Distancing Universities from Student Organizations: A Look at Public Institutions in Virginia

The relationship between college campuses and student organizations is complicated. Externally, the public often sees them as one entity, not distinguishing nuances of oversight, finances, or responsibility. From a legal standpoint, lines are often blurred as well. While all stakeholders may see the value of student organizations and activities in terms of the cocurricular experience, some institutions have chosen to distance themselves from student organizations as a way to avoid legal responsibility should something go awry. Knowing that risk is an inherent part of student organizations, the discourse has centered on how best to balance institutional support with potential liability. Drawing from the historical context in which student organizations exist and relevant case law from across the United States, universities in Virginia offer a microcosm of various approaches to this issue.

Background

In 1812 at the University of Oxford, Augustus Hare founded the Attic Society (a precursor to the Oxford Union) as the first student-organized debate society in modern higher education, and did so under the goal of free expression of ideas. This group stands as the original student organization, where over time students began to organize around more than debate. In 1895, Harvard students established the University Club, the first student organization in the United States to “promote comradeship among members of Harvard University,” according to college union historian Porter Butts in The College Union Idea. In response to the expansion and diversification of students in U.S. higher education, the student personnel movement began in the 1920s. The purpose of these administrators was to address the nonacademic needs of college students as more began to organize outside of the classroom.

As this history shows, students have chosen to organize for more than a century in higher education. However, it was not until Healy v. James (1972) where students were legally granted the precedent giving them the right to organize. In this case, the president of Central Connecticut State College denied recognition of a local chapter of Students for a Democratic Society (SDS). The president stated the group was antithetical to the institution’s commitment to academic freedom and feared it would be disruptive to the campus. This denial prohibited the organization from using campus space and from advertising on campus bulletin boards and the campus newspaper. Referencing the First Amendment’s Freedom of Association clause, the Supreme Court ruled that institutions cannot deny recognition to student organizations that agree to abide by the institution’s policies and cannot deny recognition based on apprehension about what a group may do. Therefore, the court ruled the reasons were insufficient to justify nonrecognition and that diversity in the content of campus organizations allowed for the “intellectual give and take of campus debate.” This final note is important as it relates to the historical foundation of student organizations in higher education as previously mentioned.

The courts have historically held that institutions can make reasonable rules and regulations for student organizations. According to William Kaplan and Barbara Lee’s definitive text, The Law of Higher Education, 5th Edition, institutions should follow three regulatory bases when considering denying recognition:

  • Institutions can require that all groups comply with reasonable rules concerning conduct.
  • Denial can happen when associational activities interrupt classes or significantly interfere with education of other students.
  • Organizational activity must follow all local, state, and federal laws.
  • Institutions should apply these rules equally across organizations, avoiding selective enforcement to specific groups.

The idea of equal enforcement is most often seen with regard to student organization benefits granted with recognition. In particular, student activity fee funding policies are often the leading contentious benefit. Although institutions are not required to supply funds to student organizations, once they choose to do so, it must be without regard to the content of the organization’s ideas being expressed (Gay and Lesbian Students Association v. Gohn, 1988; Rosenberger v. Rector and Visitors of the University of Virginia, 1995). In the seminal student activity fee case in the United States Board of Regents of University of Wisconsin System v. Southworth (2000), the court set the precedent that institutions do have the authority to impose and allocate student activity fees to student organizations for the “purpose of facilitating free and open exchange of ideas by, and among, its students,” and must do so through content-neutrality. The language used in the opinion continues to show the importance of free expression of ideas that student organizations bring to higher education institutions.

Recognition Policies

Most institutions’ policies regarding registered student organizations outline the process for recognition, expectations of the student organizations, and the benefits granted by the institution upon recognition. The traditional practice of many institutions has been to provide the same type of recognition to all student organizations; that is, they treat all student organizations equally, have the same expectations, and afford the same benefits upon recognition.

These policies provide legal protection to both the institution and the student organization by describing what will be acceptable. Some institutions outline behavior expectations that may result in discipline or loss of recognition. For instance, Virginia Commonwealth University explicitly states that student organizations will not “willfully disrupt or prevent the conduct of classes … act in violation of reasonable and lawful requests of university officials [nor] … falsify or forge an official university record or document.” These expectations directly correspond to the opinion stated in Healy v. James (1972).

One of the most common policies references how the organization can or cannot use the name of the institution in the organization’s name. Gay Rights Coalition v. Georgetown University (1987) firmly established that although institutions cannot deny recognition when the organization meets all reasonable rules and regulations, the recognition does not mean that the institution endorses the organization. To establish this firmly in policy, many institutions do not permit the university’s name to be at the front of the organization’s title. In these instances, organizations that choose to use the institution’s name would be required to do so as such: organization at institution. The purpose for this is to distance the institution from the organization.

Is this enough to distance an institution when other policies contradict and bring the relationship closer? Consider this scenario: James Madison University’s policies state that it does not accept responsibility for recognized student organizations that enter into contracts using non-university funds and without support from the university. However, student organizations using university funding must receive approval from appropriate university officials before entering into any contracts. It is feasible that this practice could be interpreted from a legal standpoint to make the university responsible and liable for the actions of the organization with respect to that specific contract and program.

Negligence

When considering policies about student organizations, institutions should consider how much distance they want to create between themselves and the organization from a professional, ethical, and legal standpoint. Numerous cases against student organizations have included the institution as an additional defendant and with mixed results that can help with navigating this complexity.

The most common question courts ask in determining duty and negligence on the part of the institution in these cases is whether a supervisory relationship exists. According to Kaplan and Lee, agency theory with respect to holding institutions liable for student organization behavior links to two standards: 1) Was the student organization acting as an agent of the institution (respondeat superior doctrine)? 2) Does the institution have a legal duty to supervise the student organization because the institution provided direct support to the organization’s operation, even if the organization was not acting as an agent of the institution?

In Marzart v. State (1981), the student newspaper published a libelous letter and the court found the organization responsible. However, citing freedom of the press and agency theory, since the institution had no authority to preapprove, censor, or control what the student newspaper published, there was no supervisory relationship. Therefore, the court found that the institution was
not responsible.

Not all instances are as clear as a freedom of the press situation. In Mynhardt v. Elon University (2012), a student was paralyzed after a fight at an off-campus party hosted by a student organization. The court ruled in favor of the institution because the student voluntarily chose to engage in dangerous activities and did so at an off-campus premises. Since the university did not supervise the premises, there was no relationship to this organization activity.

There are many organizational activities that are supervised by university officials, and this is especially concerning when the supervision is outlined by university policy. When institutions require organizations to maintain a university advisor who is responsible for ensuring the organization follows policies and procedures, the institution and the organization’s advisors can become liable for the actions of the student organization. This was the situation in Bishop v. Texas A&M (2005), in which a director of a student organization-sponsored play chose to use a real knife as a prop. During a rehearsal, a student was stabbed by the knife and sued the institution, claiming it was the advisor’s duty to prevent these types of decisions. The court stated that since the university required a faculty advisor, the institution and the advisor could be held liable for the injury. However, in this particular instance, the court found that since the director was an independent contractor, the institution was not liable for the director’s decisions.

Yost v. Wabash College (2014) provides another example where even though the institution does provide an advisor, this may not by itself create a supervisory relationship. In this case, a student was injured during a fraternity pledge event. The court found that since the institution did not attempt to supervise the event there was no supervisory relationship. The institution prevailed in this case, but other courts have ruled against the institution in similar situations.

The most significant of those was Furek v. University of Delaware (1991). In this case, a student was hazed and burned while pledging a fraternity. The court did hold the university responsible because the fraternity house was located on campus, the university had policies against hazing, and staff had responsibilities to supervise the fraternity and sorority life activities.

Case law has made it clear that if a supervisory relationship exists, then institutions may become liable for student organization activities. Some institution policies and practices make it clear when a supervisory relationship exists, such as requiring university advisors. Since the courts have had mixed rulings, it is important for institutions to decide proactively how they will manage risk with respect to student organizations on their campus.

A risk management plan can minimize litigation for institutions. Kaplan and Lee outlined four primary methods of risk management exist, each with different levels of protection.

  • Risk avoidance – Institutions eliminate the dangerous conditions and activities. Since student organizations have the right to organize and typically plan their own activities, this method is often not reasonable.
  • Risk control – This reduces the frequency or level of risky conditions and activities. Institutions can accomplish this by offering trained professional staff to advise organizations as they plan their events, either through direct advisors or through event services offices.
  • Shifting the burdens of risk and liability away from the institution – This can be done through insurance, indemnification practices (transferring liability to other parties such as an independent contractor), releases or waivers at organization events, and shifting the risk to the organization itself.
  • Accept the risk completely – This is typically only appropriate when other methods are too costly or the risks are considerably low.

Shifting the Risk in Virginia

In October 1982, Sigma Chi at the University of Virginia (UVA) took a road trip to a neighboring institution. Sixty-three brothers and potential members piled into the back of a U-Haul truck and while driving, the truck tipped and collided with another vehicle. Two students were killed and several others were severely injured, including Thomas Stumm, who was in a coma for 10 weeks. The Stumm family filed suit against the university, the local Sigma Chi chapter, the driver, and U-Haul. In 1985, the court found that UVA had no responsibility in the accident. However, the student affairs vice president decided that the institution needed to reconsider the university’s relationship to all student organizations in respect to becoming aware of its legal liabilities. At the time, the assistant dean of students was quoted in The Cavalier Daily student newspaper as saying, “The university will not simply return to old policies just because the suit was decided in its favor.”

As a result, the University of Virginia changed its student organization recognition policies in an attempt to remove all supervisory relationships between itself and the organizations, and to transfer the risk directly to the organizations. UVA created the Contracted Independent Organization (CIO) system to create this distance. According to the university website, “The CIO exists and operates independently of the University. The CIO is not an agent, servant or employee of the University, but rather is an independent contractor which manages its own affairs.”

Virginia Tech subsequently followed this policy with their own in 1991 and went a step further to create a three-tiered system. In developing these new policies, one of the key points was to remove the “review process” for constitutions from the recognition process because the legal understanding at the time was that if the university approved governing documents of an organization, then the actions of the organization could possibly be seen as university supervision in liability cases. Additionally, the expansion of many new organizations made it challenging to maintain trained university advisors for every organization; Virginia Tech currently has approximately 700 student organizations.

This tiered system was different from UVA’s in that, based on the level of relationship Virginia Tech chose to maintain, the university grants the organization different expectations and benefits of protection, treating each tier differently from the others, but all organizations equally situated within that level. The farthest removed tier is for Registered Student Organizations (RSO), which meet the basic requirements of Healy v. James (1972) to recognize the organization. This tier comprises the majority of Virginia Tech organizations and by policy “has no direct relationship to the university but upon completion of registration and documents is entitled to certain privileges.” The university will not enter into any contractual agreements on behalf of an RSO and the organizations are not permitted to represent themselves as agents of the university. The second tier are University Chartered Student Organizations. These organizations are directly “affiliated with” Virginia Tech and are provided university advisors. Additionally, the university signs all contractual agreements on behalf of the organization, choosing to accept responsibility for the organization’s actions. The final tier, University Student Life Programs, are university governed student organizations in which university administrators make all decisions for the group and the institution accepts all responsibility for the organization’s actions.

This tiered system was tested in court in 1996 when the Collegiate Times, the student newspaper that was run by the RSO-recognized Student Media Board, was sued by a VT football player. The suit originally named the university, but was quickly dropped because of the recognition status outlined by the institution’s policies.

Virginia Tech grants each tier the same level of benefits with respect to funding, access to facilities, and ability to advertise on campus. The College of William and Mary followed with a three-tiered system, in which the university accepts responsibility for “sponsored” organizations and distances itself from two separate levels of “affiliated” organizations. William and Mary chose also to differentiate the benefits each tier receives, including use of the college name and access to specific facilities. Within the last seven years, Old Dominion University, Virginia Commonwealth University, and James Madison have each considered moving to similar systems that distance their institutions from liability of student organizations.

Legal and Professional Implications

With legal rights to organize and educational benefits of having organizations to provide diversity in free expression of ideas on college campuses, student organizations will continue to be a priority policy consideration for institutions. Institutions should regularly review their recognition practices and contemporary case law to decide the best practices to protect themselves from liability. As seen in Virginia, there is a split philosophy among public institutions regarding the level of supervisory relationships each campus chooses to establish, both distancing and accepting the risk.

Regardless of what rules and regulations the institution establishes, the courts can always choose to see things differently. In the unpublished case of Pawlowski v. Delta Sigma Phi (2010), the court found the university not responsible for a student death after an off-campus party, even though the university had rules governing off-campus parties, which could have created a supervisory relationship. Based on the court opinion, Peter Lake wrote in his book The Rights and Responsibilities of the Modern University: “Too much enforcement in colleges will not teach, but police students—destroying the educational mission we are trying to protect.”

The judge’s opinion from this case encourages colleges to have and enforce policies for its students, but also create an educational environment that “keeps colleges accountable without holding them liable,” Lake explained. As one final note, institutions should consider and understand their legal liabilities with student organizations. However, institutions also have professional and ethical obligations to support and advise student organizations for the greater benefit of the students’ free expression of ideas.

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