Duke University Alumni Magazine







AVOIDING LEGAL PERILS
RISKY BUSINESS
BY BRIDGET BOOHER
ILLUSTRATION BY JOHN S. DYKES

From monitoring campus crime to grappling with affirmative action, from ensuring that classrooms are accessible to complying with Title IX, universities face a daunting set of legal challenges.

hen the Sky Devils Club wanted to parachute onto East Campus during commencement weekend festivities, Kathy Van Nest said no. Ditto to the company that wanted to offer students the opportunity to bungee-jump off a tower erected on West Campus. However, the vendor proposing a Velcro wall, against which students could fling themselves and get stuck, was given the green light.

For Van Nest, now in her sixteenth year as director of risk management for the university, these decisions were fairly easy to make. Other scenarios are not so clear-cut. How to approach post-basketball game bonfires, where injuries and out-of-control behavior are almost inevitable? Or making sure that a campus tragedy like the one in 1992, when an undergraduate was killed after falling out of a campus bus, never happens again? Or preventing accidents involving toxic chemicals in science labs?

"I'm a paranoid individual by virtue of the job I do, so I see the downside of virtually everything," Van Nest admits. It's no wonder. She handles all property and liability exposures that the university and medical center are subject to, from the visitor who slips and falls and threatens a lawsuit, to making sure the Marine Lab research vessels are seaworthy, to alerting student groups that they need insurance coverage and waivers before taking a group of Durham schoolchildren to a swimming pool.

But Van Nest's anxieties about maintaining a safe campus environment are not hers alone. At a time when state and federal legislation dictates how business is conducted in nearly every sphere of higher education, universities across the country have become increasingly sensitive to adhering to the complexities of these new and evolving laws. From monitoring campus crime to grappling with legal challenges to affirmative action, from ensuring that classrooms are accessible to complying with Title IX, universities face a daunting set of challenges. Stanford University president (and lawyer) Gerhard Caspar was recently quoted as saying that as much as twelve-and-a-half cents of every Stanford tuition dollar goes toward compliance with state and federal regulation.

Furthermore, institutions find themselves operating in the prevailing climate of litigiousness that pervades contemporary society. From the frivolous to the consequential, lawsuits against universities have become as common as cameras at graduation. At Wake Forest University, a first-year law student sued his professor, claiming emotional distress because he was subjected to the time-honored tradition of standing in front of the class to recite cases (as in The Paper Chase). Johns Hopkins hired its own environmental lawyer to handle liability issues related to the university's disposal of hazardous wastes. Bowling Green State University was threatened with a lawsuit by the Thelonius Monk Corporation because a graduate student's Web page featured dozens of Monk tunes.

"Both the size of the university and its liability exposures have grown significantly since I've been here," says Van Nest. "When I started, the property insurance values were in the range of $300 million. Now, for insurance purposes, the property values are at $2.6 billion. Our fleet of vehicles has grown from about 325 to close to 600. So just the sheer volume has increased.

"At the same time, there's been a change in the attitude of the general population. The attitude today is one of entitlement. If something happens to an individual, the common thread is the presumption that it must be someone else's fault, someone else should pay. People have lost a sense of accountability and they look to place the blame someplace else. Usually they look to a place with deep pockets, and Duke is often viewed as being a deep pocket."

Despite the escalating risks associated with running such a large enterprise, Duke officials say such considerations come with the turf. With more than 11,000 undergraduate, graduate, and professional students enrolled during the academic year, hundreds of kids attending summer camps, a work force of nearly 18,500 throughout the university and medical center, and tens of thousands of visitors to campus every year, the population of the Duke community at any given moment resembles a bustling, self-contained town.

"When you think about it, we have our own housing, restaurants, police department, hospital, roads, cultural activities--you name it," says Senior Vice President for Public Affairs John Burness. "Essentially, the only direct service we get from the local municipalities is fire protection; virtually everything else we provide for ourselves. We're running a small city, so we're subject to all the suits you'd expect to see in any city setting. Even though we try to build in as many fail-safe mechanisms as we can, the law of averages tells you there are going to be errors and mistakes."

Even when a university has checked and double-checked its operations to ensure compliance, blunders occur. Sheldon Steinbach, general counsel for the American Council on Education, recalls a query from a university where a professor had imported thirty-eight frogs for research purposes. Turns out the frogs were on the Endangered Species List, and the violation cost the school $50,000 per frog. "The collateral costs of all these regulations are huge," says Steinbach.

Burness agrees. "Regulation in and of itself is not a bad thing," he says, "and in many cases it's a very good thing. But the accumulated burden of all the regulations, at a time when society is that much more litigious, complicates considerably the cost, both in dollars and in time and effort, of operating an institution. And that cost, in the long run, gets passed on to students in the increasing cost that is allocated to tuition."

University counsel offices are equipped to deal with the stream of threatened lawsuits that occur at every institution. In many instances, the threats are never followed through. Other cases are settled before going to court. For those that do wind up in litigation, it's often the curious or big-dollar cases that make good headlines. Duke has had a handful of such cases in recent years. A former patient and employee at the Rice Diet clinic sued the university claiming she was manipulated into a physical and emotional relationship with the former clinic director. A female place-kicker on the football squad sued when she was cut from the team. The family of a patient at Duke Medical Center filed a multimillion-dollar suit, claiming her autopsy was so botched that they couldn't hold an open-casket funeral.

Law school professor Tom Metzloff says that as private universities like Duke gain clout and visibility, it's natural that their operating practices and procedures come under greater scrutiny. "Universities want the public paying attention to what they're thinking and saying and this is the flip side of that coin. We've become important institutions in the United States and are seen as a way of accessing a better way of life for a lot of people. Universities are in the middle of many cross-currents--litigation is inevitable."

Metzloff, whose scholarship includes medical malpractice, civil procedure, and professional liability, says that as capricious as some of these cases may seem at the outset, the judicial process usually works quite well. "You are always going to have cases where you push the edges a little bit, where someone is battling the university. And most of us in the legal business think that ultimately it's a pretty healthy process. It may take ten years and there may be some real wringing of hands as we do it, but that's how we racially desegregated many institutions in the United States, through the court system. Most of us have confidence that it's not a horrible process. It isn't always pleasant for the people going through it, but I think there are a lot of examples in American culture where that's worked."

Across Duke, departmental officers and administrators are learning to spot potential problems before they happen. They attend continuing-education workshops, have conversations with colleagues at other institutions, and review existing policies on an ongoing basis. Such precautionary measures are part of the modern landscape, they say, but they try not to let the threat of litigation alter the way they conduct their jobs.

"I would say that almost the last part of our planning process has been to ask the question, what are our risks?" says Assistant Vice President for Student Affairs Sue Wasiolek '76, M.H.A. '78, LL.M. '93. "Other institutions would likely ask that question much earlier than we do. That's not to suggest that we are willing to take more risks, but we have tried not to let that be the guiding principle. Instead, we look at how a particular approach fits in with our overall mission."

In her nearly two decades with the administration, Wasiolek has been named in five lawsuits. One concerned the university's decision to dissolve a fraternity following allegations that a number of members had sex with a woman who was drunk to the point of passing out. One involved a sexual assault, two involved injuries to students, and one involved a civil-rights discrimination suit that centered on a student's disability. Dozens of other lawsuits have been threatened but not pursued.

A common ingredient in many student cases is alcohol, says Wasiolek, both at Duke and nationally. At the University of Texas several years ago, a student who had consumed about a dozen beers dove head-first into a fountain as part of his induction into the track team. In pursuing a settlement with the university, he claimed the institution should have done more to prevent the "hazing." Another student at the University of Idaho was paralyzed from the waist down after falling three stories. Her blood alcohol was 0.25, more than twice the legal limit. She and her family filed a $500,000 claim against the university.

In the wake of such high-profile, high-stakes cases, national fraternities are demanding that their individual chapters assume greater responsibility for alcohol regulation. The cost of insurance has become so prohibitive that many fraternities are abolishing alcohol altogether. An increasing number of universities are deciding to follow suit as well, often with unexpected results. Angered at what they see as undue control of their conduct, students at such places as Michigan State, the University of Connecticut, Washington State, Ohio University, and the University of Tennessee have launched full-scale riots for their "right to party."

The problem with banning alcohol, says Wasiolek, is that it creates an expectation that is nearly impossible to meet. "Once you establish a particular standard or rule, the expectation by the courts is that you will meet that standard. So if you say that you're going to start locking the doors or patrolling the campus, or declaring a particular area of campus 'dry,' then you have to make a reasonable effort--however that is defined by the courts--to make sure you uphold those standards. Some legal counsels would say don't even think about putting into place any policy you can't reasonably enforce, because having it on the books makes you liable."

Further complicating matters is that while students noisily stake their claim to certain freedoms--even ones that are illegal, such as underage drinking--they still expect the university to protect them from the consequences of such behavior. Like Wasiolek, Kathy Van Nest says that students need to be held accountable for their actions. Instead of making Duke a dry campus, she says "it's better to educate them and make them aware of the consequences of underage drinking and alcohol abuse. Then, if they make the decision to abuse alcohol, they will be held accountable."

This spring, the administration found itself on the defensive as students demanded the right to build bonfires celebrating men's varsity basketball team victories. In 1991 and 1992, when such celebrations degenerated into unruly and dangerous situations, dozens of injuries resulted from drunken assaults; students trying to run through, or being pushed into, the fire; and bottles being thrown into the crowds. More than a dozen students ended up in the emergency room of Duke Hospital with second- and third-degree burns. Hoping to avoid similar outcomes, a number of campus groups decided to sponsor a controlled, university-sanctioned bonfire that would have taken place if Duke had won the NCAA tournament. They even consulted with the company responsible for crowd control for the Macy's Thanksgiving Day parade and the New Year's Eve celebration in Times Square. But the students remained defiant. They proceeded to burn benches and build fires in hard-to-access quad spaces, scuffle with campus police who tried to instill order, and chant obscenities directed at President Nannerl O. Keohane.

Campus police chief Alana Ennis says she and others who had tried to plan an enjoyable party were disheartened by the ugly turn of events. "We planned for this for a long time. Our goal was not to have anyone hurt. And we publicized that. We talked to student groups and said we don't want to arrest people and we don't want to have to take you to the hospital. But there's an air of defiance and exuberant youth, and when you add alcohol, reason goes out the window. Everyone is happy for a few hours after the game and then things start to change. You can watch the crowd turn. At the bonfires, students were physically preventing officers and fire fighters from putting out the fires. And they weren't just starting fires; they were using accelerants. Several full gallons of gasoline were confiscated near where students were starting fires. It was really frightening and dangerous."

With the likelihood of another successful basketball team during the 1998-99 season, the bonfire issue is still smoldering. A task force that includes student representation will continue to meet to hash out some sort of compromise for future festivities. Stunned by the student rebelliousness, administrators seem resigned to the fact that bonfires will continue to be a tradition--albeit a dangerous one--at least for now.

In the meantime, the university continues to follow a course that allows for student independence while recognizing that the notion of in loco parentis is not yet outdated--at least in the minds of parents and students who find themselves in trouble. It's a delicate balancing act.

"This is a risky business," says Wasiolek. "I've always said that if we truly wanted to avoid litigation, we would close the doors of Duke University."

ong before students arrive on campus, they have gone through the arduous process of applying for admission. For public institutions, the escalating debate over affirmative action is having a direct impact on how an applicant pool is selected. Recent court rulings in Texas and California have forced public institutions to abandon their policies of setting aside a certain number of spaces for applicants from racial or ethnic groups. The Chronicle of Higher Education reported that the University of California-Berkeley experienced a 52 percent drop in the number of black and Hispanic students matriculating this fall. These decisions are in response to a growing body of litigation, usually brought about by whites charging reverse discrimination.

For private universities, the implications of these rulings remain unclear. Because all institutions are bound by anti-discrimination laws, even private institutions could find themselves in violation should a court decide that policies aimed at increasing a diverse student population are illegal. Clouding the waters even further is the fact that special consideration has traditionally been extended to other applicant pools such as athletes and alumni children. Broadly speaking, one could claim that this, too, constitutes a form of discrimination--against non-athletes and children of non-alumni.

Admissions director Christoph Guttentag says that regardless of where the dust settles on affirmative action and college admissions, Duke will continue to seek a heterogeneous student body. "The diversity of values, experiences, and backgrounds that different students bring to Duke makes the education more valuable for everyone, and we'll be able to continue to have our admissions practices reflect that principle, regardless of whether there are constraints in one particular area."

However, other constraints are creeping into the admissions process. The relationship among high school guidance counselors and teachers, parents and students, and universities has taken an interesting twist in recent years as the nature of confidentiality has been called into question. Instead of offering honest assessments of a student's chances at a particular institution, high school administrators are discovering that anything less than a glowing recommendation could prompt litigation. Lawrence University found itself in such a predicament when it decided to defer an admission offer to a student who had suffered a nervous breakdown. As reported in The New York Times, Lawrence wanted to see if the student and her grades would recover, and when they didn't, she was denied admission. The family filed a complaint with the Department of Education's civil rights office and, although Lawrence was eventually absolved of any wrongdoing, it was forced to alter its application form. Now, guidance counselors are no longer asked about "factors that might interfere with a student's performance, either from discipline, chronic illness, or emotional stability."

In the Times article, Joyce Smith, executive director of the National Association for College Admission Counseling, said that the trend is taking hold across the country. "Counselors are becoming afraid of telling the full truth. They'll write that Johnny took these courses and was a great student, but they won't tell you that Johnny burned down the gym. Whose job is it to tell admissions officers about that?"

Guttentag says such circumspection carries dangerous implications. "Let's say a counselor doesn't share something about a student that's important, something like a propensity toward violence. If a college admits the student and the student does something violent on campus, is the counselor then liable for not sharing that information? I would argue that we had every right to know it, because we're not just building an intellectual community here, we're building a residential one as well."

Another tricky area in the admissions process, says Guttentag, is the increasing number of students with learning disabilities. "A learning disability can often affect some element of a student's academic record. The dilemma for the parents is whether they want their child to mention it or not to mention it as a way of explaining the record, because they're worried about whether the college will hold that against the student--even though we're not allowed to do so under the Americans With Disabilities Act."

To take some of the guesswork out of the admissions process, Duke includes an explicit notice on the application form that students must sign. "I authorize the Admissions Office and appropriate faculty and staff of my secondary school(s) to discuss my candidacy," it reads. Acceptance letters include a caveat that the student is expected to continue a pattern of academic and personal behavior that's been demonstrated thus far. Duke has, in fact, withdrawn admissions offers to students who were expelled from their high schools between the time of acceptance and high school graduation.

"Applying to a college isn't an absolute right," says Guttentag. "We are allowed to put conditions on it, such as paying a set application fee, requiring submission of a transcript, and, in our case, having the applicant give us the authority to talk to someone from their high school. Some parents think the school's responsibility is only to present their child in a positive way, and anything that might detract from that is somehow an abrogation of their responsibilities. But there are lots of ambiguous situations, and where our understanding of an applicant is much improved by a conversation with a counselor or a teacher, we need to have the freedom to discuss a student's candidacy. So if a parent questions our desire to talk with a guidance counselor, we can point to our statement which describes the conditions of applying to Duke."

f changing admissions policies aren't yet making front-page education news, perhaps it's because they're being crowded out by reports of legal quagmires in college athletics. Issues related to Title IX of the 1972 Education Act, which prohibits gender discrimination in high school and college sports, are proliferating and take a variety of forms. Complicating matters are the ambiguities in, and changing interpretations of, the law. For example, an athletic scholarship can be awarded to one student (in a "head count" sport such as football) or divided among several varsity athletes. If a school divides, say, one swimming scholarship among four women competitors, how does that get counted? This spring, the Department of Education's office of civil rights stipulated that financial aid for women must be in direct proportion to the number of women athletes at a school, rather than within a range of a few percentage points.

At Duke, Title IX has asserted itself in both sweeping and specific ways. In 1997, a female place kicker filed a lawsuit claiming that the university violated Title IX because an offer to join the team was later retracted. The case is still pending, although university officials say they are confident any ruling will be in Duke's favor. More generally, the National Women's Law Center last summer named Duke among twenty-five schools that didn't allocate scholarship money equitably between male and female athletes.

Duke athletics director Joe Alleva says that is simply not the case. "The problem for years, quite frankly, has been the sport of football, which injects 100 or so males into a sport for which there is no comparable program for women. That's true at every school. But one of the things we've done, and that I'm really proud of, is that for all the sports that are similar in size for men and women--golf, tennis, track, soccer, lacrosse--all have comparable budgets, use comparable facilities, have comparable accommodations when they travel."

Last December, the board of trustees approved women's crew as a varsity sport, bringing the number of men's and women's varsity teams to thirteen each. (The crew team begins competing this fall.) At the same time, the board approved the addition of twenty-one more scholarships for women's sports over the next ten years, and a fourteenth women's varsity sport by 2000, when the total number of varsity female athletes will be 314 and the total number of male varsity athletes will be 415. Although the announcement came on the heels of the National Women's Law Center press conference, the timing was coincidental; the changes to the university's athletics programs had been in the works for months.

In the quest to be the best, some colleges have either purposely or unknowingly followed prohibited pathways in recruiting and retaining the nation's top high school athletes. Consequently, the National Collegiate Athletic Association (NCAA) continually revises and expands its rules and regulations. While Duke has maintained a sterling reputation for its athletics programs, the transgressions of other schools have affected how every institution conducts itself.

"You now have NCAA restrictions on how many times you can write or call a student," says Alleva. "What that has done is that it doesn't allow coaches to get to know students as well as they used to. And that is important for a school like Duke because we're selling relationships--between the coach and the player, between the university and the player--and obviously when you've got less time to do that, you can't build those relationships as well."

Compounding the problem, he says, is how savvy many young athletes have become in marketing their talents. "You've got high-school kids who are represented by agents, or buddies, or so-called advisers who don't always have that kid's best interests in mind. So it becomes harder and harder for recruiters to know who they should be talking to. Fortunately for us, we've been very lucky. Take Mike Krzyzewski; he's been able to recruit tremendous kids who really fit here. They represent the university well and reflect the kinds of values that we want here--social as well as academic."

Once Duke student-athletes are on campus, they receive continuing reminders about the expectations and pitfalls inherent in being a sought-after celebrity. The athletics staff coordinates academic and student-life support, and like all students, athletes receive information about the dangers of such temptations as alcohol and, more specifically to their recreational pursuits, topics like gambling and dealing with improper offers of cash or merchandise.

For University Counsel David Adcock, Duke's clean record in athletics is explained rather simply. "NCAA rules are written in a common-sense fashion that doesn't require judges and lawyers to decipher on a daily basis, assuming that administrators know the difference between right and wrong. And Duke has been blessed with an athletics administration and coaching staff that knows the difference between right and wrong. When you see an athletics program that is papered over with lawyers, you can presume that the program is skating very close to the edge of the pond. If we were to suddenly start getting calls about whether a car ride or meal was appropriate, that would be cause for concern, because it would indicate we were pushing at the edge of the rules. But we don't get those calls, because our people understand the policies and laws of the NCAA and abide by them. It's a matter of ingrained integrity."

In an editorial that appeared in The Chronicle of Higher Education in March, Terry W. Hartle, senior vice president for governmental relations and public affairs at the American Council on Education, noted that, overall, colleges and universities are doing a pretty good job at juggling the demands made on them. "Complex regulations, with extensive reporting requirements, guarantee problems with compliance," he wrote. "The more complex the requirements, the harder compliance will be, and the more likely that errors will occurÉ.The wonder is not that some colleges make mistakes; rather, it is that so many colleges comply successfully."

ompliance with existing laws affects the university's other day-to-day operations as well. There are stringent disposal laws regarding medical wastes and hazardous and toxic chemicals. University buses and trucks must meet standards set by the Clean Air Act and water fountains must meet standards set by the Safe Water Drinking Act. On the personnel side, any charges of harassment or discrimination must be documented and investigated. Those who serve on tenure review and departmental hiring committees scrupulously document the factual and procedural details of every case in the event their decisions are questioned. Under the Student Right to Know and Campus Security Act, university officials are required to report crime statistics to give prospective students and parents more information about incidents that occur on campus.

Given the intricacies of running a safe, secure, and law-abiding campus, it's no wonder that university officials occasionally bemoan the burden placed upon them. But with new legislation and regulations cropping up all the time, it's unlikely that the situation will get any less complicated.




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