WENDY S. WHITESR. VICE PRESIDENT AND GENERAL COUNSEL

UNIVERSITY OF PENNSYLVANIA

Social, Religious, and Athletic Student Organizations on Campus: What You Need to Know about Managing Risks

and Liability

Introduction

1. Funding of religious groups

2. Finding a place for controversial groups

3. Responsibility for the safety of students in social, athletic and other organized groups

I. Funding of Student Religious Groups

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

In this case the U.S. Supreme Court held that the University of Virginia impermissibly discriminated against a religious student group when it refused to provide student fees in support of the group’s Christian newsletter.

Litigation since Rosenberger

The lessons of Rosenberger have been tested in a number of cases in recent years:

University of Wisconsin-Madison – OK to withhold funding

Boise State University – Funding permitted by agreement

Wayne State University – Funding permitted by agreement

University of Montana School of Law – Funding denial upheld

II. Finding a Place for Controversial Groups

Number of student groups that have controversial agendas, e.g.:

Pro-life Anti-gay Gun advocates

Issue: “freedom of association” v. “non-discrimination”

Healy v. James

Healy v. James, 408 U.S. (1972)

In this case the U.S. Supreme court struck down the decision of a public college president to deny recognition to a chapter of the Students for a Democratic Society because SDS had a philosophy of violence, contrary to the college declaration of student rights.

Cases Post Healy v. James

Roberts v. United States Jaycees, 104 S.Ct.3244 (1984) Struck down exclusion of women

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) – Upheld prohibition of gay men as Scout Leaders

Christian Legal Soc’y v. Walker, 453 F.3d 853, 862 (7th Cir. 2006) Held that University’s interest in preventing

discrimination against gays was outweighed by CIS freedom of association rights

Truth v. Kent School District

Truth v. Kent Sch. Dist., 542 F.3d 634 (9th Cir. 2008):

Upheld non-discrimination policy

There is no question that acts of expressive association are protected forms of speech under the First Amendment... When the state restricts access to a limited public forum in a way that interferes with a group’s speech or expressive association, however, we apply the lesser standard of scrutiny, even if the same burden on a group’s right outside a limited public forum would be subject to strict scrutiny.

U.S. Supreme Courts Speaks

The U.S. Supreme Court has now spoken on this issue in Christian Legal Society v. Martinez, S.Ct. No. 08-1371:

June 28, 2010: In a 5-4 Ruling, the Court upheld Hastings College of Law’s policy requiring all student groups to allow all students to become voting members and leaders of the group – even when the group had different religious beliefs that were anti-gay. The ruling is known as the “all comers” policy. The Court required however that Hastings demonstrate that its policy was applied even handedly.

III. Responsibility for the Safety of Students in Student Group Activities

What is the duty of care?

Case Law Review

Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir. 1979) Student was injured off-campus as a passenger in a car

driven by a drunk fellow student. The court recognized that the modern university is no longer an insurer of the safety of its students because of the expanding rights and privileges of the students.

Mullins v. Pine Manor College, 449 N.E. 2d 331 (Mass 1983) If universities fail to take reasonable care, and a

foreseeable harm does occur, the university will be held liable, as it was here.

Rabel v. Illinois Wesleyan University, 514 N.E. 2d 552 (Ill. App. 1987) University is not an insurer of safety

Case Law Review

Alumni Association v. Kappa Chapter of Sigma Chi Fraternity, 572 A.2d 1209 (Pa. 1990) Whatever may have been its responsibility in an earlier era,

the authoritarian role of today’s college administrations has been notably diluted in recent decades. Trustees, administrators, and faculties have been required to yield to the expanding rights and privileges of their students.

Furek v. University of Delaware, 594 A.2d 506 (Del. 1991) The court found the university had a duty because it

assumed direct responsibility for the safety of Furek by communicating to the community about the hazards of hazing.

Case Law Review

Booker v. Lehigh University, 800 F.Supp. 234 (E.D.Pa. 1992) There was no liability because the school did not knowingly

furnish, aid, or assist in the student’s consumption of alcohol.

Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3rd Cir. 1993) Kleinknecht was a recruited athlete and was injured while

participating in an intercollegiate sport; the court drew a distinction between those actions and the private pursuits of students.

Many courts now find that colleges and universities have a heightened duty to their students, not to guarantee their safety, but to actively take steps to protect them from known or reasonably anticipated harm.

IV. Specific Issues and Questions

What mechanisms are available for managing the high risk activities of student groups?

Alcohol Education Programs Student Discipline Role of Campus Police Involvement of Parents

How do you handle transportation to student group events?

Do you require liability waivers?

Are student groups covered by insurance?