Mary-Pat Cormier: Liability of higher education institutions (HEIs) for off-campus housing risks is tricky,
Liability of higher education institutions (HEIs) for off-campus housing risks is tricky, focusing on the institution’s role in off-campus housing arrangements.
If an HEI “assumes a duty” to its students who rely on that duty, it must fulfill the duty with due care. This general rule applies to off-campus safety: For example, if the college offered a limited shuttle bus service to or from off-campus events where it was aware of drinking, it can be liable for injuries to its student struck off campus by a car driven by an intoxicated student returning from an off-campus party. By offering the shuttle service, the HEI assumed duties to students for safety while traveling between the campus and the parties.
In the off-campus housing context, the “assumed duty” theory was determinative in a 2006 Delaware Supreme Court case. A student was assaulted by the boyfriend of another student in the parking lot of off-campus housing. The housing was “offered” by the defendant university to the plaintiff who did not get into a residence. The case went forward on negligence and detrimental reliance claims, because the university “assumed” the duty to exercise reasonable care when it undertook to provide off-campus housing.
Likewise, in 2014, a New Jersey case involved a student injured by a broken window in off-campus housing that the defendant college “arranged.” The plaintiff relied on the duty of care owed by the HEI with respect to the off-campus housing it “arranged.” Therefore, it had a duty to warn the student of the defective window in the off-campus housing unit.
Where a court may “extend” a duty
Courts seem willing to “extend” duties to an HEI, related to off-campus housing, even where the institution has not “assumed” a duty.
In Massachusetts, a landlord near Boston College complained of slander and tortious interference by BC arising from alleged statements by BC to students. The court observed BC could have a duty regarding safety to a student living off campus, because it acted like it had a duty: 1) the college had an off-campus housing office (OCHO); 2) it had a Community Assistance Patrol between students and surrounding communities; 3) BC police responded to off-campus housing disturbances involving BC students; 4) the BC student handbook referred to students’ “responsible citizenship ... in local neighborhoods.”
A 2014 New Jersey case involved the liability of a private school for the violation of fire codes in off-campus housing. The school spun-off its dorms into a separate entity that the court concluded was little more than a legal fiction, and it found the school liable for the violations. The court suggested that a school may be responsible for statutory violations in off-campus housing, where there is a “mandate to liberally construe an Act to achieve the goal of fire safety.” A school may be liable for fire code violations off campus: 1) where there is some affiliation or relationship between the landlord and the school and 2) due to the nature of violated laws—i.e. fire/safety violations.
Risk management concerns
These cases demonstrate a continuum or spectrum of liability exposures for off-campus housing (Fig. 1). Risk management strategies for the liability spectrum, include:
- Language where the student waives any legal claims that they may have against the HEI arising out of off-campus housing issues, assumption of risk or limitation of liability to gross negligence in written information provided to students by an OCHO;
- Remove properties on OCHO list after written complaints—with or without investigation of complaints by the OCHO or other office of the HEI to determine whether the complaints are valid;
- Allow students to rate off-campus housing and landlords in OCHO database;
- Where a college is “arranging” or “offering” off-campus housing pursuant to a written agreement with a landlord, include indemnification, limitation of liability to gross negligence language in the contract, and “Additional Insured” status on landlord’s liability policies;
- Educate/empower students on basic landlord-tenant rights and code violations, including fire safety.
Regarding insurance, if a college or university has potential liability for off-campus housing (“assumed duty,” “offered” or “arranged”):
- Liability policies should contemplate losses taking place at those locations;
- Liability policies should respond to negligence claims, subject to exclusions, terms and conditions; whereas a breach of contract claim or a claim arising out of fire-code, housing-code, or building-code violation would likely not be covered by a liability insurance policy.
- If a school has reason to know of pre-existing hazardous conditions in off-campus housing, coverage could be barred.
- If the claim is related to a prior claim or act, there may be no coverage at all, depending on whether the insured knew of the prior matter or provided notice to the insurer.
For an HEI that owns or manages off-campus housing, these same concerns apply to liability policies. Plus, those properties are susceptible to “increase in hazard” theories, which could limit property coverage. (Generally, “increase in hazard” means that where there is an increase in hazard to insured property in the knowledge or control of the insured, insurance coverage will be suspended. If a loss occurs while that coverage is suspended, an insurance claim may be denied. If the hazard is cured, a loss after the reinstatement is covered. An increase in hazard will generally not be found if there has been merely a casual or temporary change in character of the premises. An insured’s negligence is not an increase in the hazard, unless it results in a change to the property, use, or occupancy.) Where there is an increase in hazard to insured property, which effects the safety of property–like increase in occupancy in the knowledge or control of the insured, coverage will be jeopardized.
Understanding where an HEI falls on the spectrum of liability exposures is essential to a risk-management strategy.
Mary-Pat Cormier is a partner in the Massachusetts law firm Bowditch & Dewey.
Charles Chieppo: Fighting charter-school success
Given the powerful, well-funded interests behind the plan, no one would describe it as the kind of grassroots effort the Founding Fathers had in mind when they dreamed of a dynamic democracy driven by engaged citizens. But you can't help but wonder if L.A.'s charter advocates arrived at their plan after studying Massachusetts's experience.
The Eli and Edythe Broad Foundation and other advocates have developed an ambitious plan to place nearly half of Los Angeles's public-school students in charter schools within eight years. To fund the nearly half-billion-dollar effort, backers plan to tap Broad and several other foundations, along with a number of area billionaires.
Given the powerful, well-funded interests behind the plan, no one would describe it as the kind of grassroots effort the Founding Fathers had in mind when they dreamed of a dynamic democracy driven by engaged citizens. But you can't help but wonder if L.A.'s charter advocates arrived at their plan after studying Massachusetts's experience.
Massachusetts Gov. Charlie Baker recently kicked off yet another battle to lift a state cap of 72 on the number of so-called commonwealth charter schools, which are independent of local school districts and more numerous than the in-district schools known as Horace Mann charters. About 3 percent of the state's public-school students now attend both types of charter schools, which are concentrated in urban areas.
The cap was last raised in 2010, driven largely by the prospect of $250 million from the Obama administration's "Race to the Top" grant program. A thriving charter sector was one of the criteria for receipt of the federal money.
Across the country, there is wide variation in the quality of charter schools. But few would disagree that Massachusetts' charters are the nation's best. One 2015 study, from Stanford University's Center for Research on Educational Outcomes, found that Boston charter schools are doing more to close the achievement gap than any other group of public schools in America. And a 2009 study commissioned by the Boston Foundation and conducted by Harvard and MIT researchers found that the academic impact of a year in a Boston charter school is roughly equivalent to a year spent in one of the city's elite public "exam schools."
And it isn't just Boston's charters. Massachusetts' K-12 public schools are the best-performing in the country, and across the state 18 charters finished first last year on state tests. That's a big part of the reason 37,000 state students are on charter-school waiting lists, a situation that Baker calls "a disgrace."
So why, given the outstanding performance of so many of Massachusetts' charter schools, is it always such a battle to allow more of them? Opposition from superintendents, school boards and teachers' unions is a very powerful thing in what is -- with the exception of Gov. Baker and Lt. Gov. Karyn Polito, who are Republicans -- a one-party state when it comes to officials who are elected statewide.
Opponents make a number of arguments, but the main one comes down to the claim that charters drain money from traditional public schools. In a sense, they do. In Massachusetts, the money follows the student; when a student chooses to go to a charter school, the per-pupil funding goes along with him or her.
But what opponents rarely mention is that districts are fully or partially reimbursed for six years for each student they lose. During the first year, they receive 100 percent of the funding they would have received had the student stayed, then 25 percent for each of the next five years. That fact makes the opponents' money argument dubious at best.
Sadly, dysfunction breeds dysfunction. The resistance that Massachusetts supporters encounter in trying to expand the number and availability of charter schools is familiar to charter advocates across the country. Plenty of that resistance exists in Los Angeles, so the L.A. advocates' effort to do an end-run around democratic processes surprises no one.
In the end, we all lose when promising school reforms are blocked by interests threatened by changes in the status quo. Families are denied educational opportunity, local economies become less competitive because the potential of thousands of students is never realized, and citizens' faith in government sinks even lower.
Charles Chieppo (Charlie_Chieppo@hks.harvard.edu) is a research fellow at the Ash Center of Harvard's Kennedy School and the principal of Chieppo Strategies, a public-policy writing and advocacy firm. This piece first ran in governing.com, the Web site of Governing magazine.
That old saw about...
"Unihemispheric Existence'' (detail) (steel, wood, gallery wall), by WILSON HARDING LAWRENCE, in the show "Nuanced: open-endedness, capaciousness and other provocative conditions of making,'' at the Dedee Shattuck Gallery, Westport, Mass., through Nov. 8.
"Unihemispheric Existence'' (detail) (steel, wood, gallery wall), by WILSON HARDING LAWRENCE, in the show "Nuanced: open-endedness, capaciousness and other provocative conditions of making,'' at the Dedee Shattuck Gallery, Westport, Mass., through Nov. 8.
Safer up here
"Humming II'' (mixed media and resin on panel), by SUSAN GOLDSMITH, at Lanoue Fine Art, Boston.
"Humming II'' (mixed media and resin on panel), by SUSAN GOLDSMITH, at Lanoue Fine Art, Boston.
Chris Powell: An immigration policy that might save America
Such a policy of generous, strict, controlled, careful, and patriotic immigration would safeguard the country and its culture, be generous to its illegal aliens, and advance the country's ideals as the universal nation.
Pope Francis told Congress last week that the United States should welcome migrants and refugees, as if the country's record in that respect wasn't already infinitely more liberal than that of Vatican City, over which the pope presides.
For while the United States has plenty of immigration law, lately it has had little immigration law enforcement. Most people caught entering the country illegally are given a summons to attend an immigration court proceeding and are waved through.
Of course three-quarters of them never show up in court. Instead in many instances they head for "sanctuary cities" like Hartford and New Haven, where local police are forbidden to assist enforcement of immigration law, and for "sanctuary states" like Connecticut, where illegal immigration is facilitated by the award of driver's licenses, city identification cards, and resident tuition discounts at public colleges.
This is nullification of federal immigration law and the nullifiers include President Obama, Governor Malloy and a majority of Connecticut's state legislators, as well as the people in charge of city government in Hartford and New Haven.
Of course this doesn't make any particular immigrant a bad person, but any country that cannot control its borders and enforce conditions for permanent residency and citizenship will not remain a country for long. Indeed, in New Haven, where the "sanctuary city" movement is an especially ideological one based at Yale University, it is sometimes admitted that the objective is indeed to erase the country's borders. As a practical matter that is treason.
So for the United States the primary question about immigration is whether the country wants to maintain itself as a republic with a distinctly democratic and secular political culture, the more so as immigrants from totalitarian and religiously fanatical cultures, immigrants who have little intention to assimilate into the cultures of their new countries, are extensively penetrating what used to consider itself as the West.
Europe is already fairly mocked as Eurabia, having accepted millions of Arabs who were economic rather than political refugees and who have formed separatist communities seeking to be governed by religious rather than secular law. By the European Union's own statistics, 80 percent of its migrants lately are not as generally imagined, refugees from the civil war in Syria, but economic migrants from throughout Africa and the Middle East. They have run welfare costs up and the wage base down.
In the United States organized labor has pretty much capitulated to uncontrolled immigration, though unlimited immigration here also undermines the wage base and weakens the economy when much of the money earned by immigrants is only sent out of the country to relatives abroad.
Organized labor can take such a position only because it strives to be politically correct and has come to represent mostly government employees, whose jobs and compensation are immune to immigration, rather than private-sector workers, whose jobs and compensation are not immune.
There is probably no compromise between the immigration law nullifiers and the angry and heartless people who want to deport the estimated 11 million illegal aliens in the country, including innocent young people who were brought here by their parents and know no other homeland and whose plight is partly the result of the U.S. government's own negligence with immigration enforcement.
But a political majority might be mustered behind the sort of immigration reform that moderates in Congress have long proposed:
*Strict border control, with no more waving illegals through, but with close tracking and prompt expulsion of visitors who overstay visas.
*Once strict border control is established to everyone's satisfaction for a year, grant eligibility for permanent residency to those who can demonstrate self-sufficiency, proficiency in English, knowledge of U.S. history, and devotion to a democratic and secular culture, and after five years make them eligible to apply for citizenship.
Such a policy of generous, strict, controlled, careful, and patriotic immigration would safeguard the country and its culture, be generous to its illegal aliens, and advance the country's ideals as the universal nation.
Call it a Lincolnian plan, as it was implied by Lincoln as he campaigned for the U.S. Senate in Illinois in July 1858, just after Independence Day.
We hold this annual celebration to remind ourselves of all the good done in this process of time, of how it was done and who did it, and how we are historically connected with it, and we go from these meetings in better humor with ourselves.
We feel more attached the one to the other, and more firmly bound to the country we inhabit. In every way we are better men in the age, and race, and country in which we live for these celebrations.
But after we have done all this we have not yet reached the whole. There is something else connected with it.
Besides these men descended by blood from our ancestors, we have among us perhaps half our people who are not descendants at all of these men. They are men who have come from Europe -- German, Irish, French, and Scandinavian -- who have come from Europe themselves or whose ancestors have come hither and settled here, finding themselves our equals in all things.
If they look back through this history to trace their connection with those days by blood, they find they have none. They cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us.
But when they look through that old Declaration of Independence they find that those old men say, “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood and flesh of the flesh of the men who wrote that Declaration -- and so they are.
An immigration policy that offered citizenship to those who wanted not just to live here but to be fully American might give the country a better class of citizens than the native-born, so many of whom are ignorant about their country and take it for granted.
Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.
Exploring a sweet but threatened industy
"Karl with Honeybears'' (oil on canvas), by DAVID PETTIBONE, at the Corey Daniels Gallery, Wells, Maine.
"Karl with Honeybears'' (oil on canvas), by DAVID PETTIBONE, at the Corey Daniels Gallery, Wells, Maine.
Mr. Pettibone's "Beekeeper'' series explores the beekeeping business, from "honey harvest to monoculture pollination to fighting the diseases that threaten our complex relationship with the honeybee and its very existence.''
Transnational art
"Arcology'' (detail; gouache and Lascaux acrylics on archival papers), by Ilona Anderson, in her show "Arcology,'' at Kingston Gallery, Boston, through Nov. 1.
The gallery says the ..."diverse and radiant conglomerate says as much about the potential for transnational understanding as it does for racial relations, both in her native South Africa and in the United States.''
Beautiful land, in a way
"Whale's Jaw, Dogtown,'' from the archives of the Cape Ann Museum, in Gloucester.
"Whale's Jaw, Dogtown,'' from the archives of the Cape Ann Museum, in Gloucester.
Dogtown is an abandoned inland settlement on Cape Ann. Once known as the Common Settlement and populated by respectable citizens, the area later known as Dogtown is divided between Gloucester and Rockport. It's in an area not well suited to agriculture, because of poor and very rocky soil. It's not all that great for building either. You need a lot of dynamite.
The boulders above, of course, came from what is now Canada in the last Ice Age.
The look of such landscapes is chilling, even in summer. The whaling reference is to be expected in coastal New England.
The quiet catboat
"Sailing Off Morris Island (Chatham, Cape Cod),'' by BOBBY BAKER (copyright Bobby Baker Fine Photography).
"Sailing Off Morris Island (Chatham, Cape Cod),'' by BOBBY BAKER (copyright Bobby Baker Fine Photography).
This is a catboat. I love catboats, with their comfort, especially their wide cockpits, and lack of pretension. Pure sailing pleasure, albeit without a lot of adrenaline involved, and with mediocre upwind performance.
Catboats have centerboards, which make them very handy along sandy coastlines such as Cape Cod and Long Island.
'When I was a boy, about half the boats in West Falmouth (Mass.) Harbor were catboats. There are far fewer now; they aren't sexy enough.
--- Robert Whitcomb
Paul A. Reyes: Jeb Bush has had freebies his whole life
The Republican Party has struggled for years to attract more voters of color. In a recent campaign appearance, candidate Jeb Bush offered yet another useful case study of how not to do it. At a campaign stop in South Carolina, the former Florida governor was asked how he’d win over African-American voters. “Our message is one of hope and aspiration,” he answered. So far, so good, right?
“It isn’t one of division and get in line and we’ll take care of you with free stuff. Our message is one that is uplifting — that says you can achieve earned success.”
Whoops.
With just two words — “free stuff” — Bush managed to insult millions of black Americans, completely misread what motivates black people to vote, and falsely imply that African Americans are the predominant consumers of vital social services.
First, the facts.
Bush’s suggestion that African-Americans vote for Democrats because of handouts is flat-out wrong. Data from the Joint Center for Political and Economic Studies shows that black voters increasingly preferred the Democratic Party over the course of the 20th Century as it stepped up its support for civil rights.
These days, more than 90 percent of African Americans vote for the Democratic Party’s presidential candidates because they believe Democrats pay more attention to their concerns. Consider that in the two GOP debates, there was only one question about the “Black Lives Matter” movement. When they do comment on it, Republican politicians feel much more at home criticizing that movement against police brutality than supporting it.
Bush is also incorrect to suggest that African-Americans want “free stuff” more than other Americans. A plurality of people on food stamps, for example, are white.
Moreover, government assistance programs exist because we’ve decided, as a country, to help our neediest fellow citizens. What Bush derides as “free stuff” — say, Medicaid, unemployment insurance, and school lunch subsidies — are a vital safety net for millions of the elderly, the poor, and children, regardless of race or ethnicity.
How sad that Bush, himself a Catholic, made his comments during the same week that Pope Francis was encouraging Americans to live up to their ideals and help the less fortunate.
Finally, Bush’s crass comment is especially ironic coming from a third-generation oligarch whose life has been defined by privilege.
Bush himself is a big fan of freebies. The New York Times has reported that, during his father’s 12 years in elected national office, Bush frequently sought (and obtained) favors for himself, his friends, and his business associates. Even now, about half of the money for Bush’s presidential campaign is coming from the Bush family donor network.
And what about those corporate tax breaks, oil subsidies and payouts to big agricultural companies Bush himself supports? Don’t those things count as “free stuff” for some of the richest people in our country?
It’s also the height of arrogance for Bush to imply that African Americans are strangers to “earned success.” African-Americans have been earning success for generations, despite the efforts of politicians like Bush — who purged Florida’s rolls of minority voters and abolished affirmative action at state universities.
If nothing else, this controversy shows why his candidacy has yet to take off as expected. His campaign gaffes have served up endless fodder for reporters, pundits, and comics alike.
Sound familiar?
As you may recall, Mitt Romney helped doom his own presidential aspirations by writing off the “47 percent” of the American people he said would never vote Republican because they were “dependent upon government.”
In Romney’s view, they’re people “who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to health care, to food, to housing, to you-name-it.”
Sorry, Jeb. The last thing that this country needs is another man of inherited wealth and power lecturing the rest of us about mooching.
But not touching
"Physicality'' (photography, oil, narrative text and resin on panel), by SHERRY KARVER, in her show "Objects of Affection,'' at Lanoue Gallery, Boston, through Oct. 31.