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The Legal Risks of Study Abroad Nicole Ponticorvo Rutgers University

2 The Issues at Hand Most, if not all, colleges and universities advertise and market their study abroad opportunities to current undergraduates, prospective students, and their families. Considering the global nature of our economy and society, it is no wonder that international programs are increasing in popularity at American institutions of higher education. According to the Institution of International Educations Open Doors Report on International Educational Exchange (2012), 273,996 students studied abroad for credit during the academic year 2010/11, which is compared to 270,604 students that studied abroad the previous year. For institutions that create study abroad opportunities, the primary goal is for students to broaden their personal outlooks and increase their cultural competence by experiencing life outside of US boundaries and witnessing how other people live. This goal, however lofty, is arguably noble and necessary. There is growing recognition among educators and policy-makers that more U.S. students need to study abroad to be prepared for leadership roles in the global economy and an increasingly interconnected world (Friedheim, 2012, p. 5). As a result of this rather common viewpoint, [s]tudy abroad is increasingly viewed as an integral part of the academic experience (Friedheim, 2012, p. 6). Considering the growing popularity, increasing demand for study abroad programs, and recognized worth of study abroad programs, institutions strive to expand their foreign study opportunities (Hoye & Rhodes, 2000, p. 154). In doing so, institutions put themselves in jeopardy of the growing legal risks associated with sending students abroad. When institutions send their students to foreign countries to participate in study abroad programs, they may not be able to provide the same level of resources and support that they normally could domestically. Despite the fact that some institutions have made efforts to improve policies and procedures in the area of health and safety and study abroad. . . .many

3 institutions also lack appropriate policies, procedures, resources and staff abroad to adequately deal with these issues when they arise thousands of miles from the home campus (Hoye & Rhodes, 2000, p. 154). With less formalized safety nets in place, students may find themselves at greater personal risk while abroad. Students studying in countries where individuals do not speak their native language may be at a disadvantage when seeking services such as medical care. Without thorough knowledge of the area, students may also not know which neighborhoods are dangerous, and, therefore, they may live or travel in areas that put them at heightened risk for falling victim to both nonviolent and violent crimes. Depending on the stability of the region of the world in which a study abroad program takes place, students may also be in danger of political or social unrest that could result in violence and crime. Further, students seeking psychological care for mental health related issues might not have the adequate resources at their disposal while abroad. In a similar way, accommodations for students with disabilities abroad may likely not match the accommodations available for students at their home institutions. Given the aforementioned broad issues related to students engaging in international study programs, it is no wonder that student affairs and higher education professionals must carefully examine the risks associated with such programs for both the institution and student prior to putting students on a plane and sending them on their intercultural journey. For students, the risks associated with study abroad can be monumental in so far as falling victim to violent crime or even death are possible outcomes. For institutions of higher education, the risks are far less personal, but, nonetheless, significant in that colleges and universities run the risk of being held legally liable for the risks that study abroad programs pose to their students. Whenever institutional liability is in question, administrators at colleges and universities must pay careful attention. Student affairs professionals, specifically, must take this subject extremely seriously

4 because it is typically through their units that study abroad programs are created, promoted, and made into realities for students. In addition to these responsibilities, study abroad and international programs units are also responsible for regulating and monitoring foreign programs in order to help ensure the safety and security of students while abroad. These units must conduct site visits in order to assess the safety of any housing accommodations, security of surrounding communities, accessibility of psychological and physical health services, and availability of a program representative or interpreter for on-site support and advocacy. While it is impossible for an institution to completely eliminate risks for their students both at their home campuses and abroad, the question as to what extent colleges and universities are liable for the risks associated with study abroad programs remains. The institutions goal is always to, first and foremost, keep students safe, secure, and supported so that they can be successful academically and personally during their college careers. Considering the limited resources and remote locations of study abroad programs, it is often much more challenging to provide students with the support to which they are accustomed at their home institution. Although [f]oreign study programs are outstanding learning experiences. . . .[s]tudents in these programsare forced to rely to a greater extent upon the educational institution because of the geographic isolation from family and other familiar support systems (Evans, 1991, p. 305). As a result, a unique type of special relationship may form between institution and student studying abroad, which is based on the foreseeability of harm to a student and the educational institutions attempts to limit the possibility of such harm to its students (Evans, 1991, p. 303). In response to the risks associated with study abroad programs, colleges and universities assume a role that is more in keeping with the concept of in loco parentis than the average domestic college or university (Evans, 1991, p. 305).

5 Literature Review: Study Abroad Liability and its Impact on Campus Safety and Minimizing Risk College and university study abroad programs include certain inherent risks, including some that can result in severe student, faculty, or staff injury or death (Hoye & Rhodes, 2000, p. 166). Since safety is a salient concern when students embark upon a study abroad program, the institution must take an active role to minimize the risk to students and, in turn, avoid legal liability. Though there may be too few instances in which students studying abroad have been the targets of violence, crime, or terrorist activity to find that colleges or universities should foresee such an incident, a college or university may still have a duty to take proactive steps to enhance the safety of its students (Evans, 1991, pp. 303-304). Further, colleges and universities may have an increased duty of care when it comes to students studying abroad (Evans, 1991, p. 303). In managing the risk and potential liability of study abroad programs, institutions must be careful not to overemphasize the risk to students safety as an illusory quest for risk-free education (Johnson, 2006, p. 315). The goal is not to completely eliminate risk in the study abroad experience; however, [e]xposing students to some of those risks is part of the educational process (Johnson, 2006, p. 316). American program providers should not strive to make a foreign educational experience the same as studying in the United States, but should simply take reasonable precautions to minimize the foreseeable risks of harm to program participants (Johnson, 2006, p. 317). Institutions can take various steps to minimize risks in study abroad programs both prior to a students departure and during a students study abroad experience. For instance, student affairs professionals involved in the pre-departure process can provide students and families with accurate and thorough information regarding the program so that they can make informed

6 decisions as to whether or not a given program poses a level of risk that is acceptable (Johnson, 2006, p. 317). On a more practical level, study abroad programs can promote safety by implementing programmatic practices that minimize the probability of unnecessary harm (Johnson, 2006, p. 317). When minimizing risks inherent to study abroad programs, institutions must examine the difference between risks inherent to any foreign study program, like risks associated with program facilities, and special risks that are not directly associated with the program and educational endeavors, such as risks that involve recreational, extra-curricular activities or travel excursions (Johnson, 2006, pp. 315-316). Study Abroad Liability At the same time that institutions and program providers strive to minimize risk, legal issues and lawsuits are inevitable components of international programs. To further complicate the issue, [t]he liability issues relevant to study abroad programs are as broad as the expansive field of torts (Johnson, 2006, p. 317). Liability issues in study abroad can range from premises liability to various forms of negligence, including negligent infliction of emotional distress, misrepresentation, and security (Johnson, 2006, pp. 317-318). Additionally, students and their families have sued colleges and universities for: negligent supervision of medial care; breach of fiduciary duty; discrimination based on disabilities; negligence related to injuries, abandonment in medical facilities, and sexual assault; and failure to respond (Johnson, 2006, pp. 312-313). Because of the tendency of tort cases to be settled, rather than fully tried, the number of unreported cases based on harm to students participating in study abroad programs may be considerably larger than what appears in legal research databases (Johnson, 2006, p. 314). The types of liability associated with study abroad programs include fault, respondeat superior, nondelegable duty, and ostensible agency (Johnson, 2006, p. 332). Fault-based liability

7 can encompass negligent hiring, training, supervision of staff, discipline of students, and a failure to protect students from hazards on a foreign premises over which the program exercises control, such as a classroom space (Johnson, 2006, p. 333). Respondeat superior-based liability may include liability for any torts of program employees that are committed while they work for the study abroad program, such as a car accident that occurs while the program takes students on a walking tour of town (Johnson, 2006, p. 334). For torts related to agents who are independent of the study abroad program like a company hired to transport a handicapped student, nondelegable duty-based liability can apply (Johnson, 2006, p. 336). Finally, ostensible agencybased liability refers to torts of a person that is not an agent or employee of the study abroad program, such as a visiting professor who leads students on a trip where an accident occurs and injuries are suffered (Johnson, 2006, p. 340). Since the dangers faced by U.S. college students who study abroad are as real and can be as grave as the legal liability risks faced by the institutions that sponsor and operate their programs (Hoye & Rhodes, 2000, p. 154), institutions must be aware of the very real legal risks that face them when they enroll their students in international study programs. As the degree to which an institution oversees and controls a study abroad program increases, so does the potential legal liability for the institution (Hoye & Rhodes, 2000, p. 155). A college or universitys relationship with a study abroad program can be defined as one of the following: (1) university owned/operated programs; (2) contractual programs; (3) permissive programs; and (4) hybrid programs (Hoye & Rhodes, 2000, p. 155). University owned and operated programs virtually serve as extensions of the home campus in that the institution employs staff abroad and manages program facilities (Hoye & Rhodes, 2000, p. 156). Contractual programs entail a cooperative arrangement or an agreement (written or verbal) that links the home

8 institution with another universitys program or independent foreign study organization (Hoye & Rhodes, 2000, p. 156). In contrast to university owned/operated and contractual programs, permissive programs refer to institutions that merely allow their students to participate in programs that are owned and operated by other institutions with which the home campus has no formal legal relationship and no agreement (Hoye & Rhodes, 2000, p. 157). Furthermore, many institutions have hybrid programs, which encompass characteristics of all of the aforementioned program types (Hoye & Rhodes, 2000, p. 157). Students can also take leave from their home institution and enroll in a foreign school, in which case lawyers typically say all the risk transfers to the foreign institution (Van Der Werf, 2007). Additionally, students may take international trips with a faculty member, sometimes not for credit, and complications may occur if the institution is not made aware of such trips (Van Der Werf, 2007). Given the complexity of study abroad program models, an institutions initial step toward fully comprehending potential legal risks is to understand the relationship the home campus enjoys with each program (Hoye & Rhodes, 2000, p. 157-158). For administrators of both the home institution and study abroad program, it is vital to have adequate on-site support to maintain a successful program with minimal foreseeable risk. If the administrative staff is inexperienced, under-resourced, or not motivated, it is likely that at least some of the issues relating to program participant safety may not be given the attention they deserve (Johnson, 2006, p. 360). Considering the growing risks of study abroad, international education programs must now be operated with due regard for the legal principles that impose a general duty of reasonable care, that punish misrepresentation, and that award compensation for injuries attributable to blameworthy conduct (Johnson, 2006, p. 361). The goal of foreign study programs must be to eliminate foreseeable harm so that students can return to their home

9 institutions enriched by their coursework and cultural experiences and ready to assume the role of well-educated world citizens (Johnson, 2006, p. 361). Program and Student Preparation Study abroad programs must be well prepared to both support students safety and wellbeing and minimize risk for the institution and program providers. University operated programs prepare by establishing appropriate contact with the US embassy, ensuring visa compliance by students, and providing students with the necessary release forms to protect the institution from legal liability and give adequate notice to students and families of the potential risks associated with international study (Scharman, 2002, p. 71). It is imperative that programs have adequate oversight by coordinators, advisers, legal counsel, deans of students, health and counseling directors and risk management representatives (Scharman, 2002, p. 69). In conjunction with institutional support and oversight of international programs, on-site staff and individuals affiliated with program activities must be properly trained. For instance, [i]t is important to be very clear about specific requirements for host families, tour guides, local faculty, and all others who play a significant role during the study abroad experience (Scharman, 2002, p. 71). Furthermore, a well-trained and well-equipped on-site adviser or faculty member can help ensure the social and psychological safety of the programs students (Scharman, 2002, p. 72). In addition to properly training and monitoring on-site program staff, institutions must ensure that students and families considering foreign-study are provided with complete and accurate information regarding the program, its location, and the surrounding region. Getting accurate, current information to students and parents in advance of the final decision-making process and using a variety of methods for disseminating that information (written brochures,

10 Internet sites, orientation meetings with faculty advisers) can help everyone make a best fit choice for the programs they are considering (Scharman, 2002, p. 72). Since [p]arents may sometimes assume that their children will have greater oversight while studying abroad than they would at a stateside university (Scharman, 2002, p. 72), institutions must produce clear program information, agreements, and waivers that detail the extent to which the university will be responsible for the students daily activities and any potential risks. Much of the responsibility to prepare students for their study abroad experience falls on the institution. Institutions must keep students up to date on any travel advisories or unique situations that could affect them as they travel (Scharman, 2002, p. 71). Students and families must be made aware of potential health hazards or risks associated with the country in which they will study; therefore, institutions must openly share that information with applicants and their parents, and advise on required or recommended immunizations, boosters, or vaccinations (Scharman, 2002, p. 75). Beyond health risks, students must be educated on societal issues that may impact the way Americans are viewed and treated in a given country of study (Scharman, 2002, p. 72). To adequately prepare students for foreign travel [t]he university must orient students to political sensitivities, legal issues, and even local routines (Scharman, 2002, p. 72). Since safety and security is of paramount concern for study abroad programs, institutions must place a significant emphasis on the health and wellbeing of their students. Prior to departure, programs may choose to do a health assessment to ensure that the students are physically able to participate in all aspects of the program (Scharman, 2002, p. 74). In doing so, institutions must consult with legal counsel because, [d]epending on the circumstances, it will be important to assess how much advance health information is needed, the ability of the university to keep that information confidential overseas, and if any information requested is in

11 conflict with the Americans With Disabilities Act (Scharman, 2002, p. 74). In addition to engaging in pre-departure health assessments, institutions must be prepared to help students seek proper medical care while abroad, which may be difficult in certain regions of the world due to the availability of adequate health services. Given that health support facilities may not be as readily available in some parts of the world, and medications may be either more difficult to obtain or come in different dosages than are routinely available in the United States (Scharman, 2002, p. 74), it is important that programs establish to get students adequate medical treatment. In a similar vein, programs must be able to readily deal with crisis situations that can impact their students; therefore, the institution should have crisis management policies and procedures so that staff can respond quickly and effectively to a variety of emergencies (Scharman, 2002, p. 74). While [n]ot every negative possibility can be anticipated. . . a number of considerations can increase the likelihood of a safe, enjoyable, and successful experience for students as they engage in foreign study travel (Scharman, 2002, p. 69). In order to engage in a safe time abroad and minimize potential risk factors, students must be able to exercise sound judgment and emotionally prepared to navigate their international journey (Scharman, 2002, p. 71). Some students still underestimate the magnitude of adjustments required during an extended period of time away from home: exposure to a new culture, new customs, climate, monetary system, routines, food, living arrangements, and roommatesall in the absence of familiar support systems (Scharman, 2002, p. 71). Without students normal support systems, students must rely on the on-site program administrators to help them deal with medical, emotional, and psychological difficulties. The study abroad experience can be as risky as it is enriching for students. Students should be encouraged to expand their circle of friends [beyond other

12 Americans] while maintaining an element of personal privacy, avoiding risky relationships or opening temporary homes to strangers (Scharman, 2002, p. 72). Given the value of international study for college students, institutions have been increasingly placing more emphasis on their study abroad programs, but potential risks still remain at the forefront. As colleges and universities seek to increase and expand their global opportunities for students through international study programs, institutions must be consistent in designating resources to reduce the risk for students by providing adequate support services for students studying overseas (Hoye & Rhodes, 2000, p. 154-155). Colleges and universities that view study abroad programs as an integral extension of their academic offerings and mission should take the time and extend the resources necessary to ensure that their program policies and procedures are legally sound and reasonably safe, in order to best support their students, faculty, and staff while reducing their potential liability (Hoye & Rhodes, 2000, p. 166). Court Cases on the Legal Risks of Study Abroad Programs Looking at the court cases regarding study abroad program liability, legal claims against the institution have ranged from negligence to discrimination based on sex and disability status. Although there are very few reported cases where students have sued their college or university for events which occurred during their study abroad program (Burch, 2010, p. 11), [t]here is a growing movement to hold universities liable for the safety of their students studying overseas (Rising Fear of Lawsuits, 1998, p. 12). Additionally, with U.S. disability laws gaining more prominence, students and their families have tried to hold institutions liable for discrimination and failure to provide the appropriate accommodations that they have come to expect at their home institutions. As more students study abroad in a wide variety of countries in risky parts of the world (Boorstein & Wright, 1998, p. 12), it is no wonder that questions over safety and

13 institutional liability are on the rise. Nonetheless, the two primary tort claims against institutions that involve study abroad programs include negligence and the institutions duty to protect the student from acts of third parties (Burch, 2010, p. 3). Legal Issue of Negligence & the Institutions Duty of Care One of the most salient issues facing institutions that send their students on study abroad involves negligence. When things go wrong on study abroad and students do fall victim to violence or injury, institutions can be held liable if a level of foreseeability can be proven. Foreseeabilty of harm is the single most important concept in the law of negligence; [however], [a]bsent foreseeability of injury, there is no liability for failure to exercise care (Johnson, 2006, p. 343). An institution may be negligent when it fails to disclose certain risks that the program provider knows and that students are unlikely to discover (Johnson, 2006, p. 341). For example, if the director of a foreign program knows that in recent years students have been harassed or molested while walking in a certain area near the programs dormitories, reasonable care may require disclosure of that information (Johnson, 2006, pp. 341-342). In this sense, institutions run the risk of being sued for negligent misrepresentation based on their portrayal of the safety of a program facility or the surrounding community; therefore, program representatives should never portray a foreign location as safer than they know it to be (Johnson, 2006, p. 358). Certain risks are too vague to warrant negligence, such as [t]he mere fact that Americans traveling abroad might be harmed somewhere in the world (Johnson, 2006, p. 344). For an institution to be found responsible in a negligence claim, the student must establish that the educational institution owed the student a duty of care, that the educational institution breached this duty of care, that the educational institutions breach of its duty of care was the proximate cause of the students injury, and that the student has suffered injury or

14 damages (Burch, 2010, p. 4). For instance, if a program provider is aware of a more specific risk, such as notice of serious danger to a limited class of persons (Johnson, 2006, p. 344), then the institution may have a duty to warn students and their families. [D]uties that do not otherwise exist may be assumed when [program] providers undertake or promise to undertake certain activities, such as providing transportation to students (Johnson, 2006, p. 353-354). Any situation in which the institution may face negligence liability due to a possibly breach in its duty of care begs the question: Where does one draw the line between individual judgment and institutional responsibility? (Gumbel, 2011, p. A26). University of Minnesota v. Bloss. University of Minnesota v. Bloss (1999) brings the issue of negligence into the courts. In Bloss, Adrienne Bloss sued the University of Minnesota for negligence, seeking recovery for injuries she sustained when she was sexually assaulted by taxi cab driver during her participation in university-sponsored study abroad program in Mexico. Bloss negligence claim was for failure to secure housing closer to the Cemanahuac campus, failure to provide transportation to and from campus, failure to adequately warn about risks, and failure to protect from foreseeable harm (University of Minnesota v. Bloss, 1999). As a cultural immersion program, the institution argued that it designed the study abroad program in such a way that challenged students to navigate the country on their own through public transportation in order to help enhance their educational experience (University of Minnesota v. Bloss, 1999). In contrast, [p]roviding transportation to individual students in a foreign country for educational classes and recreational activities would involve substantial costs and create a structure contrary to the specific educational goals of cultural immersion (University of Minnesota v. Bloss, 1999). Since it was established that the institution gave students proper warning of the risks to their safety through

15 program materials, the release form and program orientation (University of Minnesota v. Bloss, 1999). During orientation, the student was warned that it was dangerous for women to go out alone at night, that she should call for a taxi at night rather than hail a taxi on the streset, and that women should never sit in the front seat of taxis (University of Minnesota v. Bloss, 1999). The court ruled that the University of Minnesota was entitled to statutory immunity in the exercise of its discretionary decision to create a cultural immersion program that placed students in host homes, relied on available public transportation, and provided a variety of student warnings and information (University of Minnesota v. Bloss, 1999). This case illustrates the importance of properly providing warning of risks to students in order for the institution and program provider to avoid legal liability. McNeil v. Wagner College. In a similar fashion, McNeil v. Wagner College (1998) brings up the issue of negligence and duty of care, specifically with regards to negligent supervision. Eileen McNeil sued her college alleging that she sustained permanent injuries as a result of colleges negligent supervision of medical care following accident, based on administrators alleged assumption of duty to act as interpreter while she studied abroad in Austria (McNeil v. Wagner College, 1998). The student claimed to have suffered nerve damage because of the program administrators failure to inform her of the treating physicians recommendation that she undergo immediate surgery after she broke her ankle in a slip and fall accident. Further, the student claimed that the program administrator voluntarily assumed a duty of care by acting as her interpreter at the hospital and that his breach of that duty placed her in a more vulnerable position than she would have been otherwise (McNeil v. Wagner College, 1998). In McNeil, the court ultimately determined that the program administrator was not obligated to supervise the

16 students medical care after her accident (McNeil v. Wagner College, 1998). Given the students failure to prove that the program administrator had agreed to assume the responsibility of acting as her interpreter and evidence that the physician spoke English, the students claim did not hold much weight in court (McNeil v. Wagner College, 1998). From this case, it is vital that the institution be clear in its intended role in assisting students undergoing any medical treatment. Fay v. Thiel College. In Fay v. Thiel College (2001), Amy Fay was brought to a medical clinic when she fell ill during a study abroad trip to Peru that was sponsored by the institution and supervised by three faculty members. After being admitted into a medical clinic, the student, who was not fluent in Spanish, was left alone as the faculty supervisors and the other students continued their journey on a scheduled trip (Fay v. Thiel College, 2001). During her time in the clinic, the student was subjected to the unnecessary removal of her appendix and sexually assaulted by the same surgeon who had performed the surgery and the same anesthesiologist who had administered the anesthesiaboth of whom were men (Fay v. Thiel College, 2001). While the institution had students sign waiver of liability and consent forms in order to absolve itself of any liability, the courts find that the subject waiver of liability form is a contract of adhesion because students had no other viable options beyond signing or not participating in the program (Fay v. Thiel College, 2001). Additionally, the Thiel College consent form does not release the institution from any liability stemming from any medical decisions that one or more of the faculty supervisors made on behalf of, or in conjunction with, a student while participating in the Thielsponsored study abroad trip to Peru; therefore, this form does not provide a waiver of liability (Fay v. Thiel College, 2001). In Fay, the court concludes as a matter of law that Thiel College did owe [Fay] a special duty of care as a result of the special relationship that arose between

17 Thiel College and [Fay] pursuant to the consent form that she was required to execute prior to participating in the Thiel-sponsored trip to Peru. The questions as to whether or not the institution breached its duty of care to Fay and whether or not a faculty supervisors absence in the medical clinic increased Fays risk of unnecessary surgery and sexual assault were left for the jury to decide (Fay v. Thiel College, 2001). This case shows the limitations of liability waivers, as well as the institutions potential duty of care. Paneno v. Centres for Academic Programmes Abroad, Ltd. Although [t]here are no reported cases in which a U.S. court has addressed a college or universitys duty to provide students its study abroad program with safe housing (Burch, 2010, p. 14), Paneno v. Centres for Academic Programmes Abroad, Ltd. (2004) involves a lawsuit claiming premises liability and negligence. Rocky Paneno filed a lawsuit against the Centres for Academic Programmes Abroad (CAPA) for injuries sustained while he studied abroad in Italy when Paneno fell from his six-story balcony after the railing gave way, leaving him paralyzed (Paneno v. Centres for Academic Programmes Abroad, Ltd., 2004; Burch, 2010, p. 14). CAPAUSA and CAPA-UK are giving courts the runaround by each claiming that it was the others responsibility to make housing accommodations for students (Paneno v. Centres for Academic Programmes Abroad, Ltd., 2004). The court denied CAPAs motion to qualsh and determined that Paneno can appeal (Paneno v. Centres for Academic Programmes Abroad, Ltd., 2004). When Panenos claim does go to court, the courts will likely find that there is a special relationship between the educational institution and the student which creates a duty for the educational institution to exercise reasonable care in choosing and maintaining safe housing for students participating in its study abroad program (Burch, 2004, p. 14). Once again, the institutions duty of care is an extremely important concern for the institution.

18 Legal Issue of Discrimination in Study Abroad King v. Eastern Michigan University. In King v. Eastern Michigan University (2002), the issue of sex discrimination in study abroad is brought to the forefront of the courts. While studying abroad in South Africa, Kiersten King and five other female students claim to have been sexually harassed by some of their male peers; they are now suing the institution claiming that they were discriminated against in educational program receiving federal assistance when fellow male students sexually harassed them, and supervisors were indifferent to their complaints (King v. Eastern Michigan University, 2002). King and the other five female students claim that the male defendants repeatedly harassed them by called them offensive names and offering them for sale to South African men at a night club (King v. Eastern Michigan University, 2002). When King and the other female students went to the program director to report the harassment, they were referred to his assistant, Williams, who was one of the alleged harassers (King v. Eastern Michigan University, 2002). King presents the question as to whether the US Department of Educations Office of Civil Rights Title IX statute against sex discrimination has extraterritorial application beyond US borders (King v. Eastern Michigan University, 2002). In King, it is determined that study abroad programs are operations of the University which are explicitly covered by Title IX and which necessarily require students to leave U.S. territory in order to pursue their education. Congress seeks to ensure that every educational program should come within Title IXs protections against discrimination (King v. Eastern Michigan University, 2002). By dismissing the defendants motion to dismiss the plaintiffs Title IX claim of sex discrimination, the court upholds that [e]quality of opportunity in student abroad programs,

19 unquestionably mandated by Title IX, requires extraterritorial application of Title IX (King v. Eastern Michigan University, 2002). Bird v. Lewis & Clark College. Bird v. Lewis & Clark College (2002) presents the legal issues of discrimination on the basis of disability and fiduciary duty. Arwen Bird sued the institution, alleging that college violated Rehabilitation Act and Title III of Americans with Disabilities (ADA) and fiduciary duties by failing to reasonably accommodate her disabilities during overseas program (Bird v. Lewis & Clark College, 2002). In Bird, the student also sued for defamation, negligence, fraud, negligent misrepresentation, and intentional infliction of emotional distress. When Bird was confined to a wheelchair after being injured in a car accident, the institution made many accommodations for Bird including improving wheelchair accessibility of campus, installing ramps in her residence hall, remodeling bathrooms, and reconfiguring laboratories (Bird v. Lewis & Clark College, 2002). As she prepared to study abroad, Bird spoke with the overseas programs director and was assured that the program would be able to accommodate her disability and that she would only be limited from certain activities (Bird v. Lewis & Clark College, 2002). Despite these assurances, Bird found that many of her housing accommodations, other program facilities, and transportation arrangements were not fully wheelchair accessible (Bird v. Lewis & Clark College, 2002). Because failure to provide wheelchair access does not automatically establish liability under the Rehab Act, the jury was not required to find against the College even though some aspects of the program were not fully wheelchair-accessible (Bird v. Lewis & Clark College, 2002). In addition to the accommodations that the program did provide, evidence in the record indicates that Bird enjoyed many of the benefits offered by the program (Bird v. Lewis & Clark College, 2002).

20 While evidence of certain accommodations such as two helpers and special transportation caused the court to rule in favor of the institution in denying Bird any remedy under section 504 or Title III of ADA (Kanter, 2003, p. 11), Birds fiduciary duty claim will go to a jury (Bird v. Lewis & Clark College, 2002). Since [t]he College assured Bird on a number of occasions that the overseas program would accommodate her disability, she had reason to trust [the program directors] assurances given that, in the past, the college had gone considerable lengths to accommodate her disability at her home campus (Bird v. Lewis & Clark College, 2002). Further, there was evidence that the institution assured Bird and her parents that the company handling travel arrangements and director of program commonly handle people both in the field and in home stays that are more physically challenged than [Bird] and that adequate facilities would be available in most of the outdoor trips (Bird v. Lewis & Clark College, 2002). As a result, in Bird, the court determined that a special relationship developed between Bird and the institution. Ultimately, [t]he Court of Appeals for the Ninth Circuit upheld the district courts decision granting [Bird] a remedy on a breach of contract (Kanter, 2003, p. 11) in that the college breached its fiduciary duty to the student, based upon the assurances and representations that the college had made to the student and her parents (Kaplin & Lee, 2009, p. 438). In Bird, the issue of extraterritoriality arose with regards to the application of discrimination laws outside of the United States. Although the courts did not rule on the issue of extraterritoriality, [t]he college argued that neither Section 504 nor Title III of ADA had extraterritorial application (Kaplin & Lee, 2009, p. 438). The literature surrounding extraterritoriality in study abroad litigation highlights the importance of applying discrimination laws to students studying abroad. Limiting the application of our nations disability discrimination laws to student studying only on campuses within the United States, but not while

21 they are studying under the same sponsoring universitys auspices abroad, violates the intent as well as the language an legislative history of the ADA and section 504 (Kanter, 2003, p. 13). When students who are eligible for disability accommodations study abroad with programs that are run by or under contract with an American university, in which they pay to receive academic credit towards an American degree from an American university, then the presumption of extraterritoriality should not provide an excuse for American universities to ignore their obligations to provide accommodations for their students with disabilities, and the university may be found in violation of American discrimination laws, such as ADA and Section 504 (Kanter, 2003, pp. 17-18). Bird teaches institutions and international program providers a lesson in that they should exercise considerable caution in the statements they make about being able to accommodate students with disabilities in order to avoid being at an increased risk of liability both for breach of fiduciary duty and misrepresentation (Johnson, 2006, p. 360). When a student studies abroad with a program that is not run by or under contract with an American institution, the college or university may not be held to the same standard of accommodating students with disabilities. The US Department of Educations Office of Civil Rights rule that Arizona State University could deny interpreter services to a student who sought to attend an overseas program at an Irish university citing that Title II of the ADA and section 504 of the Rehabilitation Act do not apply extraterritorially when a contract does not exist between the American and foreign institutions (Kanter, 2003, p. 11). In another case involving the issue of extraterritoriality, the OCR held that [St. Scholastica, a private college in Minnesota], was obligated under the Rehabilitation Act to pay for interpreter services to accompany a deaf student on her study abroad program in Ireland, which the student had received at her home institution (Kanter, 2003, p. 12). Depending on the regional office of the

22 OCR that handles a given disability discrimination claim and the presence or lack of a legal relationship between the program provider and institution, the institution may or may not be mandated to accommodate students with disabilities overseas. Settled Cases without Court Opinions Extraterritoriality also arose in lawsuit raised by Erika Eisenberg against Earlham College in which she alleged that while on the college study abroad programme in Japan she had been sexually harassed and raped by her host father, that the college had been negligent in the matter of the alleged rape and sexual harassment and that it had violated US Title IX laws against sexual harassment (Birtwistle, 2002, p. 236). After the Title IX action was dismissed ruling that the law did not apply to extraterritorial events, the rest of the litigation was settled outside of the courts (Birtwistle, 2002, p. 236). This case also brings up the question as to the degree to which an institutions waiver is effective in protecting the institution against liability. Earlham, like many other colleges with study-abroad programs, has students sign a waiver absolving the college of responsibility in case of injury (Guernsey, 1997, p. A37). Since this case was never tried by court, it is impossible to determine whether or not the waiver would have released the institution from legal liability. The duty to warn is prevalent in three lawsuits against St. Marys College, the University of New Mexico, and Antioch University. In the case against St. Marys College, five students were raped in Guatemala after their bus was ambushed by armed gunmen while they were participating in a 17-day long study abroad program. This lawsuit, which was ultimately settled, seems to highlight the question of a universitys duty, if any, to warn or inform its students, faculty and staff of the risks associated with traveling or living in the particular countries where they will be studying or teachingespecially when there are U.S. State Department warnings for

23 the venue available not only to the university but to the general public (Hoye, 1999, p. 4). The other lawsuit against the University of New Mexico involves a gang of armed banditos that were posing as drug enforcement agents who took the students, their professor and the professors wife off of the bus and robbed them of their money and passports and killed the professors wife with a stray bullet (Hoye, 1999, p. 4). Once again, this tragedy illustrates the question of the institutions duty to warn, since the institution had received consular information warning of highway robberies and recommending against travel after sunset, which is when the incident took place (Hoye, 1999, p. 4). In another complaint, filed by Stephanie Slattery against Antioch Education Abroad and Antioch University, the student was assaulted and raped by a bus driver hired by the program when he invited her for tea in his room in Mali (Complaint, 2009, p. 2). After the student was treated and returned to program, the student argues that the program warned students for the first time to never be alone with a male in his room because in Malian culture it is considered to be implied consent to have sexual intercourse (Complaint, 2009, pp. 2-3). The student sued the program and university on the counts of negligent hiring and supervision of the bus driver and negligence in not warning students of the cultural implication of being alone in a mans room (Complaint, 2009, pp. 3-5). As evident in each of these lawsuits, institutions and study abroad program providers must be extremely diligent and consistent in warning students of potential risks in order to avoid foreseeable harm. Implications While the concept of in loco parentis, that bestows a parental role on the institution in exerting authority, control, and protection over students (Kaplin & Lee, 2009, p. 8) no longer bears weight in the higher education setting, colleges and universities are not completely off the hook when it comes to students safety. Although the courts have rejected claims that a college

24 that sponsors a study abroad program is the insurer of students safety, the courts are imposing a duty of reasonable care on colleges that requires them to take steps to protect students, faculty, and staff from reasonably foreseeable harm especially if the program exists in a region that has been identified as unsafe or prone to criminal activity (Kaplin & Lee, 2009, pp. 119-120). When institutions do not take adequate steps to reasonably protect students, faculty, and staff by warning of potential risks, they run the risk of legal liability. The institutions goal must be to provide students with a safe, educational, and enriching study abroad experience that consequently minimizes risk for institutional liability. Student affairs professionals have the duty to protect students from foreseeable harm both domestically and abroad as students take advantage of all of the various opportunities during their educational experience. As students consider study abroad programs, student affairs professionals must strive to provide students with accurate information regardingprograms that the institution runs or with which the institution has a contractual relationship. The professionals that will typically interact with students regarding study abroad programs are study abroad and international programs office staff that promote programs and faculty members that lead their own international excursions for students. These individuals, in particular, must divulge information regarding living conditions, travel arrangements, medical and psychological support and resources, and any safety concerns or consular warnings about violence and crime in neighborhoods inhabited by students. This information should be clearly published in program materials, communicated to students in pre-departure meetings, provided to students families, and reiterated to students during orientation. Most importantly, student affairs professionals and faculty members should not make any promises to students regarding safety or accessibility for disabled students of any study abroad programs that they cannot keep and back up with factual information.

25 Another way in which student affairs professionals must protect students from foreseeable harm is by ensuring that study abroad sites, program facilities, housing accommodations, and travel arrangements are as free from foreseeable risk as possible. In order to do so, professionals can conduct regular site visits to meet with program staff and tour facilities. Further, [p]eriodic assessments of foreign-study programs help to insure the students safety and to limit liability of the college or university (Evans, 1982, p. 314). These assessments can help student affairs professionals determine which programs need improvements in order to better meet the needs of students and keep students, faculty, and staff safe. Considering the political and social unrest that exists in many nations across the world, it is critical that student affairs professionals involved in promoting study abroad programs keep themselves abreast of any governmental information and warnings regarding the safety of any given location where the institution sends students. It is vitally important for college and university administrators to reevaluate continually the safety of foreign-study programs in light of the constantly changing world situation (Evans, 1982, p. 314). Student affairs professionals must also work to ensure that students can receive proper medical, psychological, and emotional support, services, and resources while abroad. This may be a difficult task given the various levels of development in regions where students study abroad; however, it is vital that institutions leave students with adequate access to these types of support systems when they are away from the home campus. Well-trained student affairs professionals must also be employed to run study abroad programs and serve as on-site resources for students in crisis. Just as study abroad can be a very fulfilling and invigorating time for college students, it can also be scary, challenging, and stressful. Living in a completely foreign culture without familiar support systems such as friends and family can be extremely

26 challenging. Student affairs professionals must do their best to ensure that students have the resources at their disposal to deal with the difficulties they may face as foreigners. Finally, as students enter college and begin thinking about study abroad opportunities, student affairs professionals have the charge of educating them about the potential benefits and risks associated with international study programs. Student affairs professionals must help students fully understand the magnitude of a study abroad experience from the emotional challenges to the potential safety risks. In order to have a successful study abroad experience, students must be fully aware of what to expect and how to protect themselves while overseas. Often times, [s]tudents can suddenly be confronted by dangers that are far greater and far less predictable than the ones universities are used to tackling (Gumbel, 2011, p. A26). Some college students tend to think they live in the university bubble in which they are free from harm even if they make poor decisions like walking home alone at night or going home with a stranger. While this false sense of security plagues many college students on their home campuses, it is likely even more dangerous for students with this mindset to travel abroad, where individuals may not treat them as kindly. While a university bubble may exist, to a certain extent, on their home campuses, it surely does not exist in remote parts of the world. Without proper education and preparedness with regards to personal safety, students may put themselves drastically at risk while abroad. While student affairs professionals can help to educate students on how to make sound behavioral choices abroad, the responsibility does not only fall on the professional; it falls on the student as well. In addition to protecting students from foreseeable harm, providing accurate predeparture information to students, student affairs professionals, therefore, must empower students to take responsibility for their own safety and security while abroad.

27 References Bird v. Lewis & Clark College, 303 F.3d 1015 (2002). Birtwistle, T. (2002). Liability and risk assessment in student activity abroadThe UKCOSA survey. Education and The Law, 14(4), 231-252. Bloss v. University of Minnesota Bd. Of Regents, 590 N.W.2d 661 (1999). Boorstein, M. & Wright, S. W. (1998). Fears about safetyand lawsuitsplague study abroad. Community College Week, 10(15), 12-13. Burch, K. M. (2010). Going global: Managing liability in international externship programs A case study. Journal of College and University Law. 36(2), 1-50. Complaint at pp. 1-5. Slatterly v. Antioch Education Abroad, No.2:09-cv-00828 (U.S. District Court, Southern District of Ohio, Western division, 2009). Retrieved from http://www.courthousenews.com/2009/09/21/Antioch.pdf Evans, R. B. (1991). A stranger in a strange land: Responsibility and liability for students enrolled in foreign-study programs. Journal of College and University Law, 18(2), 300314. Fay v. Thiel College, 2001 WL 1910037 (Pa.Com.Pl.), 55 Pa. D. & C.4th 353 (2001). Freidheim, S. J. (2012). Valuing study abroad: The global mandate for higher education: An IIE briefing paper based on remarks at the British Academy International Conference. Institute of International Education. p. 1-17. Retrieved from http://www.iie.org/Research-and-Publications/Publications-and-Reports/IIEBookstore/Valuing-Study-Abroad Guernsey, L. (1997). Suit raises questions about liability in study-abroad programs: Earlham

28 student says she was raped by a man in whose Tokyo home the college had placed her. The Chronicle of Higher Education, 43(31), A37-A38. Gumbel, P. (2011). Life is risky, and so is studying abroad. Chronicle of Higher Education, 57(33), A26. Hoye, W. P, & Rhodes, G. M. (2000). An ounce of prevention is worthThe life of a student: Reducing risk in international programs. Journal of College and University Law, 27(1), 151-185 Johnson, V. R. (2006). Americans abroad: International educational programs and tort liability, Journal of College and University Law, 32(2), 309-362. Kanter, A. S. (2003). The presumption against extraterritoriality as applied to disability discrimination laws: Where does it leave students with disabilities studying abroad? Stanford Law and Policy Review. 14(1), 1-41. Kaplin, W. A, & Lee, B. A. (2009). A legal guide for student affairs professionals (2nd ed.). San Francisco, CA: Jossey-Bass. McNeil v. Wagner College, 246 A.D.2d 516, 667 N.Y.S.2d 397 (1998). Open doors report on international educational exchange (2012). Institute of International Education. Retreived from http://www.iie.org/Research-and-Publications/Open-Doors Paneno v. Centres for Academic Programmes Abroad, LTD., 118 Cal.App.4th 1447, 13 Cal.Rptr.3d 759 (2004). Rising fear of lawsuits is threatening programs of study abroad. (1998, January 21). New York Times, p. 12. Scharman, J. S. (2002). The extended campusSafety abroad. New Directions for Student Services, (99), 69-76.

29 Van Der Werf, M. (2007). Riskier business. The Chronicle of Higher Education, 53(30), A1A32.