Students Abroad: out of Sight, out of Mind and Beyond the University’S Duty of Care in English Law?

STETSON UNIVERSITY HE LAW CONFERENCE, February 2003, Florida

STUDENTS ABROAD: OUT OF SIGHT, OUT OF MIND AND BEYOND THE UNIVERSITY’S DUTY OF CARE IN ENGLISH LAW?

David Palfreyman, MA MBA LLB, Bursar and Fellow, New College, Oxford; Director, Oxford Centre for Higher Education Policy Studies ( www.oxcheps.new.ox.ac.uk ); Co-editor, Higher Education Law (Jordans, 2002); and Co-editor of the journal Education and the Law.

Adam Smith, Wealth of Nations (1776, Book V), on the young English Gentleman going on ‘the Grand Tour’ of Europe as the eighteenth-century version of the modern ‘gap-year’ or of ‘study-abroad’: ‘…he commonly returns home more conceited, more unprincipled, more dissipated, and more incapable of any serious application either to study or to business, then he could well have become in so short a time, had he lived at home… every useful habit, which the earlier parts of his education might have had some tendency to form in him, instead of being riveted and confirmed, is almost necessarily either weakened or effaced.’

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1 Background

1. It is clear that there is an increasing duty of care owed by schools to their pupils (and the younger they are, the greater the care required; and especially in relation to school trips). In Palfreyman, ‘Suffer little children…’ (Education and the Law 13 (3) 2001) it is noted that expectations have now moved on somewhat from the rather dismissively robust attitude of the English judiciary in: • Hudson v Governors of Rotherham Grammar School and Selby Johnson [1937] LCT 303, concerning a boy run over by a cricket-pitch roller. The judge duly guided the jury: ‘If the boys were kept in cotton wool, some of them would choke themselves with it. They would manage to have accidents: we always did, members of the jury – we did not always have actions at law afterwards…Has any reasonable parent yet succeeded in exercising such care as to prevent a boy getting into mischief and – if he did – what sort of boys should we produce’. One speculates as to whether the judge might have felt differently if the quintessentially English game of cricket had not been involved, or if a girl spectator had been the roller’s victim! • Jeffrey v London County Council (1954) 52 LGR 521, where the judicial opinion was that ‘it is better that a boy break his neck than allow other people to break his spirit’ (here in terms of supervision at the end of the school day not being needed to prevent a five-year old boy climbing on to a glass roof, falling through it and receiving fatal injuries; such ‘meticulous supervision’ might otherwise inhibit ‘sturdy independence’!).

2. Similarly, there is no dispute that a clear owner-occupier duty of care is owed by the Higher Education Institution (‘HEI’ hereafter) to students occupying its premises - providing, of course, they are behaving in a responsible fashion: Ratcliffe v McConnell [1999] 1 WLR 523, Court of Appeal (‘CA’ hereafter) - and especially when they are working in its laboratories or when they are despatched on official field trips (Tuttle v Edinburgh University 1984 SLT 172). There is, however, no equivalent statutory duty upon the English HEI as

2 is imposed on its US counterpart by the Clery Act concerning the provision of data on campus crime and crime in the local area.

3. A duty of care may also be inadvertently assumed: Watson v British Boxing Board of Control Ltd and Another [2001] 2 WLR 1256, CA – once the BBBC requires ringside medical care, it needs also to ensure that the care is adequately resourced to provide appropriate early/fast care for serious brain injuries; Barrett v Ministry of Defence [1995] 1 WLR 1217, CA – the Army personnel in taking on the care of a drunken young soldier need to do the job properly by ensuring he is put in ‘the recovery position’; Jebson v Ministry of Defence [2000] 1 WLR 2055, CA – the Army in providing transport for young soldiers to go drinking in the nearby town needs to supervise them on the way back lest, predictably, one clambers on to the roof of the lorry and falls off. From the US, perhaps similarly there is ‘Coghlan v University of Idaho’ arising from the unsuccessful Coghlan v Beta Theta Pi et al, 1999)?

4. Otherwise, there is no general duty of care to supervise students as adults indulging in their private ‘unincorporated club’ (Students’ Union) social/recreational and sporting activities, nor when roaming the campus at night (see the robust common-sense of the Court of Appeal in Ratcliffe concerning a student seriously injured diving into the HEI outdoor pool: ‘an act of incredible folly to dive into the shallow end in the small hours of the morning…he knew what he was doing…the plaintiff was aware of the risk and willingly accepted it…the defendants were under no duty towards him…a number of high spirited young men will take serious risks with their own safety…if the risk materialises, they cannot blame others for their rashness…’).

5. Unless, of course, the HEI is in fact in charge of the activity, when, say, teaching drama (McDonald v University of West Virginia Board of Trustees, 1994) or sports studies to the students, or (less likely, at least in a UK context) the HEI’s sports centre staff are themselves the organisers/coaches/referees (Smolden v Whitworth [1997] ELR 249, CA – concerning the competence of the professional referee of a rugby match, especially one between teams of

3 under-19 inexperienced players when special ‘Laws of the Game’ apply to protect against a perceived greater risk of injury in ‘scrums’; also, from the US, Kleinknecht v Gettysburg College (1993), Sicard v University of Dayton (1995) and Regents of the University of California v Roettgen (1996) – all in contrast to Beach cited below.

6. So far, all this is similar to US Law, as illustrated by the citing above of US cases (Kaplin & Lee, The Law of Higher Education, 1995 & 2000; Hoye, Education Law Reporter, December 2000): there is no broad duty of care to supervise students as adults in their social/recreational and sporting activities on or off campus (note the US Court’s robust common-sense in, say: Bradshaw v Rawlings, 1980; Beach v University of Utah, 1986; Swanson v Wabash College, 1987; Pitre v Louisiana Tech University, 1996; Rothbard v Colgate University, 1997; Regan v State, 1997; Gilbert v St John’s University, 1998; Apfel v Huddleston, 1999; and Lloyd v Alphi Phi Alpha Fraternity and Cornell University, 1999). As Hoye quotes from Bradshaw: ‘the modern American college is not an insurer of the safety of its students’; and then from Beach he quotes the Court as declaring that it would be ‘unrealistic to impose upon an institution of higher education the additional role of custodian over its adult students’, given that to do so ‘would require the institution to babysit each student’ as clearly ‘a task beyond the resources of any school’. It is, of course, a very different matter if the HEI can clearly be said to have been firmly ‘on notice’ of, say, bizarre and dangerous fraternity hazing rituals (reminiscent for foreign observers of eighteenth-century duelling scars at Germany’s Heidelberg University or of the ferocious bullying in nineteenth- century English ‘public’ schools as featured in Tom Brown’s Schooldays!): Morrison v Kappa Alpha Psi Fraternity, 1999; and Knoll v Board of Regents of the University of Nebraska, 1999.

7. Bickel & Lake (The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life?, 1999) argue cogently that the tort liability of HEIs is now increasing as ‘the duty era’ replaces ‘the transitional bystander university’, itself having succeeded ‘the era of in loco parentis and legal insularity’. They query whether the courts will continue to apply the ‘no

4 duty’ line as in, say, Bradshaw; and especially in relation to the (mis)use of alcohol on a college organised field-trip as in, say, Beach. Instead, the courts may identify a duty, leaving the HEI to argue a ‘reasonable precautions and hence no liability’ defence for example, Mintz v State of New York (1975), Mullins v Pine Manor College (1983), Banks v Trustees of the University of Pennsylvania (1995), Pitre (as noted above), Weller v College of the Senecas (1995 – note the similarity with Ratcliffe in para. 4 above as ‘a tough case with a tough result and a tough message’, B & L, p p123); and most notably in Furek v The University of Delaware (1991), as followed by Crow v California (1990), Tanja H. v Regents of the University of California (1991), Nero v Kansas State University (1993), and Johnson v State of Washington (1995). Thus they put forward the concept/model of ‘the facilitator university’ as a balance between and sharing of student/HEI rights/responsibilities concerning student safety on the campus: here the HEI eschews both autocracy (the control – freak ‘fascist-like’ HEI) and abdication (the ‘helpless’ HEI); for the HEI it is ‘creative and practical not stifling and reactive’ and is ‘empowerment’ in terms of ‘modern risk management’. In terms of a comparison with English Law, Bickel & Lake’s ‘the facilitator university’ would be in line as far as the English Courts recognise a duty of care in relation to the HEI providing teaching or the HEI providing the organisation of recreation/sports, but English Law does not (yet) impose a duty of care in relation to the control of student drinking (other than if a duty of care is inadvertently assumed, as noted in para. 3 above). As it happens, and as already noted in para. 6 above, the possible social and legal pressures for the HEI to be more interventionist in relation to student behaviour are less acute in the UK than, as Bickel & Lake would see it, in the USA, given that there is not the equivalent in the UK of the Greek fraternity arrangements for providing student accommodation, nor within student communities the ‘hazing’ rituals associated with such fraternity arrangements (even if, as with almost all young people, there is heavy drinking). Certainly, in the UK there has, fortunately, not been the kind of student/campus violence and student alcohol abuse incidents which trigger the US cases cited by Bickel & Lake, and hence fuel their argument for ‘the facilitator university’ to be more proactive in attempting to control fraternity activities and the student use of alcohol. (It

5 should also be remembered that the legal age for the consumption of alcohol in the UK is 18, and hence there is not the issue of student ‘under-age’ drinking.)

8. But now, in theory, the UK courts will, also, consider tort claims under the concept of educational malpractice/academic negligence/failure to teach (Phelps v Hillingdon London Borough Council [2000] 3 WLR 776, House of Lords – concerning a school rather than directly a HEI; and the House did stress that, in practice, there would be major problems for most plaintiffs in proving poor teaching and then showing causation). In contrast, the judicial hostility shown in the US courts towards educational malpractice claims (Ross v Creighton, 1990) is flourishing (Andre v Pace University, 1996). Note also the judicial deference, in both the UK and the US, to academic judgement/expertise where the student challenges the HEI under the student: HEI contract to educate (Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, CA; see also Palfreyman, ‘The HEI-student legal relationship…’ in Education and the Law 11 (1) 1999). Incidentally, US HE lawyers may find it interesting to note that there is, however, no equivalent in the UK of US ‘State immunity’ (eg. Emberg v University of Maryland College Asian Division (1998), as a study-abroad case) for HEIs, hospitals, the police, the fire service, the military (what was once known in English Law as Crown immunity); still less do UK HEIs benefit from the quaint concept of ‘charitable immunity’ from tort liability, as in Hamburger v Cornell University (1925), and even recently in Bloom v Seton Hall University (1998).

9. The HEI student or even school pupil aggrieved about allegedly poor teaching, however, seems, despite Phelps, more likely to succeed with a claim in contract rather than in tort, although, so far, few claims have reached the court. Out-of-court settlements have been reported in the press in relation to two ‘mature student’ former undergraduates forcing ‘reliance damages’ compensation from the University of Greenwich and the University of Wolverhampton, each, interestingly, for allegedly inadequate and under- resourced teaching on Law degree courses (the two seem to have learnt at least some useful contract/consumer law concerning misrepresentation!). Similarly,

6 a girl pupil/her parents settled out-of-court over allegedly poor sixth-form teaching at the expensive Hurstpierpoint private school, having argued that her chance of eventually becoming a well-paid solicitor in a posh London legal firm would be damaged by her having only a weak grade in Latin as one of her three ‘A’-level (‘high school graduation’) subjects; the settlement is rumoured to be a ‘reliance damages’ refund of one-third of the tuition fees.

As specifically for study-abroad

10. There really is no substantial JYA activity in terms of UK undergraduates spending time at foreign HEIs in the way that each academic year adventurous young Americans invade Oxford, Cambridge, Edinburgh and London;

• other than in terms of UK HEI modern languages students spending a ‘year abroad’ as a degree course requirement (see ‘10’ below), while the medical students go off on 12 week ‘clinical electives’ and there is also some EU inter-country exchanging of students;

• even if UK HEIs do indeed welcome (at a price!) US JYAs (see ‘11’ below).

(As an aside, there are still a few Oxford colleges, including New College, which continue the tradition of using a charming, quaint, isolated (and, in our case, until this year utterly unsafe candle-lit) alpine chalet for Brideshead Revisited Summer ‘reading parties’!)

11. US HEIs acknowledge a clear duty of care for their students going off abroad as JYAs where the HEI can be said to own, operate and control the programme in the foreign HEI. This duty of care fades as the ‘home’ HEI’s influence over the foreign HEI’s programme declines to the level of merely recognising that students might opt to study at one or any of various foreign HEIs which, independently of the ‘home’ HEI, accept US JYAs (referred to by Hoye & Rhodes, College and University Law 27 (1) 2000, as ‘permissive

7 programmes’). UK HEIs, also, do not (as yet) readily acknowledge any general duty of care in the case of these ‘permissive programmes’: ‘Go and spend a year-abroad as part of your modern languages degree course, steeped in the French language and culture, whether working in the Nice McDonalds, teaching English at a Biarritz school or studying Descartes at the Sorbonne; it’s up to you.’ See you next year!’

12. Some commentators in the UK do not, however, see a distinction in regard to ‘permissive programmes’ and hence view the HEI as having a more demanding broad duty of care for any and all study-abroad activity, and consequently needing to tackle risk management in order to reduce potential liability. Birtwistle (Education Law Journal 2 (2) 2001) sees a wide range of ‘potential risks’ for the HEI, with ‘the possibility of action under both contract and negligence’ as being ‘potentially great’. Similarly, Wallace & Chan (Perspectives 3 (4) 1999) view ‘informed consent’ on the part of the departing student as a key issue in the HEI’s risk management of study-abroad, with, for example, the HEI needing ‘a comprehensive safety profile’ for each programme/exchange and also the HEI stressing to students the importance of them informing their parents/guardians/families about where they are going and what they are doing (does the Law really expect the HEI to have a duty of care to ensure that students talk to their parents?).

13. In addition, there is the recently launched ARMED Project on risk management for UK HEIs ( www.armed.ilrt.bris.ac.uk), which has a Unit on ‘Student placements and overseas students’ and sees the HEI’s duty as largely imposed by Health & Safety legislation rather than necessarily by the common law: the ARMED ‘best practice’ guidance talks of ‘appropriate procedures and policies…to identify, assess and manage the risk of liability’ in terms of avoiding not only ‘unnecessary costs and claims by students’ but also protecting ‘the reputation of the institution in the eyes of the students and prospective students’. Such concerns and the related ‘good practice’ recommendations are in line with those expressed for US HEIs in, say, Hoye & Rhodes (2000): ‘a comprehensive approach to preventive law and risk management’ in relation to ‘the many and varied risks associated with the

8 operation of international study abroad programs’ is needed to reduce the HEI’s ‘potential liability exposure’.

14. Thus, there are a number of external factors currently stimulating UK HEIs to review their study-abroad arrangements: there is the increasing emphasis within the UK ‘not-for-profit’ sector on risk assessment/risk management, pushed by firmer and more detailed Government regulation via, for example, the Trustee Act 2000 and related SORPs (Statement of Recommended [Accounting] Practice); such growing Government intervention and demands for ‘accountability’ is also seen in the scrutiny of HE teaching standards via the QAA (Quality Assessment Agency), which asks awkward questions about what happens educationally during the period of study-abroad so that out of sight abroad does not imply out of mind pedagogically; and, finally, the UK’s recent copying of the US disability discrimination legislation means HEIs have to begin to focus on whether their study-abroad degree requirements are perhaps discriminatory amongst students.

15. A potential internal factor which might have driven UK HEIs to review their study-abroad arrangements would have been any sudden reluctance, post-‘9/11’, on the part of their students to go off abroad: no such reluctance has been seen. Similarly, as discussed in 11b) below, there has been no indication of possible future problems from any fall-off in the number of US JYAs who came to the UK in 2001/02 or are coming now in 2002/03, or indeed are currently signing-up for 2003/04. Any such reduction in numbers, and hence ‘bottom line’ profitability on JYA activity, may well have prompted UK HEIs to issue (supposedly) reassuring messages about campus security, etc., in an attempt to sustain pre-‘9/11’ levels of US visiting students.

16. We await clarification soon from ‘Erin McLean v St Andrew’s University’ on the extent of the HEI’s duty of care in relation to study-abroad. Here, an American national and former student at St Andrew’s University (Scotland) alleges that the University was negligent in sending her to Odessa during her modern languages term-abroad where one evening she was raped when

9 walking along the beach (her boyfriend, also a St Andrew’s student, was beaten up), and when the University should, supposedly, have warned her of the high rate of rape/crime in Odessa (echoes of the US Clery Act?). The University argues that its duty of care in the context of arranging a placement for her (it, for example, provided her residential accommodation in Odessa and hence, arguably, here we have rather more than a ‘permissive programme’ – see 10 a & b above) does not extend to monitoring the student’s social life once there (just as it would not back in St Andrew’s).

17. With reference to the St Andrew’s case, the US case-law does not look too promising for the HEI (assuming, of course, the Scots court is likely to be concerned with cases from a former colony!). In Gross v Family Services Agency and Nova Southeastern University (1998) and Nova Southeastern University v Gross (2000) the Court was influenced by Shurben v Dollar Rent- A-Car (1996) and found the HEI to have a special duty to warn of ‘foreseeable criminal conduct’ when offering off-campus placements to social work students : ‘Nova had a duty to exercise reasonable care in assigning [Ms Gross] to an internship site, including the duty to warn her of foreseeable and unreasonable risks of injury… [given that there exists here a special relationship between] an adult who pays a fee for services and the provider of those services’ (as discussed in Kaplin & Lee, 2000 Supplement, pp 64-66). That said, at least the US HEI is not also held liable for deficient local medical services when despatching JYAs to ‘third world’ Europe (McNeil v Wagner College, 1998)!

18. This case-study is extracted from a UK daily newspaper (Guardian, 5/11/02), ‘The pain in Spain’… I recently completed a degree course in Spanish, which included a compulsory year abroad in Spain, and I decided to go to Barcelona. We were actively discouraged from spending this year in the company of fellow course mates, but urged to travel alone, and therefore integrate ourselves fully into the society of the host country.

10 On registration at the University of Barcelona, I found the staff unhelpful and the course information unintelligible. I was told that, as study at the university was not compulsory, they would not expect to see me for the rest of the year. They were equally unhelpful regarding accommodation, having no screening system to ensure that the landlords advertising within the university were reputable or trustworthy. I would have been in considerable difficulty had I not had a friend to stay with for the six weeks it took to find a flat. I had to pay a year’s rent in advance from my personal savings in order to secure the tenancy.

I soon found myself isolated and eventually came home. I found new tenants to take over the flat, and was promised a return of the advanced rent, but received nothing. During the time I spent in Barcelona, no attempt was made by my home university to contact me in order to assess my progress, or safety for that matter. I felt very vulnerable while living alone in Barcelona, witnessing numerous muggings and being forced, out of desperation, to visit dangerous areas of the city in order to view squalid and extortionate accommodation.

I have since heard similar stories from or about students on their year in Europe. These students have also returned early due to stress and lack of pastoral support, some of them in serious ill health. My home university invites its European exchange students to visit for a weekend in the summer prior to their stay, when they hire people to help them find accommodation, and acquaint them with the city.

I didn’t complain to my home uni, as I was worried they wouldn’t allow me to continue with my degree. As it turned out, I’ve managed to graduate with honours without the year abroad. Name withheld (N.B. emphasis added for this Paper)

19. This case-study begs the question not only of just how extensive might be the HEI’s duty of care in legal terms (whatever it may feel it is in pastoral care terms), but also whether an unhappy (or even distressed) student returning early from an allegedly inadequately (on the part of the HEI) planned and

11 supported year-abroad can be said to have been caused any recognisable damage in tort: there may be pure economic loss if here we assume a Hedley- Byrne style liability for the HEI, and possibly also with damages for hassle/anxiety; but clearly there is no physical injury nor (unless the student is especially sensitive!) any psychiatric damage. In contract, under English Law, the student is unable to recover damages for distress/anxiety, even if he might try to recover ‘reliance damages’ for the lost rent and travel costs incurred.

So, what of the impact of ‘9/11’ on US JYAs studying at the UK HEIs?

20. The JYAs themselves may be more cautious in 2002/03 following ‘9/11’, but in terms of the HEI’s care of those JYAs nothing has really changed for 2002/03 over 2001/02… even if, doubtless, some US HEI in-house lawyers will have demanded risk assessments leading to a few UK HEI’s cynically drawing up hopelessly impractical student monitoring procedures and emergency evacuation plans! Nor would I wish to pretend that UK HEIs (and still less, I suspect, those in other parts of Europe to which bold US JYAs are attracted) have ever done very much by way of rigorous risk assessments, detailed daily monitoring and elaborate emergency planning, even in the days of the IRA being active in mainland UK. Moreover, given the absence of such scenario planning, it is difficult to see just what could easily and quickly change in the event of a US/UK/UN-Iraq war (other than for the US HEIs simply to recall their students on the not necessarily rational view that they are less at risk of terrorist attack in, say, Ohio, Philadelphia or Athens than in Oxford, Prague or the original Athens).

21. Certainly, the adventurous youngsters have themselves since ‘9/11’ shown no reluctance to risk international travel: for example, the various JYA programmes feeding c250 ‘Visiting/Associate Students’ to the Oxford colleges each semester lost only two or three bookings for January ’02 and for this last October; and similarly the numbers for the Duke summer-school at New College were up for 2002 on 2001. Indeed, also at New College we this year initiated a new direct link JYA programme with Notre Dame without the (notoriously difficult!) Notre Dame in-house lawyers expecting us to attach

12 electronic tags to their students and require them to be safely locked up behind the College gates by 10pm each evening!

22. In short, except perhaps in the immediate aftermath of the 1980s Birmingham and Manchester IRA bombings, UK HEIs have, you may be shocked to hear, had in place no special security measures, either for the own UK students or for their foreign students, other than to rely on the general level of awareness within the UK population of the bomb risk at that time (look out for unattended luggage/parcels at airports, etc, and no litter-bins in parts of central London). It has been very much the gentleman-amateur approach of the Dad’s Army spoof on the Home-Guard ‘war-time spirit’ (we have not gone in for the sophisticated ‘homeland defence awareness-training’ that seems to have recently developed in the US).

In conclusion

23. Until the St Andrew’s case is decided, there is legal uncertainty on just how extensive is the UK HEI’s duty of care to its students during their ‘year abroad’. Might the HEI end up with a greater duty of care to warn a student about where not to live/socialise when away in Paris for a compulsory year studying French or off on an optional (but ‘strongly recommended’) clinical elective in a San Francisco or Borneo hospital, while (in the absence of the UK equivalent of Clery legislation) having no such duty to warn of the unseemly parts of London, Oxford or wherever the HEI is located? But, whatever the level of that duty, there again appears to be a negligible impact of ‘9/11’ in terms of the UK HEI showing extra concern over its students while they are abroad or over its ‘home’ and its visiting foreign students still on its campus, and, hence instituting more elaborate safety procedures aimed at fulfilling whatever is the duty of care in the relation to (the threat of) a terrorist attack. That said, perhaps, however, there will now be a little more anxiety post-the Moscow theatre incident in October…

24. And, back to the post-9/11 theme of this Conference, perhaps the bigger and more immediate issue is, in fact, that of freedom of speech on the UK HEI

13 campus in the context of increasingly polarised Western-Islam perspectives within the student community, and indeed the theoretical possibility of the internment of certain foreign students in the event of a second Iraq war… (That topic, I believe, is to be addressed elsewhere in this Conference.)

********************************************************************* (The UK HEI cases referred to above, and some of the non-HE cases, can be seen at the OxCHEPS web-site under ‘HE Law Case-book’; the same site also provides an on-line updating service for the Higher Education Law text. This Paper can be down-loaded from the OxCHEPS site at the ‘Law Update’ Page (see the ‘New Material’ section).

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