Should Colleges Be Sued for Harboring Intolerance?

The Chronicle of Higher Education
Commentary
From the issue dated February 22, 2008
By STEVE SANDERS

Gregory A. Love, then a student at Morehouse College, in Atlanta, was beaten in 2002 with a baseball bat by a fellow student in a dormitory shower after Love made what his attacker perceived as a homosexual advance. The attacker was later convicted of aggravated assault and battery.
Love sued Morehouse, arguing that the all-male, historically black institution was liable for his injuries because it had fostered intolerance toward gay students and had "consistently fail[ed] to address complaints of homophobia" and harassment.
Status: In a decision last October, the Georgia Court of Appeals reversed the trial court's dismissal of Love's case. The appellate court held that Love's claims, if supported by evidence, could entitle him to damages from Morehouse. The case will go to trial in the coming months.
Implications for higher education: As landowners, all colleges and universities must take reasonable steps to protect those on their premises against foreseeable threats to their safety. This case takes a hoary principle of negligence law — that if you turn a blind eye to a problem, you may find yourself liable for the consequences — and applies it to a modern concern: the treatment of gay students.
Love claims that Morehouse officials created, or at best willfully ignored, "an atmosphere of hatred and violence" toward gay people or those perceived to be gay. Heterosexuals at Morehouse, he told the court, enjoy "an atmosphere of entitlement and security in knowing that administration, faculty, and staff will neither punish nor reprimand offenders for acts of harassment or intolerance" against gay students.
To Morehouse, this case is not about campus safety, but rather about whether a college can be summoned into court for failing to promote what it calls a "social agenda of tolerance." "[W]hile a college owes a duty of reasonable care to its students," Morehouse wrote in its brief, it does not "bear a heightened duty or responsibility for matters of morals and virtue," which it said were "the true basis of the underlying assault here." Such a duty, it said, would be comparable to "holding the colleges and universities liable that graduated the executives of Enron." [To read the entire article, go to: http://chronicle.com/weekly/v54/i24/24a03101.htm?utm_source=at&utm_medium=en] (Subscription required)