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Priceless:

From the University of Maine student newspaper (Sept. 16, 2002):

Over the summer a policy was created concerning parental notification of students found in violation of alcohol and drug laws at UMaine. Parents and guardians will be notified of their student's behavior if it is determined that the student has committed a violation regarding alcohol or any other controlled substance and is under the age of 21....

"A student involved in and found in violating conditions of the [conduct] code as far as alcohol or drugs is subject to parental notification if they are under 21," David Fiacco, director of Judicial Affairs said Wednesday....

On the other hand, in 2005, when a fraternity upset with Fiacco because they were being disciplined for various offenses publicized, among other things, a "set of court documents and two newspaper articles discuss Fiacco's conviction of Driving While Ability Impaired (DWAI), where he had a blood alcohol content of .089 percent," Fiacco sued it for intentional infliction of emotional distress.

So let's see if I understand this: When a legally adult student is found through university administrative processes to have violated alcohol laws, his parents not only may but should be notified. But when someone discovers that a university administrator has pled guilty in court to violating drunk driving laws, notifying the public of this is supposedly tortious, and in Mr. Fiacco's view ought to lead to substantial damages liability (including punitive damages).

I realize that it's possible that Mr. Fiacco, despite his fairly high position within the university disciplinary system, was simply following orders back in 2002, and wasn't involved in actually creating the parent notification rule, or opposed it internally. Maybe. But is it too much to ask that a university administrator in charge of enforcing a system such as this tolerate student revelations of his alcohol infractions, just as students are supposed to tolerate his revelations of their alcohol infractions?

(Yes, I realize that the students tried to convey Fiacco's past to the public, and Fiacco's office has a policy of conveying it to the parents. But surely conveying something to parents can be highly embarrassing, and intrusive into the student's lives, especially given that the infractions may involve little threat to others, while Fiacco's infraction involved not just illegal possession of alcohol but drunk driving; and conveying the information to the public has the benefit of informing the public about the character of its public servants. I also realize that the university's motive is the students' own good and the fraternity's motive may have been retaliation, though it might also have been exposing someone who they thought was unfit for his job. But whatever the motive, the means strike me as pretty similar; and it seems particularly improper that an administrator who uses such means against students would try to use the legal system to punish students who use similar means against him.)

Buck Turgidson (mail):
Why all the overheated rhetoric defending a frat? Is there some unresolved emotional conflict we should know about?

I don't quite understand how people can justify Fiacco's position from the perspective that SAE's actions were in retaliation--perhaps there is some legal standard here that I am not aware of. But I am concerned about a different aspect of SAE's action--a perverted attempt at anonymity.

If Fiacco's record was public and the statement against him perfectly legitimate--or, at least, accurate--why the covert action? Why not just come out and openly say that you don't think that Fiacco's fit to make the decisions? Guilty conscience? What is the need to funnel the information through an anonymous out-of-state agent? More importantly, how is revealing this information going to help SAE to escape punishment?

It's not revealing the information that is the cause of emotional distress--it's the mode of revealing this information. The mode of an underhanded, anonymous distribution of the information to specifically selected target certainly indicates an attempt to subvert the judicial/administrative process. If SAE's lawyer was involved not just in procuring the information but also in its distribution, did he not go beyond his obligation to zealously defend his client? Or is a smear campaign now a part of legitimate defense? Shouldn't the lawyer be sanctioned, even if Fiacco's suit is found to lack merit?
4.12.2007 3:41am
BobNSF (mail):

Why all the overheated rhetoric defending a frat? Is there some unresolved emotional conflict we should know about?


Maybe someday, Prof Volokh will serve on a disciplinary committee and will piss-off a trust-fund baby with deep pockets who will then dig up the dirt on his past, so we can all read about it in the LA Times.

But seriously, "priceless"? Unless I'm misreading the timeline, the policy was put in place in the Summer of 2002. The intimidation/retribution plan was put into action in the Spring BEFORE that.
4.12.2007 3:58am
David M. Nieporent (www):
If Fiacco's record was public and the statement against him perfectly legitimate--or, at least, accurate--why the covert action? Why not just come out and openly say that you don't think that Fiacco's fit to make the decisions?
Well, perhaps they were worried about retaliation if they "came out and openly said" these things. (I mean, Bush puts people on the no-fly list just for criticizing him in speeches, right?)

Turn your question around: if Fiacco's record was public and the statement against him perfectly legitimate--or, at least, accurate--why does it matter who revealed the information?
4.12.2007 4:16am
Toby:
Lots of snger and repressed rage in the comments...whatsa matter, couldn't get in to a frat?
4.12.2007 8:49am
PersonFromPorlock:
You have to have been a University of Maine student -- as I once was -- to get the full flavor of the place. Suffice it to say that the convenience of its administrators is very important to it.
4.12.2007 9:13am
Mike Keenan:
"I also realize that the university's motive is the students' own good"

Is it that or the financial interests of the parents?

Seems to me the motives of the university and the fratenity are pretty similar.
4.12.2007 9:31am
AppSocRes (mail):
Professor Volokh: The article you cite says that parents will be informed only if the student is under 21 and guilty of violating under-age drinking laws. In this sense, the University is in fact distinguishing between adult and non-adult students. If students are below the age of majority as defined in Maine, then perhaps it is appropriate for the University to act somewhat in loco parentis.

All that said, it seems to me that the fraternity members in this case behaved sophomorically (no surprise there) and Mr. Fiacco responded in an infantile and non-constructive manner (not appropriate or useful in one who deals regularly with college undergraduates).
4.12.2007 10:01am
Hei Lun Chan (mail) (www):
why the covert action?

Maybe they're afraid they'd be sued for "intentional infliction of emotional distress"?
4.12.2007 10:48am
Jerry Mimsy (www):
AppSocRes, isn't the age of majority 18 in Maine?

About.com list of ages
Age of Majority on Wikipedia
Department of Defense PDF of age of majorities
4.12.2007 11:02am
AppSocRes (mail):
Jerry Mimsey: You and Professor Volokh are right and I was wrong. Still, if I were paying for my son or daughter to attend the Universty, I'd prefer that the University would inform me of any hijinx they might get into. I don't think this particular University policy is necessarily a bad or inappropriate policy.
4.12.2007 11:13am
John (mail):
I would think it is important to know that some one with responsibility to administer rules about drinking and the use of drugs has himself been convicted of at least one form of public drunkenness.
4.12.2007 11:17am
_:
"non-adult"? just because they arent 21 doesnt mean they're not adults. Their parents no longer have any legal rights over them. No reason to report their drinking. I guarantee you their parents do not have access to their grades.
4.12.2007 11:18am
Ben Pollitzer (mail):
I say fair's fair.

My undergraduate institution had a similar policy, and although it did not have fraternities, I was an officer in the hall council of a residence hall that had the reputation of being the "animal house" hall on campus.

As such we were the target of several broad investigations into our (in retrospect) questionable practices regarding social gatherings. More than once individuals in the college judicial system would "write up" large numbers of students after the fact on vague evidence and then use the threat of parental notification in an attempt to force the students to roll over and admit who had planned a particular social gathering.


I don't disagree in principle with notifying parents, but I would say that that policy can be applied unjustly by school officials.

But in light of that, I don't see a rationale for finding that students engaging in a similar practice by publishing documents that are a matter of public records is an intentional tort.


also, although not strictly relevant, I recall a case from my first year torts class where it was held that colleges owe no duty to parents to "protect the morals of their children" regarding a student at the university of chicago who had become addicted to drugs and dropped out of college.

If schools aren't liable to the parents, the only rationale left for notifying parents is as a further negative consequences for the students, who at this point are adults fully capable of making their own decisions, good or bad.
4.12.2007 11:21am
Truth Seeker:
Still, if I were paying for my son or daughter to attend the Universty

Not every student at a university has bills paid by parents. I worked and took loans. An adult supporting himself does not need reports sent to parents.
4.12.2007 11:22am
DG:
Why is this a bad policy? What about the situation where the student is self-supporting and has no financial or custodial connection to the parents?

If the parents have no financial skin in the game and the students are adults, what business of the parents is it if the students get into trouble?

I was personally in a situation where, as an adult student (23), paying my own way in college, an apartment complex that catered to students sent a letter to my parents complaining that I hadn't paid my rent. I was all of a day late (and the problem was fixed before my parents got the letter). Where had the complex gotten the parent's info? Emergency information form. They tried to tell me my parents had cosigned, but when instructed they pulled the lease and - oops. While I dont think the complex broke the law, it was truly obnoxious behavior and lost them a tenant, in the long run.
4.12.2007 11:24am
Aultimer:
It's not a subtle legal issue, despite the state actors and stupid drinking age v. legal adult issue.

Let's move the situation to a private school, and fix the policy - when any student gets into trouble (with drugs,
alcohol or even cheating) the person who pays tuition is notified.

Fiacco is still a hypocrite.
4.12.2007 11:26am
Montie (mail):

Why all the overheated rhetoric defending a frat?


Perhaps Professor Volokh is pointing out something else: how woefully a public university administrators understand the rights of their students as adults.

I went to a public university. I knew several people who had limited ties with their parents and were footing their own bills. It seems odd that people like this should have their parent or guardian* notified of a relatively minor infraction.

*-Does the term guardian even apply to a functioning adult?
4.12.2007 11:27am
M.E.Butler (mail):
Substance aside, where on earth did the Maine students learn to write. That gibberish is as bad as the bureaucratese that usually spews out of the mouths of University administrators.

Perhaps the University should take more seriously its responsiblity to teach the students. How about requiring a two-day refresher on Strunk &White every semester for the whole kit 'n' kaboodle: admin, faculty, staff, students, hockey coaches, et al.?
4.12.2007 11:49am
Guest12345:
Couple of questions. To know if Mr Fiacco is a hypocrit or even applying uneven standards it would seem necessary to know if he was between the ages of 18 and 21 at the time of his drunk driving arrest?

And how many of the SAE frat members have been arrested and brought up on felony charges for possession of stolen property?

I'm thinking that if they haven't been jailed for their crimes, then they're getting off pretty easy. It seems stupid to antagonize someone who is doing them a favor by balancing a felony crime with a punishment less than they would be facing if they weren't living in the university child care system.
4.12.2007 11:56am
Oren (mail):
This whole thing sort of makes you wonder how we can possibly justify having a drinking age above the age of majority at all. At the very least, it causes these sorts of incongruous situations where an (alleged) adult breaks a law that seems designed for minors.
4.12.2007 11:56am
Ben Pollitzer (mail):
And how many of the SAE frat members have been arrested and brought up on felony charges for possession of stolen property? I'm thinking that if they haven't been jailed for their crimes, then they're getting off pretty easy. It seems stupid to antagonize someone who is doing them a favor by balancing a felony crime with a punishment less than they would be facing if they weren't living in the university child care system.

I can't find anything on the site of the Bangor Daily News about it.

One of the previous posts mentioned that the stolen property consisted of road signs.

Given the circumstances they'd probably realistically plead guilty and get a fine, community service and a stern lecture from the judge about the dangers of stealing road signs. Unless, of course there were more serious consequences. (like someone dying in a car accident)

I think most people caught stealing road signs would be given similar punishments. Although to be fair, most people who would steal road signs are younger than 25.
4.12.2007 12:19pm
Roger Schlafly (www):
The student is not truly a legal adult if he is not old enough to buy beer.
4.12.2007 12:39pm
Rick Wilcox (www):
To those speaking as if UMaine is acting unilaterally and without legal backing, I direct you here. Specifically, 99.31(a)15, which reads:

(15)(i) The disclosure is to a parent of a student at an institution of postsecondary education regarding the student's violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if--
(A) The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and
(B) The student is under the age of 21 at the time of the disclosure to the parent.

This amendment was made in 1998; UMaine acted four years after the fact and other postsecondary institutions have similar policies, all in direct accordance with FERPA. UMaine didn't make the "distinction"; it's Federal law that makes the distinction and provides the ability for a postsecondary school to make the notification.
4.12.2007 1:07pm
Eugene Volokh (www):
I'm sure what U Maine is doing is legally permitted (though not legally compelled by federal law). It may even be a good idea. But it strikes me as odd that the administrator at U Maine who is in charge of telling people about their children's alcohol offenses tried to use the legal system to punish someone for trying to tell people about the administrator's drunk driving.
4.12.2007 1:44pm
PersonFromPorlock:
Really, though, is this any more complicated than "You ratta me out, I'm-a ratta you out!"

Hardly a legal issue at all.
4.12.2007 1:46pm
Guest Jim:
EV: I'm sure what U Maine is doing is legally permitted (though not legally compelled by federal law). It may even be a good idea. But it strikes me as odd that the administrator at U Maine who is in charge of telling people about their children's alcohol offenses tried to use the legal system to punish someone for trying to tell people about the administrator's drunk driving.

3 points:
1. Although the U is described as notifying the parents or guardians it is really notifying the "Customer", the party or parties paying the bills or if on scholarship the expenditures over that. If the student is over 18 and is the sole guarantor of the expenses who else would get a notice? no one.

2. It is one thing to notify parents or guardians by confidential communication and quite another to publicize the activities of a private citizen. The second instance is, perhaps, not illegal but a very different amount of disclosure.

3. In either case the student or the administrator has the ability to sue if they wish. Such suit may by spurious but...
4.12.2007 2:16pm
whit:
imo, there is a simple way to deal with this.

if your parent is paying for college, then he can request you sign some sort of release, so that the school can contact him in regards to grades, disciplinary thangs, etc.

otherwise, they shoulnd't be notified.

you can of course refuse, and your parents can of course refuse to pay for college
reminds me of the solomon amendment
4.12.2007 2:56pm
abw (www):
My hometown paper publishes names of people who make court appearances for things as relatively minor as speeding tickets so it doesn't seem too much of a stretch from there to a school notifying parents of violations.

And I certainly think the students have the right to disclose truthful information about (almost) anyone for (almost) any reason.
4.12.2007 4:36pm
JSS:
Always seemed odd that the faculty at many universities vehemently protest parental notification rights regarding abortion, even for minors under 18, but where is the outcry here? Privacy is privacy, right? What a great way to prepare a student for adulthood, mess up and we'll tell your parents.
4.12.2007 5:44pm
Rick Wilcox (www):
EV: My comment was definitely not directed at you; it was meant for commenters like "_" who flatly claimed that a postsecondary institution did not have legal standing to make such notification.

As to Fiacco's behavior, I'm holding my tongue.

whit: It's quite possible that some postsecondary institutions have enacted that very same concept. When searching for FERPA releases to use as a model for a postsecondary institute at which I used to teach, I found various vague notes regarding "other institutions may have an omnibus waiver; however, our school does not". The only thing that worries me about the unified waiver is the potential either for abuse in the case of one that is too broadly worded, or red tape in one that is too strictly worded.
4.12.2007 7:35pm
Andrew Okun:
Fiacco's lawsuit can't possibly have merit, can it?
4.12.2007 8:26pm
hey (mail):
AO: No it didn't, and was treated harshly when it came to court. "Even if the First Amendment did not prevent recovery on this cause of action, the dissemination of truthful, publicly available documents is not sufficiently outrageous to permit recovery [as a matter of state tort law]." This is covered in the first post on the subject.
4.13.2007 1:30am