Foreign Students: Do Universities Owe Them Extra Care?

The concept of duty of care is a legal one, wherein certain entities are expected to prioritise the safety of those in their care. While this is usually applied to parents and their children, it can also be applied to universities and their students. Historically, universities were seen as standing in loco parentis, or in the place of the parent, and were expected to look after the welfare and safety of their students. However, as time went on, this view changed, and college students began to be seen as more autonomous adults. This shift in perspective led to a change in the legal landscape as well, with courts ruling that universities were not responsible for harms suffered by students on campus. More recently, this trend has started to reverse, with courts now ruling that universities do have a duty of care towards their students, specifically in the context of protecting them from foreseeable violence during curricular activities. This raises questions about the extent of a university's responsibility, especially when it comes to foreign students who may be more vulnerable due to being in an unfamiliar environment.

Does a university have a duty of care to foreign students?

The concept of duty of care is a legal one, wherein certain entities are expected to prioritise the safety of those in their care. While this is straightforward for parents and employers, the duty of care that universities have towards their students is more complicated.

Historically, universities were viewed as standing in loco parentis, or "in the place of the parent". This meant that colleges were expected to prioritise the welfare and safety of their students. However, over time, this perception changed as college students began to be viewed as adults rather than children. Consequently, courts ruled that universities were not responsible for harms suffered by students on campus.

In recent years, this trend has reversed. Notably, in a 2018 California court case, the state's Supreme Court ruled that universities have a duty to protect their students from "foreseeable violence during curricular activities". This decision set a precedent for the duty of care that universities owe to their students, establishing that colleges are responsible for creating a safe learning environment and mitigating foreseeable threats.

While this duty of care does not extend to extracurricular activities or non-students on campus, universities are still expected to take proactive measures to ensure the well-being of their students. This includes providing mental health resources, emergency response plans, and reliable notification systems to alert students of emergencies.

It is worth noting that the debate surrounding duty of care in universities is ongoing, and there may be variations in the specific responsibilities and legal obligations of universities across different jurisdictions.

Now, to address the question: does a university have a duty of care to foreign students?

The answer is yes, but with some nuances. While a university's duty of care extends to all enrolled students, regardless of their nationality, there may be additional considerations for foreign students. Foreign students often face unique challenges, such as cultural and language barriers, visa-related concerns, and a lack of familiar support systems. Universities should be aware of these potential challenges and provide appropriate support to ensure the well-being of their foreign students. This could include offering language classes or cultural integration programs, providing assistance with visa processes, and facilitating access to counselling or other mental health services.

In conclusion, universities have a duty of care towards their students, including foreign students, which encompasses creating a safe learning environment, mitigating foreseeable threats, and providing necessary support to ensure the well-being of all students.

What is the nature of this duty of care?

The nature of a university's duty of care to its students is a complex and evolving area of law. While the concept of "duty of care" is well-established for parents and employers, the responsibilities of universities towards their students have been the subject of changing legal interpretations over time.

Historically, courts viewed universities as standing "in loco parentis," meaning "in the place of the parent." This understanding implied that universities had a duty to prioritise the welfare and safety of their students. However, this perception shifted in the 1960s, as college students began to be seen more as adults than children. Consequently, courts increasingly ruled that universities were not responsible for harms suffered by students on campus.

In recent years, there has been a reversal in this trend. Courts have once again recognised a duty of care on the part of universities towards their students, though it is not as extensive as that of elementary schools. In a landmark 2018 California court case, the state's Supreme Court ruled that universities have a duty to protect their students from "foreseeable violence during curricular activities." This decision set a precedent, establishing that universities are responsible for creating a safe learning environment on campus and mitigating foreseeable threats.

The duty of care owed by universities to their students has certain limitations. It does not extend to extracurricular activities or to non-students on campus, such as visitors. Additionally, this duty expires once a student graduates.

To fulfil their duty of care, universities must take proactive steps to ensure the safety and well-being of their students. This includes implementing measures such as functioning fire alarms, storm shelters, and reliable emergency notification systems. Universities should also establish emergency response plans, coordinate with local law enforcement, and provide students with tools to protect themselves and report potential threats.

While the duty of care for university staff mirrors that of corporations, the responsibility towards students is more complex due to their status as mostly adults and non-employees. Nonetheless, universities are expected to take reasonable steps to protect their students' safety and well-being, particularly in cases where harm is foreseeable.

What are the differences between the government's and Judge Ralton's positions on duty of care?

The government's position on the duty of care of universities towards their students is that they have a “general duty of care to deliver educational and pastoral services to the standard of an ordinarily competent institution". This means that universities are expected to act reasonably to protect the health, safety, and welfare of their students.

However, Judge Ralton's decision in the Natasha Abrahart case, where a student at the University of Bristol died by suicide, found that universities do not have a duty of care towards their students. The judge's decision was based on the argument that the relationship between a university and its students is not one of "assumption of responsibility" for students' welfare, and therefore universities are not responsible for any psychiatric harm arising from their actions or omissions.

The key difference between the government and Judge Ralton's positions lies in their interpretation of the nature of the relationship between universities and their students. The government views universities as having a broader duty of care, similar to that of schools and employers, who are expected to take proactive steps to ensure the safety and well-being of those under their care. In contrast, Judge Ralton's decision suggests that universities are not responsible for the welfare of their students, as students are adults who can generally be expected to take care of their own health.

Furthermore, the government's position acknowledges the unique aspects of the higher education setting, where students are adults and not employees, which complicates the duty of care. Despite this complexity, the government maintains that universities have a responsibility to protect their students.

It is important to note that the duty of care in the higher education context is still evolving, and there is ongoing debate and discussion surrounding its existence, nature, and scope.

How can universities protect their students?

While the concept of duty of care is fairly clear-cut for parents and even employers, it is more complicated when it comes to universities and their students. Historically, courts viewed universities as standing in loco parentis, meaning that they were expected to act "in the place of the parent" and prioritise their students' welfare and safety. However, over time, this view slowly eroded as college students began to be seen as more autonomous adults. As a result, the courts shifted their view and chose not to hold colleges responsible for harm suffered by students on campus.

In recent years, this trend has started to reverse, with multiple courts ruling that universities do have a duty of care towards their students. In 2018, the California Supreme Court ruled that "universities do have a legal duty, under certain circumstances, to protect or warn their students from foreseeable violence in the classroom or during curricular activities." This sets a precedent for universities in the United States to take steps to ensure their students' safety.

So, how can universities protect their students? Here are some ways:

• Ensure all buildings have functioning fire alarms and provide students with access to storm shelters during severe weather events.
• Implement a reliable mass notification system to quickly and reliably alert students and staff about emergencies such as fires, severe weather, illness outbreaks, active shooter incidents, and lockdowns.
• Develop emergency response plans for all types of crises, including notifying the campus community and providing clear instructions.
• Foster a close relationship between campus security and local law enforcement to coordinate response procedures.
• Provide students with tools to protect themselves and report potential threats, such as mobile panic buttons and anonymous tipping services.
• Offer mental health resources and support services to students to help prevent incidents of violence.
• Educate students about harassment, consent, and personal safety, empowering them to recognise risks and seek assistance.
• Address sexual misconduct and create a proactive institutional response to prevent and respond to such incidents.
• Create safe spaces for marginalised groups, such as LGBTQ+ students, to ensure their safety and well-being.
• Protect student privacy and personal information, especially regarding their medical and mental health history.
• Train and educate faculty and staff to recognise and respond to signs of distress or potential threats.
• Establish an interdisciplinary team, including mental health professionals and campus administrators, to regularly meet, share information, and manage complicated cases.
• Develop and adhere to written policies and detailed plans for managing threats and actual violence on campus.
• Nurture a culture of community responsibility, encouraging anyone with concerns about potentially dangerous students to come forward.

What tools can universities use to protect students and staff?

Tools that universities can use to protect students and staff include:

• Implementing robust and clear policies and procedures to address issues such as bullying, harassment, and mental health. This includes training for staff and students on recognising and responding to these issues.
• Providing mental health first-aid training to students and staff to promote mental health awareness, destigmatise mental health issues, and empower individuals to seek assistance.
• Offering science-backed mental health techniques and support services to help students cope with academic pressure, social media demands, economic challenges, and career uncertainty.
• Establishing safe spaces and support groups for LGBTQ+ students, international students, and those facing bereavement, family estrangement, or loneliness.
• Utilising technology, such as mass notification systems, to communicate emergency information and warnings to students and staff in a timely manner.
• Educating students and staff about remote data privacy practices, including the use of Virtual Private Networks (VPNs) and strong passwords, to protect sensitive information and prevent data breaches.
• Creating statements of support and zero tolerance for online harassment of faculty and staff, along with educational awareness campaigns to promote online safety.
• Providing resources and support for reporting and responding to online harassment, including central reporting units to gather information and assess additional needs.

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