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I recently noticed that my university has a Covid-related policy stating that students are not permitted to attend public gatherings off-campus. Today, they officially stated that students breaking this rule can be expelled. The institution is private but receives federal funding.

While I understand the rationale behind this rule (and agree that going to parties etc. in these times of pandemic is not a responsible behavior), it raises the following question in my mind:

Can a university make rules about what students can and cannot do during their free time? I assume that they have a right to control and regulate events that involve their name and reputation (e.g. events organized by an official student association) but where is the limit? What about events that have nothing to do with the university? For instance, can they prevent their students from attending political events? Can they make rules about anything, e.g. "you cannnot eat burgers on Tuesdays" or something absurd like this?

Is the answer the same for employers and employees?

bdb484
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Mowgli
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    What does your contract with the university say? Does it reference the "code of conduct and policies"? – Trish Sep 07 '20 at 16:49
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    I'm not a lawyer, and I don't know how that rule actually is written in some code or handbook; but I woudld write it, not as rule about "what students [may] do during their free time," but as a rule about who is allowed to expose the campus community to a particular health risk. Students who have attended public gatherings are more likely to carry the virus and infect others. I would write that students who have exposed themselves to that risk are not allowed to come onto the campus and expose other students to the same. – Solomon Slow Sep 09 '20 at 17:18

2 Answers2

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With respect to disciplining its students and employees, a private school can basically do whatever it wants. There's more freedom to do so with respect to students than with employees, who have greater protections derived from anti-discrimination laws, collective-bargaining agreements, and the like.

If a private school wants to impose a No Burger Tuesdays and a complete ban on political activity, that's probably going to be permissible. The First Amendment will protect the school's right to associate with only those who meet its standards, as absurd as those standards may be. Again, there are exceptions to this rule, like Title IX, which requires equal educational opportunities regardless of sex, but they don't have much bearing on your question.

Even for a public school, there will be quite a bit of latitude here, because these rules don't actually regulate off-campus conduct. If a student wants to attend an off-campus public gathering, the campus police aren't going to lock him in his room or arrest him for leaving campus. The rule is simply that if you attend a public gathering off campus, you may not come back on campus afterward to threaten the lives of your classmates.

bdb484
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  • Thanks for the insight. What about e.g. religious freedom? If a student goes to a religious service (which is a large gathering, prohibited per the university's new rules) and then gets expelled, wouldn't that be a violation of their freedom of religion? – Mowgli Sep 07 '20 at 17:59
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    Not if a private school does it, generally speaking. The First Amendment only protects your religious freedom from infringement by the government. There are laws protecting students from discrimination on the basis of race, ethnitcity, and national origin, but not religion -- not at the federal level, at least. – bdb484 Sep 07 '20 at 18:10
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    @Mowgli There are lots of religious post-secondary institutions in the US that will expel a student who practices another religion. – Ross Ridge Sep 07 '20 at 18:35
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    "a private school can basically do whatever it wants." - Well, it has to abide by the contract it has with the student. It cannot simply make any arbitrary rule on a whim after the student has paid, and then expel the student with no refund. – D M Sep 07 '20 at 19:00
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    @DM a university can pretty much do as it pleases. There may be consequences such as court ordered tuition refunds but I seriously doubt society is going to make any university accept a student which the university clearly does not want. – emory Sep 08 '20 at 01:25
  • @Mowgli religious freedom and freedom of assembly are equal participants of the first amendment - I don't see why if it's been established they can revoke one that they couldn't revoke another. Hell, in 1905 it was established by SCOTUS they can force you to get a vaccine to stay in town... sooo.... pretty sure they can tell you to stay off campus if you've exposed yourself to too high of pathogen risk. – corsiKa Sep 08 '20 at 05:35
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    @emory But this is law stack exchange, so "do as it pleases" means in the context of the law and the contract, not what is considered reasonable by society or politically. – JBentley Sep 08 '20 at 11:31
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    @Mowgli "Wouldn't that be a violation of their freedom of religion"? If it was a ban on attending meetings of a specific religion, possibly. If it was a ban on all religious meetings (but only religious meetings), conceivably. But a ban on meetings in general would not (IMHO) be against freedom of religion. – TripeHound Sep 08 '20 at 12:38
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    @TripeHound If it was a ban on attending meetings of a specific religion, possibly Again, no. As bdd484 expressed, a private University is incapable of doing anything that could infringe any aspect of ones 1st Amendment rights, because it's not part of the government. Just as Twitter and Facebook and SE can't infringe your 1st Amendment rights. – Brondahl Sep 08 '20 at 13:24
  • I do agree, that if it were the government imposing it, then a ban on religious meetings that was part of a blanket ban on meetings in general would be much further from a 1A infringement. – Brondahl Sep 08 '20 at 13:26
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    @DM Re it has to abide by the contract it has with the student. Definitely agree, but I'd take a significant bet that those contracts always have at least 1 weaselly clause that boils down to "in extreme circumstances we can demand that you do anything we reasonably deem to be necessary". In the same way that most sports have a "sportsmanship" rule that only really exists to allow the umpire/referee/official to say "I don't care that it isn't explicitly in the rules ... you can't do that", to someone who's being an (innovative) dick. – Brondahl Sep 08 '20 at 13:28
  • @Brondahl Yes. Virtually every school I know of has requirements that the student follow orders from staff/faculty, and I know of zero private schools that agree to give students any controlling input into how far those orders can go. – bdb484 Sep 08 '20 at 13:57
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    I think the key here is, as you say correctly, that the school does not impose any restriction on a student's off-campus behavior. It simply states criteria for students which may enter the campus, in a way which is probably compatible with the contract. You should perhaps emphasize that more: The school cannot legally, and does not try to, regulate off-campus conduct, even if the wording appears to imply it, even though it feels like it, and even though the effective consequence is exactly that it does. – Peter - Reinstate Monica Sep 08 '20 at 14:33
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    @Peter-ReinstateMonica Is your point that "the school can't stop you doing a thing, they can only expel you if you do that thing"? (which would be a perfectly reasonable point - I'm just unsure). – Brondahl Sep 08 '20 at 14:43
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    @Brondahl Not so much expel for doing a thing, but deny physical entry for doing the thing. If someone was attending classes online, it's unlikely they would be prevented from doing so because of their attending a high population event. – corsiKa Sep 08 '20 at 16:19
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    @corsiKa: Actually, there have been recent cases where universities have indeed suspended or expelled students (i.e. kicked them out of all classes, both online and in-person) for violations of COVID regulations. I don't know whether this has been for on-campus or off-campus violations, but I'm not sure that it matters. – Nate Eldredge Sep 08 '20 at 22:08
  • @corsiKa it appears many universities are going to ban physical entry to all students and will take additional punitive measures against those students it has decided broke the covid-19 rules. – emory Sep 09 '20 at 22:59
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They can and must if what you do off-campus affects campus safety

Any organisation has a duty to protect the safety of its members. If one person poses a danger to others, that person must either change their behaviour or be removed. If neither happens and that person goes on to cause some harm to other people, the organisation as a whole and its management personally can be held legally responsible, both under criminal and civil law.

An obvious example of off-campus behaviour requiring you to be expelled would be criminal activity, especially violent or sexual crimes. These would naturally affect the safety of other people. Of course we know that organisations do not always follow their own rules in these cases, but that does not not absolve them of responsibility; if anything, it leaves them more open to criminal and civil proceedings by being knowingly negligent.

Now consider COVID-19. Unlike primary schools where one class tends to stay together, higher education tends to involve students gathering for one individual subject and then splitting up to gather together with other students for another individual subject. This basically puts an entire year group in a "bubble", which for a reasonable-sized university is clearly not effective for minimising contact. Universities have a further problem that students dine, socialise, and take part in clubs/teams across year groups. If one person becomes infected, this makes it remarkably hard for the university to lock down selectively to prevent a full-scale outbreak across the entire university.

As anyone studying safety engineering knows, if you can't mitigate the consequences then the other way to minimise the risk is to reduce the chances of it happening. The natural way to try to stop this happening is to try to stop people becoming infected in the first place - and so we come to the rule you've mentioned. In this case, the university's duty of care to their students (and employees) means that they need to ensure people going on campus have taken appropriate precautions.

Note by the way that if the student was studying 100% online, as many students in the UK are at the moment, they would not present a risk to other students and this rule would not apply to them. The issue is simply that when they come on campus, the university needs to be sure their behaviour off-campus does not makes them an on-campus risk.

Graham
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