University Presidents Calling in the Police: A Tort Liability CYA? (Guest Post by Guha Krishnamurthi)

The last month has seen a massive upswell in protests over Gaza in universities all over the nation. Indeed, these may be the largest student protests of my adult life. At a number of these campuses, university administrators have called in law enforcement to dismantle encampments and remove protestors. This is the case, even when the protests have been largely nonviolent. Perhaps most stark is the situation at the University of Texas at Austin, where the school deployed police against pro-Palestinian protestors very quickly, without any ostensible signs of violence. The police arrested 57 people, but all of the charges against them were dropped soon after.

The question arises: What are these administrators thinking in so quickly resorting to the police?

There are a number of potential reasons why administrators are so quick to call in the police. Some have suggested that they are doing so to assuage politicians who have shown themselves eager to pounce on university administrators. Others have suggested that this is about keeping the donor class happy. Perhaps university administrators are trying to “restore” their own sense of order to the university, especially in light of commencement celebrations. And some university administrators are genuinely looking to curb hateful rhetoric and conduct that, even if rare, does occur. (We have seen antisemitic acts by some isolated number of protestors, and acts of Islamophobia and anti-Palestinian bigotry by counter-protestors.)

On top of this, there are related legal reasons. One proffered justification is that Title VI has forced university administrators’ hands. As Professor Dorf explains, “Title VI imposes on federally funded educational institutions—which includes virtually all U.S. colleges and universities—an obligation to prevent and remedy forbidden forms of harassment, including student-on-student harassment.” The thought then is that university administrators are obligated to take action to prevent antisemitism and Islamophobia, both covered under Title VI. Professor Dorf persuasively argues that Title VI does not require university administrators to engage in these “crackdowns.”

Here, I proffer another legal reason that may also be operating to push university administrators into so quickly seeking police intervention: tort liability. Relevant here is the 2018 California Supreme Court case of Regents of University of California v. Superior Court of Los Angeles County (Rosen), which involved the question of what duties of protection are owed by universities to their students. The facts are grisly. A UCLA undergraduate student DT (for anonymity), stricken with a mental health crisis, began to experience paranoid hallucinations that other students were mocking him. This was reported to the University and DT began treatment with university counseling and psychological services. Further concerning incidents occurred; DT often complained to his teaching assistants that particular students were tormenting him, including Katherine Rosen. One day, in class, DT stabbed Rosen in the chest and neck. Rosen suffered life-threatening injuries, but survived the attack. She then sued UCLA (and other defendants) for negligence, alleging UCLA had a special relationship with her as a student, which required UCLA to take reasonable protective measures to protect her from foreseeable criminal conduct. Here, Rosen argued, UCLA failed to warn her of DT’s dangerous propensities.

The California Supreme Court’s decision was limited to the duty question, but it did find that universities have a special relationship with students that requires universities to take reasonable protective measures to protect students from foreseeable criminal conduct. This duty certainly extends to activities related to the curriculum but “not to student behavior over which the university has no significant degree of control.” Now California law governs California, not the whole nation. But there’s a good chance that most states would find universities subject to Rosen-type duties. Rosen itself set forth compelling reasons to recognize such a duty of care of universities for their students, such as the fact that students heavily rely on universities to provide “structure, guidance, and a safe learning environment.” Moreover, to this point, California tort law has been a guide to other jurisdictions, especially in the formation of duties. For example, the famous 1976 California Supreme Court case of Tarasoff v. Regents of the University of California, relating to a psychotherapist’s duty to protect others from their patient’s conduct, has been broadly accepted by most U.S. jurisdictions.

So why might that matter here? Consider the prototypical situation. There is a campus protest, perhaps with a large encampment. These protests, especially ones with the encampments, likely violate some preexisting formal rules set by the university—including time/place/manner restrictions. Indeed, all of the university administrators taking action have claimed such violations. At the same time, there are also likely some credible allegations of misbehavior by some protestors—such as harassing speech or conduct that made someone feel endangered. 

At this juncture, there is a strong case that the university has a duty to act, per Rosen, to prevent criminal conduct. And, in this hypothetical, given the complaints, there is going to be a strong argument that any ensuing criminal conduct would have been foreseeable. Now there is some fuzziness here. Perhaps there is an argument that these protests are beyond curricular activity and so the university has no such duty. I think that’s a narrow reading of the law, and a risky one. Maintaining safe grounds for class-going students is very likely part of the Rosen duty. Moreover, the fact that there are violations of set rules—even if mere formalities—is going to weigh heavily. Imagine a putative victim’s attorney saying, “So you knew that the protest was violating the rules that you set forth and you decided to do nothing, while my client fell victim?” That’s not going to go well.

If you agree with me thus far, university administrators have to act, but we can still ask, “Why send in the police?” Here’s the critical point: university administrators have to take reasonable precautions, and as a matter of general consensus, calling for law enforcement intervention will very likely be seen as “reasonable”—in the sense relevant to tort liability. Thus, it’s an easy move for university administrators to clear any of their potential liabilities.

Importantly, that is not to say that calling law enforcement will not result in any harms. Of course, law enforcement might use unduly harsh methods that would jeopardize protestors and bystanders—including students, faculty and staff, and innocent civilians. But even in such an event—again, with reference to the litigation perspective—that is unlikely to touch the university or the university decisionmakers. If law enforcement engages in misconduct, law enforcement is liable—not the university. In this way, university administrators can externalize any of their potential liabilities. 

To be clear, I am not suggesting that university administrators are in fact making their decisions primarily based on tort liability. As discussed above, there are other powerful motivators. But tort liability is looming in the background, and its structure strongly incentivizes university administrators calling in law enforcement speedily.