006, Dr. Sandi M. Smith, Director of Institutional Relations, Global Learning Semesters, Inc.
Legal liability is often used as a weapon to guard off the timid or defend the brave. However, many staff and faculty involved in study abroad programs do not have a notion of what legal liability is and how it should guide the design and maintenance of every study abroad program.
The following article is a layman’s introduction to complicated legal principles and precedence related to the administration of study abroad programs. Clearly, it is necessary to deliver a disclaimer… the information herein is not intended to substitute for competent legal representation. The following description of legal liability is for informational purposes only. The concepts discussed here can be helpful in guiding questions for your institutional and personal legal counsel.
Liability as a legal doctrine makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of culpability (culpability is a measure of the degree to which a person can be held morally or legally responsible). However, for breach of contract or a tort, culpability may increase the measure of damages payable to compensate the plaintiff.
Sources of Liability
It does not matter our legal vocabulary and understanding, liability is something in which we are all obligated. Based on various established legal theories and precedence, duties and responsibilities are imposed on us and can carry an obligation of compliance.
The four main categories of legal liability relevant to the administration of study abroad are:
- tort law
- contract law
- criminal law
- federal law
- professional regulation
Strict liability often applies to those engaged in hazardous or inherently dangerous ventures. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying litigation and allowing the victim to become whole more quickly. According to strict liability, the plaintiff needs to prove only that the tort happened and that the defendant was responsible. Neither good faith, nor the fact that the defendant took all possible precautions are, valid defenses.
Tort law is focused on negligence for which damages may be awarded. Common tort liability is commonly measured by this question:
“Would a reasonable person have known or should have foreseen the risk or harm?”
To prove negligence, the injured party must prove,
1) the existence of a duty which the offender did not meet, and
2) that the effect of that specific failure resulted in injury to the plaintiff.
A few of the “duties” relevant to study abroad administration are:
In loco parentis is practiced to different levels at different types of campuses. For example, a church-related institution with strict behavioral codes invokes a higher standard of in loco parentis than a state-funded university. Yet, most institutions do not assume the responsibility of in loco parentis. However, it is commonly accepted among international educators that we are held to the expectations of “special relationship”, in which a duty of care is imposed because of special circumstances. Because there are more unknown factors involved in an international experience, there is a relative dependence of the student on the sponsoring institution. Thus, educators and administrators familiar with the expectation of treating college students as adults, must re-evaluate so me responsibilities when related to international programs.
Legal duties may be assumed of the property on which international programs are conducted. Although the program sponsor may not be the owner of the facilities, and it is not reasonable to expect that foreign landlords have the same standards as we do for students in the U.S., the sponsor assumes the duty to ensure reasonable standards. This includes duty to maintain the premises, provide adequate security, and warn of potential hazards.
Reasonable person standard
It is fair to assume that the courts will look to impose liability where sponsors/institutions, have not been prudent or demonstrated good faith in the care of those with whom they serve. However, the fundamental precept of negligence that the law will look to determine is “what a reasonable person under the circumstances would have done.”
Contractual understandings that may be written or oral. Unlike tort liability, contract liability is not imposed according to a duty, nor on the basis of what a reasonable person would do. Rather it is clearly an issue of “what does the contract say?” Thus, parties can control liability according to the agreement they come to. Obviously a written contract can be proven more substantially than a verbal contract. And reliance on a verbal promises outside of a written contract are not usually admissible.
Printed/media informational materials
Contracts can be created outside of a signed document. Colleges and universities have been found to be liable for representations in catalogues and other printed materials. Thus, pamphlets, flyers, brochures, letters and even websites are enforceable.
Signed agreements and contracts
Obvious reliance is placed on signed contracts and agreements. Weather it be pre-approval of transfer of credit or contracts for bus transportation, these contracts are meant to protect both parties. The more precise the terms of a contract, the m ore common understanding exists between parties. Most institutions have rules about who has the authority to sign contracts. Thus, when developing forms related to international study, it is important to have legal counsel and senior administration decide who has authority over specific types of signed agreements. Similarly, many institutions have policies and procedures about procurement contracts and thus, if an international program needs to sign contracts for transportation, housing, insurance, etc. there should be institutional policies for vetting and authorizing these contracts.
Federal law, in most cases, does not reach outside the U.S. Thus, returning to the special relationship precept,, international programs may technically be liable for maintaining standards of U.S. Federal Law as much as is reasonable. Furthermore, international programs will be under jurisdiction of the Laws of the host country. Some of the federal laws that have relevance to international programs are:
– civil rights
– Campus Security Act
– Drug Free Schools Act
Obviously, those participating in and administering study abroad programs are subject to criminal law. The most important factor to realize with criminal law is that participants and administrators are subject to local and national law in the U.S. and ALSO subject to criminal laws of the host country and any country visited along the way. The U.S. Embassy in foreign countries is a good source or information for understanding relevant host country laws. OSAC, Overseas Security Advisory Council provides relevant information at: http://www.osac.gov/. Legal protections in the U.S. are not applicable to foreign countries. And the “I did not know” defense will not protect you. Some of the criminal laws relevant to study abroad are:
– assault and battery
– drugs and alcohol
– political speech
– vehicle operations
Immunity from prosecution is offered to those employed by a public institution and may apply to certain circumstances within the responsibilities of an international program. Sovereign Immunity established by the Eleventh Amendment of the U.S. Constitution basically bars suit in federal court against entries or agents acting in an official state capacity. However, this does not absolve institutions and employees of prosecution for negligence.
It is commonly referred to as “deferred risk” when turning over students to a third-party program provider. Many institutions, realizing that they do not have the staff and resources to provide the best standard of care and expertise to study abroad programs have wisely deferred the risk of liability to a program sponsor. A deferred program sponsor may be another U.S. college or university operating international programs or an independent study abroad organization. Entering into an exchange agreement or direct enrollment agreement with a host institution does no defer risk of liability.
Legal principles for managing study abroad programs are similar to the standards used at home. Institutions are expected to “understand the nature of the program activity so that the educational benefits can be measured against the risk of harm.” (Weeks, pg. 3) Program sponsorship should be reserved for those with expertise to provide the expected duty of care, including:
- faculty and administrators should possess adequate expertise in the site location (language, culture, laws, social standards, political status, geographic and climatic issues, crime and safety, emergency resources),
- the distinct components of a program should be clearly articulated and assigned to responsible staff (faculty may be experts on the language or academic content, but not adequately trained to respond to student conduct issues, or housing safety, or emergency response),
- responsible staff are sufficiently trained and accountable for the performance of their assigned duties,
- adherence to safety standards when structuring the program, negotiating contracts, and facilitating student interactions,
- responsiveness to incidents and emergencies
Another function of program sponsorship is eminent domain. What laws and jurisdiction apply to any prosecution that might occur?
Program Structure/Risk Management
Offering a course at an international location does not inherently create a higher risk. However, there are risks inherent to some international locations, and obviously to inexperienced travelers. Studying in a classroom or library in London is not inherently more risky than in the U.S., and filed experiences in archeology will inherently have more risk in the U.S. or abroad than studying in the library. Program structure and risk management should take into consideration some of the factors that do make study in another country more risky including:
- laws and cultural customs related to alcohol consumption
- traffic patterns and laws
- social customs and interactions
- safety standards of buildings, walkways, vehicles
- public health and safety
- travel-related and site-specific high risk activities
Association of Safe International Road Travel: http://www.asirt.org.
Consular Information Sheets: http://trave.state.gov/travel/cis_pa_tw/cis/cis_1765.html
NAFSA Responsible Study Abroad:
SAFETI Clearinghouse: http://www.globaled.us/safeti/
IES Map: http://www.iesabroad.org/iesMap.do
U.S. State Dept. Travel Resources: http://www.state.gov/travelandbusiness/
Worldworx Travel Safety: http://wwww.worldworx.tv/safety/
Duty to Advise
A serious responsibility of any college or university is the function of academic advisement. More resources are being assigned to student advisement whether through faculty advisors and/or professionally trained advisors. With this increased recognition of a duty to advise, it is expected that colleges must provide the same level of informed and thorough advisement and orientation for students selecting international programs. The duty to advise encompasses choosing a program, academic structure, host country, eligibility requirements, cost, application procedures and deadlines, pre-departure orientation, conduct expectations, waiver of rights, credit transfer, financial aid, transition adjustment, and more.
Disclosure of known risks is expected. A duty of care includes:
- known or expected political, social, terrorist risk
- assessment of crime
- road, traffic and vehicle conditions
- health risks
- cultural and legal differences
- independent travel
- past incidents of students and staff
- local informants
- encourage questions and provide responses
The duty to advise must clearly cover behavior and conduct expectations of students. Depending on program sponsorship, a student should know if he/she is accountable to home-campus conduct and disciplinary standards, or does the sponsoring agency supplant home-campus policies?
Furthermore, it must be clear as to the expectations for “off-campus” conduct while participating on an international program. What is considered “off-campus” while on a program abroad: is the program housing off-campus, are group meals considered off-campus, and is weekend travel considered off-campus? An example of a U.S. campus issue is alcohol consumption in the students’ residence. Some campus residences may have rules prohibiting alcohol consumption, yet public institutions would not expect to prohibit alcohol consumption in off-campus apartments (some private institutions do have general alcohol consumption policies and attempt to prohibit it at any time on and off campus). Thus, is sponsor-provided housing on an international program considered on or off-campus?
Due process is another issue that is sometimes blurred on a Study Abroad program. It is fairly uncommon to have qualified staff to investigate student misconduct allegations, and provide due process that is expected on the home campus. Thus, it must be clearly stated that students will either waive due process or experience an abbreviated version of due process in academic and/or conduct issues while abroad.
Students should also be informed if they will face home-campus disciplinary sanctions for conduct infractions while aboard. If there are exceptions to home-campus conduct (particularly drinking age), students should understand the policies as they apply to study abroad.
Students should be informed that they are subject to local and host country laws and should not assume that those laws are the same as U.S. laws (especially regarding public intoxication, traffic offenses, drug possession, use and sales, and sexual misconduct).
The following federal statues can be applies to education abroad:
Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, religion, sex, or national origin.
Title IV of the Civil Rights Act of 1964 makes it unlawful for programs that receive federal funding to discriminate based on race, color, religion, sex, or national origin.
Title IX of the Education Amendment of 1972 make it unlawful for programs that receive federal funding to discriminate on the basis of sex.
Age discrimination in Employment Act of 1984 makes it unlawful to discriminate in employment based on age.
Campus Security Act of 1990 (Clery Act) does not contain any clear indication that it is intended to apply outside the U.S. boundaries, unless specifically a branch campus. However, in the duty to advise, it is expected that institution swill maintain data on incidents and disclose as appropriate.
Drug-Free Schools and Communities Act Amendments of 1989 are tied to federal funding. So the argument can be made that if any federal financial aid might be used for a program, it is required that the same requirements apply.
Family Educational Rights and Privacy Act of 1974 (FERPA or Buckley Amendment) It is not possible to dictate the policies and procedures of foreign institutions, however, it is necessary to understand the foreign institution’s policies and procedures. FERPA standards of care in confidentiality management should be taken by U.S. representatives.
Rehabilitation Act and Americans with Disabilities Act (ADA) is not intended for overseas institutions, however, most colleges continue to serve students where reasonable accommodations can be made. And some foreign host institutions now apply a similar standard of care in making reasonable accommodations for students and employees with disabilities.
Every campus is expected to have a crisis response plan, and thus has an outline and structure that can be translated to overseas programs. It is reasonable to expect that any institution sponsoring international activities will make proactive efforts in crisis management and response planning.
Legal liability is created by the violation of duties imposed by the 1) common law, 2) statutory law (state and federal), and 3) contract law. And despite the complexities of the law there are some fundamental precepts that can protect an institution involved in study abroad:
1. assume there is a duty to act reasonably and foresee and limit the exposure to risks which are known or should be known, and act accordingly.
2. make certain that all substantive aspects of programs are fully described in writing and that program participants receive, and understand all of the materials.
3. prepare and use an assumption of risk document appropriately.
4. ensure that all participants possess adequate insurance for every reasonable contingency.
(Weeks, pg 67)
This document is a summary of legal liability related to study abroad programming. If legal advice or other expert assistance is required, the services of a competent professional should be sought.
Kaplan, William A. 1990. The Law of Higher Education. Jossey-Bass Publishers.
Weeks, Kent M. 1999. Managing Liability and Overseas Programs. College Legal Information, Inc. Nashville, TN.