The intersection of liability and privacy in higher education

-- By AndrewSavage - 03 Mar 2020

In Brief

1.The doctrine governing duty of care universities owe to students is evolving to require protection from foreseeable third-party harm on campus.

2.Universities have vastly expanded the social services they offer increasing expectations of protection and sources from which to identify “threats.”

3.An expanded duty to protect students from third party harm coupled with an array of touchpoints where universities interact privately with students will create a “privacy crisis” as they seek to centralize this information and proactively identify dangerous individuals.

Historical Context

Duty to Protect Against Third-party Harm

The Restatement (Second) of Torts provides two exceptions to the general rule that there is no duty to prevent third parties from causing physical harm to another:

“(a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relationship exists between the actor and the other which gives to the other a right of protection.”

Dissolution of the Special Relationship

Most relevant to the issue of university liability is the latter proposition, the special relationship of an institution protect its students. Prior to the cultural revolution of the 60’s and 70’s, universities assumed a role of loco parentis, “in place of a parent”, to their students. The legal doctrine, establishing a special relationship and high standard of care between university and student, derived from the intense regulation administrations pressed upon their charges. The 60’s brought changes to the role of these institutions. Bradshaw summarized the change explaining that “college students today are no longer minors; they are now regarded as adults in almost every phase of community life… regulation…of student life…has become limited.” Bradshaw v. Rawlings, 612 F.2d 135, 138-39 (3d Cir. 1979).

These changes bore a general rule that “the university-student relationship alone is not a 'special relationship' in that no duty of care arises from the relationship for the university to protect the student from injury from third parties.” 31 Causes of Action 2d 675 (Originally published in 2006).

Regents of Univ. of California v. Superior Court

Developments in the doctrine have shaken several decades of assumption that Universities have no generalized special relationship with students. The most discussed has been Regents of Univ. of California v. Superior Court involving a student, who suffered severe injuries after attack during chemistry laboratory by another student who had been treated by university for symptoms indicative of schizophrenia disorder. Regents of Univ. of California v. Superior Court, 29 Cal. App. 5th 890, 240 Cal. Rptr. 3d 675 (Ct. App. 2018), reh'g denied (Dec. 21, 2018), review denied (Mar. 13, 2019)

The Regents Court found a general special relationship does exist between university and student. Specifically, “colleges and universities have a duty to protect their students from foreseeable acts of violence. The court does limit the liability to acts in classroom or during curricular activities but that that university was aware of information that placed or should have placed it on notice that perpetrator presented foreseeable threat of violence to other students, and that university failed to act with reasonable care in response to such threat.

Procedural Impact

In essence the Regents decision shifted the question from whether a duty exists, a question of law, to whether that duty was breached, a question of fact. Though the case has only been remanded, the appellate court has dramatically shifted the balance of tortious elements. Establishing a duty to protect students from third parties on campus or during curricular activities dramatically increases the institutions liability and ends their reliable route to summary judgement. The central question shifts to breach and specifically the foreseeability of danger. A factual question, this opens university institutions to intense scrutiny.

In reviewing foreseeability, juries will need to me two separate factual determinations:(1) what information university knew about student in question; and (2) whether, based on that information, it was foreseeable that the student posed a threat of violence. The sources of this factual information are where significant privacy concerns arise. A jury may consider “when assessing whether a particular student posed a foreseeable risk of violence...prior threats or acts of violence by perpetrator…opinions of examining medical professionals, and observations of students, faculty, family members, and others in the university community.” Regents 29 Cal. App. 5th 890.

The Modern Role of Higher Education

The nature of the foreseeability inquiry confronts a key development universities have undergone in intervening years. Over the past decade, universities have begun providing a vast array of new programs due to their own competition and the pressing social concerns of students. These programs, including on-campus psychiatrists, rape crisis centers, LGBTQ support networks, vastly expand the bundle of services one associates as within the “product” of a university. Further, they expand the touchpoints with which agents of the university interact with and collect information relevant to the foreseeability analysis. Fearing significant liability, institutions cannot afford to have information siloed within a range of bureaucracies that make its social programs. The interest in centralizing this information to make educated decisions on the safety of students will be the center of coming privacy controversy.

To do: •Data: have lawsuits against universities for third-party harm increased this decade •Identify existing procedures between university social programs for communication and identification of dangerous students •Simplify case law summary/historical context