Dual Enrollment Programs: Litigation and Equity

Providing a Historical Understanding of Dual Enrollment Programs

Dual enrollment programs began to take shape in the 1980s. Many states, during this time, started implementing policies that allowed high school students to attend community colleges (McCarthy, 1999). In most instances, students needed to earn superior grades in their high school work, pass entrance exams, and receive a recommendation from high school administrators to qualify for admission into dual enrollment programs (Education Commission of the States, 2015; McCarthy, 1999). Minnesota implemented the first dual enrollment programs in 1985 (Boswell, 2001). The stated intent of the Minnesota program was “to promote rigorous academic pursuits and provide a variety of options for juniors and seniors in high school by giving them the opportunity to take college courses at state expenses” (Minnesota Office of the Legislative Auditor, Program Evaluation Division, 1996, p. 1). Other states followed Minnesota’s lead, and in 1990, the state of Washington implemented its Running Start program allowing high school students to enroll at one of the state’s 33 community or technical colleges (Crossland, 1999). Dual enrollment programs have proven to be a wildly popular education policy over the past three decades; since the first dual enrollment programs in 1985, nearly every state has implemented some form of a dual enrollment program (Education Commision of the States, 2015). Alaska remains the only state without a statewide dual enrollment program (Education of the States, 2015). Similarly, but not exactly, Pennsylvania has authorized a statewide policy enabling dual enrollment; however, the program is not utilized due to inadequate funding (Education of the States, 2015). Despite near uniform approval of dual enrollment programs across different states, individual states have implemented dual enrollment programs in divergent and disparate manners.

The fact that specific models of dual enrollment programs vary by how states choose to implement policies authorizing dual enrollment programs is not unordinary given that the implementation of education policy is an area of state as opposed to federal concern; because of the circumstances and specific state policy, nearly all state-implemented dual enrollment programs share similar, yet variant, characteristics. According to the Education Commission of the States (2015), 25 states and the District of Columbia have programs that allow a student to earn both high school and college credit. In states such as Kansas, Massachusetts, Minnesota, New Jersey, Ohio, and Washington, students can earn college credit immediately upon successful completion of the course (Education Commission of the States, 2015; McCarthy, 1999). Although many states allow students to automatically receive credit upon the completion of the dual enrollment course, other states are less generous, sometimes restricting the number of courses the student is allowed to take and receive dual credit. For instance, according to the Education Commission of the States, Ohio students are limited to 30 hr per year and 120 hr total while a high school student and have to select if they want the credit to count for high school, college or both. Comparatively, in Iowa, there are three such programs limited to 24 hr per year available, each with its own regulations governing the awarding of credit: District-to-Community College Sharing or Concurrent Enrollment, Postsecondary Enrollment Options, and Project Lead the Way (Education Commission of the States, 2015).

State implementation of dual enrollment programs also lacks complete consensus on who may participate in such programs. For example, in most states, there are policies in place that restrict initial eligibility with a few states requiring written approval or recommendation from the school district before the student can become eligible for dual enrollment programs (Education Commission of the States, 2015; McCarthy, 1999). In most cases, the individual student or student guardian remains the final authority in accepting placement in dual enrollment programs (McCarthy, 1999). In states such as Alabama, Georgia, Hawaii, and Iowa, only students entering their junior and senior years of high school are eligible (Education Commission of the States, 2015). There are further differences regarding minimum grade point average (GPA) requirements. Some states (Alabama, Florida, Louisiana, Maine, Mississippi, Missouri, North Carolina, and South Carolina) require students to maintain a minimum GPA to be eligible for these programs. Louisiana holds the lowest GPA requirement, with only a 2.0 on a 4.0 scale needed to enter into eligibility for dual enrollment programs. Florida, in comparison, requires a student to maintain at least a 3.0 weighted or (2.0 unweighted for career certificate dual enrollment program) on a 4.0 scale. Florida’s GPA requirement is unique in that the secondary and postsecondary schools are allowed to waive the grade requirement if the schools agree the student is adequately prepared to handle such coursework (Education Commission of the States, 2015).

Most states limit dual enrollment eligibility to students who are entering their junior year of high school. A few states (Arizona, Arkansas, and Minnesota) specifically indicate that ninth- and 10th-grade students may become eligible upon the fulfillment of specific criteria (Education Commission of the States, 2015). Furthermore, select states such as Louisiana (15 years old), Montana, and Oregon (16 years old) set age limits to be used if the student is not in junior- or senior-level status or is enrolled in homeschooling. Oklahoma has similar age restrictions as does Montana and Oregon, but they reduce the age of homeschooled students’ eligibility to 13 years (Education Commission of the States, 2015). Florida is the exception to the rule with regard to age limitations. As of 2014, the state allows homeschooled students as early as Grade 6 to enroll in dual enrollment programs (Education Commission of the States, 2015; Fla. Stat. § 1007.271, 2015). Students who enroll in dual enrollment programs are typically underage (or beneath the age range that is typical of college students), and the youthfulness of these students may pose a risk to dual enrollment students who are simultaneously enrolled in primary or secondary schools and to postsecondary institutions. Given the special treatment that courts often give to disputes involving postsecondary institutions and the students enrolled in those schools, all parties to such lawsuits may find themselves in unchartered territory. Potential legal challenges, both known and unknown, may require local school districts and postsecondary institutions to pursue advanced protections to ensure the safety of minors who are enrolled in dual enrollment programs on college and university campuses.

Potential Benefits of Dual Enrollment Programs for Disenfranchised Students

Multiple studies have examined the benefits of dual enrollment programs for historically and contemporaneously marginalized and disenfranchised students (An, 2013; Ganzert, 2012: Smith, 2014; Speroni, 2011). These studies suggest that dual enrollment programs have resulted in positive outcomes for historically disadvantaged students, including students who are racial/ethnic minorities, students of low socioeconomic status, and female students. Speroni (2011) suggested that, despite being disproportionately more likely to initially enroll at a community college, minoritized students are able to transfer to a four-year college and graduate with a bachelor’s degree at higher rates than minorities who do not participate in any acceleration program.

Furthermore, research has shown dual enrollment courses to relieve students from the stressors of boredom commonly associated with the senior year of high school and allow a student increased independence in individualized study (Klein, 2007; Morrison, 2008).

Ganzert (2012), using North Carolina as a research site, looked at GPA and graduation rates for students currently enrolled in college who had taken part in dual enrollment programs. His findings evidence the importance of such programs on increasing positive outcomes for historically and contemporaneously marginalized and disenfranchised students. These findings indicate higher GPAs for first-year female students as compared with female students who did not enroll in dual enrollment programs (Ganzert, 2012). The findings in Ganzert’s study also indicate comparatively higher first-year GPAs for non-White students who participated in dual enrollment programs as compared with their non-White counterparts who did not participate in such programs. Furthermore, the Ganzert study indicates increased graduation rates and success in the first year of college for non-White students who engage in dual enrollment programs. Ganzert’s study is important because it illustrates how dual enrollment programs might benefit historically and contemporaneously marginalized and disenfranchised students. His findings comport with previous studies on the benefits of dual enrollment programs (Hoffman, 2005; Kim, 2006; O’Brien & Nelson, 2004).

The correlation of participation in dual enrollment programs and higher academic achievement supports the notion that academic track placement of individual students either promotes or inhibits academic achievement. Previous research (An, 2013; Breen & Jonsson, 2000; Gamoran & Mare, 1989) suggests that different academic tracks in high school affect the overall academic outcomes and chances of postsecondary attendance or placement for students in enrolled in those various tracks. As An (2013) noted, “[a]ccelerated programs expedite a student’s college experiences . . . dual enrollees are further able to earn college credit while in high school giving participants momentum into the next transition” (p. 410).

Stratification in education has been consistent since the 1980s (An, 2013). In the same time period, high school graduation rates have increased from roughly 68% in 1980 to 88% in 2013 (National Center for Education Statistics, 2013). This has placed importance on college attendance and completion as the means of upward mobility for many individuals. As states struggle to supplement higher education funding for students (Geiger, 2015; Price, Schneider & Quick, 2016; Tilak, 2015), dual enrollment programs promise to provide potential cost defrayment for historically and contemporaneously marginalized and disenfranchised students. As Hoffman et al. (2009) stated, this might be a financially beneficial double-edged sword due to decreasing the “cost of postsecondary education by compressing the years of financial support needed” (p. 44). The potential of removing potential financial barriers to underprivileged students is a double-edged sword because dual enrollment students are typically underage and seemingly underdeveloped for exposure to a college campus. It is, therefore, imperative that scholars consider the potential physical and emotional harms to dually enrolled students when assessing the benefits of dual enrollment programs. Scholarly literature suggests that dual enrollment programs may—to some extent—be beneficial to the academic development of students, particularly students who have experienced historical inequities in relation to educational equity and access, but the remainder of this article will discuss the risks to students as well as schools (secondary and postsecondary) when implementing dual enrollment programs. The most obvious harm for dual enrollment students is the harm related to potential sexual assault. The potential of a dual enrollment student to suffer a sexual assault is aggravated by the fact that not all states require—by legislation—that all citizens, especially employees of colleges and/or universities, are mandatory reporters of suspected child abuse (U.S. Department of Health & Human Services, 2016). Even more troubling, there have been more recent trends of increased efforts to combat sexual assaults of both students who are minors and adults on the campuses of higher education institutions. Given that children are often viewed as more vulnerable to sexual assaults than are adults, it is important to consider the potential legal impact(s) of dual enrollment students’ presence on higher education campuses designed for adults.

Higher Education, Negligent Behaviors, and Legal Liability in General

Whether a college or university is legally liable for injury to students or other guests that occurs on the school’s campus will almost certainly be a matter of tort law based on negligence rather than tort law based on intent. It is highly unlikely, although reasonable to predict, that a college or university might intentionally harm one of its students or any other guest. Rather, it is most likely that plaintiffs with claims against a college or university will base their claims on a legal argument that alleges the college or university was somehow negligent. In general, negligence has a common definition across the United States although the delineation of the factors of negligence sometimes varies across jurisdictional lines. To find that a college or university has been negligent in the injury of a plaintiff, courts must generally find that (a) the college or university owed the plaintiff a duty of care; (b) the college or university’s behavior did not comport with a standard of care that would fulfill the duty of care; (c) an actual, as opposed to hypothetical, injury or loss occurred; and (d) the institutions’ behavior as the cause of the injury (Owen, 2007). Causation must be both in fact (where the event causing the injury would not have happened but for the college or university’s negligence) and proximal (where the event is connected closely enough to a legally recognized injury or loss that the event could be said to have caused the loss; Owen, 2007).

A college or university does not owe every visitor an equivalent duty of care. The level of care owed to a visitor to a college or university campus is typically a matter of whether the visitor arrived to the campus as a licensee or an invitee (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987). This discussion is pivotal in determining whether a college or university will be liable for injury that a visitor suffers while associated, however briefly, with the college or university (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987). Courts have given some guidance on distinguishing between a licensee and an invitee (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987). A licensee is a person who enters the college campus for a purpose that does not benefit the college or university; rather, the licensee will typically stand to benefit, or at the minimum, not harm the college or university, and a licensee will likely have come to the campus without prompting from the college or university and for the licensee’s own convenience (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987). An invitee, on the contrary, has been invited to the campus of the college or university for the purpose of conducting business with or for the college or university (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987). The difference between an invitee and a licensee is best illustrated through analogy. Patrons at a local eatery would be invitees if the patrons are at the eatery for the purpose of purchasing and/or eating meals. On the contrary, the patrons would only be licensees if they arrived at the restaurant for the mere purpose of soliciting donations for charity or simply using the restroom. As related to claims of negligence, an invitee is owed a higher duty of care than a licensee. A college or university owes an invitee the duty of reasonable care (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987) while the invitee is in the portion of campus where the invitee has been invited or in the portion of campus where the invitee believes to have been invited (Hamby v. State of Tennessee, 2004). Meanwhile, a college or university owes a licensee only the duty to avoid injuring the licensee by willful or wanton misconduct (Doelker v. Ohio State University, 1990; Gilpin v. Ivy Tech State College, 2007; Thompson v. Kent State University, 1987).

Whether dually enrolled students are licensees or invitees is paramount to determining the potential impact of law, policies and procedures allowing for dual enrollment of high school students at higher education campuses. It is difficult to argue that dually enrolled students are not invitees. Dually enrolled students have been invited to campus for the express purpose of taking coursework. Dually enrolled students are not on campus for the students’ mere convenience; these students are conducting business with the school. Moreover, these students are on college or university campuses to conduct the exact type of business for which colleges and universities have been designed to conduct: accessing higher education. Thus, dually enrolled students are, in fact, invitees onto college and university campuses.

Although no courts have directly addressed the fact pattern where a student whether dual enrollment or college-aged has entered the campus during times when the student does not have class or other school-related business, the Ohio state courts have provided some guidance as to determining whether students not on campus for class meetings or other school-related business are invitees or licensees. In Doelker v. Ohio State University (1990), the Ohio state court found that a contractor normally on campus to provide consultations on dental treatments for “mentally retarded” patients was a licensee, rather than an invitee, when the plaintiff appeared on campus for the Special Olympics. The court reasoned that the Ohio State University did not accrue any benefit from the contractor’s appearance on campus for the Special Olympics. If other state courts follow the lead of the Ohio court, students who enter campus for their own benefit and not for the benefit of the school may be viewed as licensees as opposed to invitees. This distinction would require a lower duty of care for the university when the student enters the campus without the intention to participate in school-based and school-sanctioned activities. This distinction is even more important when considering the impact of the Ohio court’s decision on dual enrollment students. Unlike traditional college students, dual enrollment students may be specifically banned from campus, parts of campus, and/or events—either implicitly or explicitly—given various scenarios. A dual enrollment student’s violation of such restrictions might assure that the student is not an invitee when in violation of the restrictions.

State Court Negligence Decisions When the Plaintiff Is Not a Student

Adult visitors, outside of students, employees, and business partners, are generally licensees to college or university campuses. State courts in Florida, Indiana, Louisiana, Ohio, and Tennessee have considered the duty of care that colleges and universities owe to licensees. In general, colleges and universities are not required to insure the absolute safety of licensees; colleges and universities are also not required to protect licensees from licensee’s unforeseeable misbehaviors. Likewise, colleges and universities need not warn licensees of dangers that are open and obvious to the reasonable person. If colleges and universities are to protect themselves from plaintiffs, specifically dual enrollment students not on campus for school-related or school-sanctioned business, who claim injury as a result of the college or university’s negligence, a viable option for defense would be an assertion that the peril of the situation befalling the plaintiff was open and obvious to the reasonable person (Doelker v. Ohio State University, 1990). Colleges and/or universities are also not required to warn would-be-plaintiffs of dangers of which the would-be-plaintiffs could have discovered by undertaking reasonable levels of care (Blust v. Berea College, 2006; Hamby v. State of Tennessee, 2004).

One argument that colleges and universities have used to avoid liability is that the danger to the plaintiff was open and obvious. It is generally thought that a property owner does not have to warn a visitor of peril that is open and obvious if the harm that befell the visitor was foreseeable in relation to the noticeable danger. A Kentucky state court applied this exact analysis in Blust v. Berea College (2006). In Blust, a family climbed “a cliff-overhang high enough to look down on the tops of mature trees” (Blust v. Berea College, 2006, p. 704). According to the Kentucky court, the cliff was of local fame and was known by the plaintiff before she elected to ascend the cliff (Blust v. Berea College, 2006). The plaintiff took off her shoes during the ascent and approached within a few feet of the edge of the cliff (Blust v. Berea College, 2006). When turning to begin her return to level ground, the plaintiff slipped causing her fall, and the fall ultimately resulted in her death (Blust v. Berea College, 2006). The Kentucky court, in Blust v. Berea College, reasoned that the danger of slipping and falling from the edge of a cliff was open and obvious to anyone exercising an ordinary duty of care. The Blust v. Berea College court upheld summary judgment for the college and stated that the college had no duty to warn of a danger that was both open and obvious to the plaintiff.

In Hamby v. State of Tennessee (2004), a Tennessee court of appeals confirmed the Tennessee Claims Commission’s finding that the plaintiff in a negligence action was at least equally at fault as a state university for his injuries. In Hamby v. State of Tennessee, the plaintiff fell through a system of grates covering a ventilation system. The court noted the fact that the grates were particularly placed to prevent potential plaintiffs from falling into the ventilation pit (Hamby v. State of Tennessee, 2004). Along those same lines, the court was attentive to the fact that the school posted no signage that advised passersby to avoid walking on the grates and that the grates had been “in place for twenty to twenty-five years” (Hamby v. State of Tennessee, 2004, p. 4). The plaintiff in Hamby was an engineer contracted to assess the ventilation system that the grates covered (Hamby v. State of Tennessee, 2004). The plaintiff in Hamby v. State of Tennessee differed from most adult visitors to a college campus because he was an invitee. The state argued that the grates were not intended to be used as a walkway and that the plaintiff used the grates as a walkway; thus, the plaintiff, given his expertise as an engineer, should have known of the impending danger of his actions (Hamby v. State of Tennessee, 2004). The Hamby v. State of Tennessee court rebuffed the state’s argument stating that peril that is open and obvious does not in and of itself absolve a property owner of his or her duty of care. Unlike the Kentucky court in Blust v. Berea College (2006), the Tennessee court declared that the proper investigation should consider the “foreseeability and gravity of the harm, and the feasibility and availability of alternative conduct that would have prevented the harm” (Hamby v. State of Tennessee, 2004, p. 11). Continuing, the court declared, “the duty due an invitee exists only while the visitor is on the part of the premises which the occupier has opened to the visitor for the purpose that makes the visitor an invitee” (Hamby v. State of Tennessee, 2004, p. 12). The Hamby v. State of Tennessee court found, however, that the plaintiff’s behaviors and whereabouts were foreseeable given the reasons for the plaintiff’s appearance on the campus (Hamby v. State of Tennessee, 2004). The court went on to find that the state’s negligence did, in fact, cause the plaintiff’s injuries (Hamby v. State of Tennessee, 2004). The court also found, however, that the plaintiff’s “training, experience and knowledge” should have alerted him to the perilous circumstance of which he found himself (Hamby v. State of Tennessee, 2004).

An Indiana state appeals court reached a similar result in a similar but not identical case, affirming summary judgment in favor of Ivy Tech State College when the father of a student slipped on loose gravel while walking on the college’s campus (Gilpin v. Ivy Tech State College, 2007). In Gilpin v. Ivy Tech State College (2007), the plaintiff accompanied his adult child to campus as the child moved into his dormitory (Gilpin v. Ivy Tech State College, 2007). The father, at some point, left his vehicle for the purpose of using the restroom (Gilpin v. Ivy Tech State College, 2007). The father stepped on gravel from a nearby landscaping site during his walk, and the father’s passage over the gravel ultimately resulted in the father slipping and falling into an adjacent street (Gilpin v. Ivy Tech State College, 2007). The father sustained severe bodily injury as a result of the fall and filed suit which was summarily dismissed by the trial court alleging negligence on behalf of the university (Gilpin v. Ivy Tech State College, 2007). The Indiana state courts found that the father was a licensee to the campus as the father was not on campus “to pursue his own educational objectives” (Gilpin v. Ivy Tech State College, 2007, p. 402). Furthermore, the court found pertinent the fact that the father did not enter the campus “to speak to Ivy Tech personnel on his son’s behalf or to provide advice to his son regarding his educational opportunities”; in fact, the son “had concluded his business with Ivy Tech for the day” (Gilpin v. Ivy Tech State College, 2007, p. 402). The Indiana court declared that the father should have been aware of the danger of slipping on the loose gravel given the fact that the gravel’s presence was open and obvious (Gilpin v. Ivy Tech State College, 2007). Because the plaintiff had walked over the gravel for sometime before reaching a point where he stood stationary on the gravel before falling after he restarted upon his path, the Gilpin court did not find that the peril that awaited the plaintiff was latent (Gilpin v. Ivy Tech State College, 2007).

In McCarthy v. Broward College (2015), a Florida state appellate court reached a result similar to Gilpin and upheld summary judgment in favor of Broward College using reasoning similar to the Gilpin court after a district court ruled against Linda McCarthy who had fallen after encountering alleged rainwater in an on-campus elevator. The plaintiff in McCarthy argued that Broward College was negligent in not cleaning what the plaintiff alleged to be standing rainwater after an intermittent summer rain (McCarthy v. Broward College, 2015). The Florida state courts reasoned that residents of Florida are “familiar with [the] state’s summer storms” (McCarthy v. Broward College, 2015, p. 81). Once again, the danger to the plaintiff was not latent; the reasonable Florida resident would expect standing rainwater although it would not be possible to predict the exact location of that rainwater. Moreover, the Florida state court stated that “a large expanse, like a college campus” is granted greater leniency with regard to the inspection of the property for potential hazards (McCarthy v. Broward College, 2015, pp. 81-82).

Based on Hamby, Gilpin, and McCarthy, foreseeability is the gravamen of negligence cases. Thus, colleges and universities are typically not responsible for the unforeseeable misbehavior of licensees. This result is unsurprising because colleges and universities are likely unable to be able to predict every unreasonable action of the various and multitude of visitors who might arrive to the campus. State courts in Ohio and Tennessee have considered the liability of colleges and universities when would-be-plaintiffs engage in behaviors that the college or university did not foresee. In Thompson v. Kent State University (1987), an Ohio state court found for Kent State University when a parent filed suit alleging negligence on the part of the university. The pertinent facts of Thompson v. Kent State University (1987) involve the plaintiff’s decision to exit a paved walkway. The plaintiff while walking on a paved, 8-foot-wide sidewalk stepped off of the sidewalk; the plaintiff’s actions resulted in her slipping and falling and incurring injury to her shoulder (Thompson v. Kent State University, 1987). The plaintiff exited the sidewalk in a voluntary attempt “to avoid people approaching from the opposite direction” (Thompson v. Kent State University, 1987, p. 528). The area onto which the plaintiff entered had been worn by frequent travel and had not been cordoned off or otherwise protected from entry; in fact, the plaintiff had herself traveled the area in the past (Thompson v. Kent State University, 1987). The Thompson v. Kent State University court found that rain had made the area slippery and that there was adequate natural lighting at the time of the accident (Thompson v. Kent State University, 1987). The Ohio court analyzed the facts of Thompson v. Kent State University with the acknowledgment that the plaintiff was a licensee because the plaintiff’s sole purpose for visiting campus was to accompany her daughter to her dormitory. The Ohio court went on to find in favor of Kent State University, reasoning that the plaintiff voluntarily exposed herself to the hazardous situation and that the plaintiff was required to exercise a certain degree of care to protect her own safety (Thompson v. Kent State University, 1987). Furthermore, the court stated that the university does not owe visitors a duty to protect the visitor “from all conceivable dangers that they might face while on the premises” but rather a duty to avoid exposing the visitor to “an unreasonable risk of harm” (Thompson v. Kent State University, 1987, p. 528). The plaintiff in Thompson was not an invitee; she was a licensee. Thus, Kent State University only owed the plaintiff the duty to avoid injury that was the result of “willful or wanton misconduct” (Thompson v. Kent State University, 1987, p. 528).

The Tennessee state courts would reach a result similar to that of the Ohio court when considering a similar case. In Dobson v. State of Tennessee (1999), a Tennessee appellate court affirmed the decision of a state commissioner in regard to the injury of an invitee to a college campus. The commissioner found that the plaintiff placed herself in harms way by acting in an unforeseeablely negligent manner (Dobson v. State of Tennessee, 1999). The plaintiff in Dobson v. State of Tennessee tripped over a metal strip abutting a grassy knoll directly in front of a building on campus (Dobson v. State of Tennessee, 1999). The plaintiff had never been to this part of campus and had no reason to suspect that the metal strip, which had been installed to prevent mud from washing upon the paved sidewalk, created a potential hazard to visitors making use of the university’s marked pathway for ingress and egress (Dobson v. State of Tennessee, 1999). The plaintiff in Dobson v. State of Tennessee was rightfully on campus and behaved in a manner suitable for her business purposes, except that the plaintiff parked her car in an area clearly marked to prevent visitor parking and dashed hurriedly across the lawn without taking note of her immediate surroundings. Likewise, the plaintiff in a hurry to reach her destination ran past the closest available entrance to her destination, which she had not noticed (Dobson v. State of Tennessee, 1999). According to the court, the plaintiff suffered severe injuries that resulted in her treatment at an area trauma unit (Dobson v. State of Tennessee, 1999). The plaintiff argued that the state’s placement of the metal strip in an unnoticeable location presented a latent hazard of which the state should have informed visitors (Dobson v. State of Tennessee, 1999). The court agreed with the commission, stating that the plaintiff had not used the lawn “in its ordinary use and that the path was not dangerous in terms of common experience” (Dobson v. State of Tennessee, 1999, p. 331). Moreover, the court found that

the state could not foresee that Ms. Dobson would park in a no parking zone and proceed across the lawn in a hurried manner with little regard for her own safety when the main entrance was the closest entrance to where she parked. (Dobson v. State of Tennessee, 1999, p. 331)

It is relatively clear that state courts have been reluctant to find universities negligent when dangers and/or harms have been unforeseeable. Furthermore, state courts have also been reluctant to allow recovery against colleges and universities when the plaintiff has behaved in an unforeseeable and negligent manner.

The one exception to these rules has been the state of Louisiana, which allowed recovery for negligence when a parent suffered a fall and injury after she partially blocked her own view while walking on the campus of a university (Carter v. Board of Supervisors of Louisiana State University, 1984). In Carter v. Board of Supervisors of Louisiana State University (1984), a Louisiana state court held in favor of a plaintiff injured on the campus of Louisiana State University, even nearly tripling the plaintiff’s damage award from the lower court. Like the plaintiffs in Florida, Indiana, and Ohio, the Louisiana case involved a plaintiff who was to some extent involved in her own injury (Carter v. Board of Supervisors of Louisiana State University, 1984). The plaintiff severely injured herself while walking on a defective sidewalk on the university’s campus while carrying items that might have blocked her view of the defective sidewalk (Carter v. Board of Supervisors of Louisiana State University, 1984). The plaintiff was on the campus to visit a campus museum as she accompanied an elementary school field trip (Carter v. Board of Supervisors of Louisiana State University, 1984). The plaintiff did not arrive to campus on the assigned school bus; instead, she arrived to campus in her own vehicle (Carter v. Board of Supervisors of Louisiana State University, 1984). According to the court in Carter v. Board of Supervisors of Louisiana State University, the plaintiff stored “an ice chest containing cartons of milk for the children’s lunch” in her private vehicle, and she began carrying this ice chest to the children immediately prior to her fall (Carter v. Board of Supervisors of Louisiana State University, 1984, p. 1265). Both the plaintiff and the university acknowledged the defective nature of the section of sidewalk at issue, but the opposing sides disputed whether the defective sidewalk constituted an unreasonable risk of harm (Carter v. Board of Supervisors of Louisiana State University, 1984).

The university argued that it should not be held liable because the plaintiff was “attempting to negotiate the sidewalk, carrying objects which obscured her vision,” a contention that the Louisiana state courts rejected (Carter v. Board of Supervisors of Louisiana State University, 1984, p. 1267). In the alternative, the Louisiana state courts accepted the plaintiff’s argument that her approach from the high side of the deformed sidewalk combined with the untimely placement of the sun contributed to the her inability to notice the gravity of the hazardous circumstances (Carter v. Board of Supervisors of Louisiana State University, 1984). The Louisiana state court did not engage in an analysis of the university’s obligation to monitor the campus’s sidewalks for suitability for visitors’ passage as the Tennessee, Indiana, and Florida courts had done in Hamby, Gilpin, and McCarthy, respectively (Carter v. Board of Supervisors of Louisiana State University, 1984). Likewise, the Louisiana state court failed to give substantial weight to the fact that the plaintiff engaged in perilous behaviors that contributed to her injuries as the Ohio and Tennessee courts had done in Thompson and Dobson, respectively (Carter v. Board of Supervisors of Louisiana State University, 1984). Although the Louisiana court ruled affirmatively in favor of the injured plaintiff, the Louisiana ruling is an anomaly. For instance, in a New York state court case, a court held that a college or university must have either actual or constructive notice to be held liable for negligence (Anderson v. Skidmore College, 2012). In particular, the New York court stated that constructive notice could only be granted when a defect was both visible and apparent while also existing for a sufficient length of time prior to the incident such that the defendant or the defendant’s representatives should have discovered and remedied the defect (Anderson v. Skidmore College, 2012).

State Court Negligence Decisions When the Plaintiff Is an Underage Student

Colleges and universities have found less sympathetic courts when the college or university is accused of negligence and the injured party is a minor. In Stanton v. University of Maine System (2001), the Supreme Court of Maine reversed a lower court’s summary judgment in favor of the university stating that the concentration of “young people, especially women, on a college campus, creates a favorable opportunity” for injury (p. 1050). The Stanton v. University of Maine System (2001) court spoke specifically concerning sexual assault, but the court’s language is easily transferable to other forms of negligence. In particular, the court wrote, “many of the students tend to be away from home for the first time and many not be fully conscious of the dangers that are present”; the court went on to express that the threat of harm was “self-evident” to the university (Stanton v. University of Maine System, 2001, p. 1050).

It is important to wade through the facts of Stanton v. University of Maine System (2001). The plaintiff was an underage (minor) college student-athlete on campus for a preseason training program; the training program occurred in the weeks leading up to the beginning of the fall semester. The minor student was assigned to reside in an on-campus residence hall during the training program (Stanton v. University of Maine System, 2001). During her stay on campus, the plaintiff attended a fraternity party where she met a stranger who agreed to walk the plaintiff to the dorm where she was residing during the training program (Stanton v. University of Maine System, 2001). Upon arrival to the dorm, the plaintiff entered the dormitory with her key and entered the building with the stranger, who rode the elevator with the plaintiff (Stanton v. University of Maine System, 2001). According to the facts in Stanton v. University of Maine System, the plaintiff entered into her room and propped the door open before moving toward a window in her room. The plaintiff realized that the stranger who had accompanied her to her dormitory and whom the plaintiff had allowed to enter the building had returned to her doorway; he entered the doorway and sexually assaulted the plaintiff (Stanton v. University of Maine System, 2001).

The Maine state court’s reasoning in Stanton v. University of Maine System (2001) provides guidance in analyzing the viability of an underage student’s negligence claim(s) against a college or university. Institutions of higher education owe students who are perceived by courts to be more vulnerable than other plaintiffs against institutions of higher education a higher duty of care (Stanton v. University of Maine System, 2001). In Stanton v. University of Maine System, the university took affirmative and noticeable steps to prevent the physical harm of its students. The state court mentioned that the school had no reported instances of sexual assault in the 5 years preceding the plaintiff’s reported sexual assault (Stanton v. University of Maine System, 2001). Moreover, the campus was equipped with numerous protective measures. In particular,

Students living in the dorms were provided with a key to the dorm entrance and to their rooms. Each dorm room was equipped with active telephone service to which students could connect their own phones. Both inside and outside the front entrance of [the dorms] were telephones that provided direct access to the University police 24-hour dispatch. When activated, the telephones tell the police dispatcher the location of the person using the phone even if the person using it is unable to speak. Each dorm had resident assistants (RAs) living in the dorms, and in 1997, there was one assigned to each of the six floors of [the dorm]. (Stanton v. University of Maine System, 2001, p. 1048)

The Maine court did not find the university’s efforts relevant to the analysis of the foreseeability of the harm encountered by the victim (Stanton v. University of Maine System, 2001). In fact, the court in Stanton v. University of Maine System (2001) distinguished the case of college students from the case of other business invitees. The Supreme Court of Maine used its decision in Brewer v. Roosevelt Motor Lodge (1972) as a contrasting case. In Brewer v. Roosevelt Motor Lodge, a motel occupant failed to utilize the safety precaution available, which resulted in a sexual assault by an intruder. The Brewer court held that the motel could not have foreseen or guarded against an injury caused by the plaintiff’s failure to activate the security devices provided by the motel, especially when the burglar-rapist’s actions were atypical and the actions were independently willful and furtive (Brewer v. Roosevelt Motor Lodge, 1972).

The court followed its discussion of Brewer with a discussion of Mullins v. Pine Manor College (1983), a Massachusetts negligence case pitting a female sexual assault victim against a college. The Stanton v. University of Maine System (2001) court mentioned that the Massachusetts court brought to bear the inexperience and unique vulnerabilities of college-age students before stating that institutions of higher education owe students a higher duty of care than other business and colleges and universities may owe their other business invitees: “We find the University owed a duty to reasonably warn and advise students of steps they could take to improve their personal safety” (Stanton v. University of Maine System, 2001, pp. 1049-1050). Post Stanton v. University of Maine System, there was controlling legal precedent in Maine and potentially persuasive legal precedent in other states mandating that colleges and universities not only provide safety devices to students but also take action to counsel students on methods to diminish their likelihood of victimization. The Stanton v. University of Maine System holding is of critical importance to higher institutions with dual enrollment programs as at least the Stanton court has made clear that the youth and inexperience of college-age victims is pertinent to the analysis of foreseeability in a negligence case.

Could School Districts Have Legal Liability for Student Injuries in Dual Enrollment Programs?

Dual enrollment programs differ from the circumstances of Stanton v. University of Maine System (2001) in fact pattern. The plaintiff in Stanton was a soon-to-be-enrolled college student who was also a minor (Stanton v. University of Maine System, 2001). Dual enrollment students are typically not awaiting traditional full-time enrollment on their dual enrollment campuses and are by definition concurrently enrolled as students in a school district’s primary or secondary schools. As such, dual enrollment students who are harmed on campus might also seek to file suit against their local school district. While individual states may have case law restricting and/or permitting certain causes of action against schools and/or school districts, at least one landmark case suggests that school districts might have some liability for a student injured on the campus of a college or university although the case’s controversy originated on a high school campus.

In Leger v. Stockton Unified School District (1988), a high school student suffered injury as a result of being attacked by a nonstudent on the campus of his high school. The injured student was in a school bathroom preparing for athletic team practice, and the bathroom was unsupervised (Leger v. Stockton Unified School District, 1988). The plaintiff argued that the district was negligent in its nonsupervision of an area of campus in that the lack of supervision made the area dangerous or potentially dangerous despite the fact that the bathroom would not typically have been seen as an inherently dangerous location on campus (Leger v. Stockton Unified School District, 1988). The California state court reversed the lower court’s dismissal of the plaintiff’s case stating that a student might be attacked in an unsupervised location is apparent, even if no prior attacks had occurred in the location (Leger v. Stockton Unified School District, 1988). The school district in Leger v. Stockton Unified School District provided many arguments purporting to excuse itself from owing a duty of care. In particular, the school district argued that it could not afford the liability for this specific form of student injury (Leger v. Stockton Unified School District, 1988). The court gave little discussion to this point and reasoned that the proper forum for complaints concerning finance is the state legislature (Leger v. Stockton Unified School District, 1988). It is reasonable, therefore, to assume that the school district may be liable for any harm incurred by dual enrollment students whom the school district fails to adequately protect. The school district should be on notice of the dangers to dually enrolled students provided the recent attention to injuries to traditional college students as well as similar injuries to visitors to college campuses.