Alcohol Commission did not come up. Maybe later. The good news is the at least the topic of transforming the negative alcohol culture is still one area of focus. The bad news is there still does not seem to be a concerted plan of action to address policy changes at JMU that could impact directly the students at JMU- namely going form a "Three Strikes" policy to a zero tolerance policy. Remember the JMU study identifies that "suspension" is viewed by students to be the most likely item to change decisions about alcohol use and risky behavior.

"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?

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.