Originally published October
Binge drinking on campus is nothing new, but the challenges facing those who seek to reduce its ravaging affects are growing. While the consequences of excessive alcohol consumption often turn deadly, educators and administrators who seek to take affirmative action against alcohol abuse need to understand the complex – and often conflicting – legal interests that can hinder and even frustrate the most well-intentioned efforts. As the examples below demonstrate, sound legal advice is a prerequisite to effective planning and action against on-campus binge drinking.
The Need to Act
On September 5, 2004 Colorado State University sophomore Samantha Spady was found dead in an unused room on the second floor of the Sigma Pi fraternity house. Police investigators found that over a 10-hour time period surrounding a big CSU football game, Ms. Spady had consumed the equivalent of 30 - 40 drinks, mixing beer and distilled spirits. The 5-foot-6-inch, 126-pound co-ed had a blood alcohol content of .436 at the time of death. According to the local coroner, a blood alcohol content of .40 is considered potentially lethal.
Official reactions have been mixed. CSU President Lawrence Penley suspended all beer sales at the school’s Hughes Stadium for the remainder of the football season; however, it is unclear what impact such a measure will have, given that students and football fans likely will continue to consume alcohol beverages at tailgate parties in the stadium’s parking lot, as well as before and after the game. Local police subsequently cited 19 individuals with illegally procuring alcohol for minors; those cited, including two members of the Sigma Pi fraternity, either hosted or participated in parties Ms. Spady attended the night before she died. Of the 19 cited, 13 also were cited for underage drinking. Yet, nobody will be charged specifically with contributing to Ms. Spady’s death, and no additional citations are expected according to local law enforcement officials. Police explain that there was no evidence that anyone forced Ms. Spady to drink, or that anyone was aware of the severity of her condition.
While the CSU community remains in shock over this latest victim of campus binge drinking, the incident is nothing new to college and university administrators. Educators, regulators and legislators across the country are struggling to understand how high school students like Samantha Spady – a DARE mentor, senior class president, National Honor Society member, head cheerleader and homecoming queen – become victims to alcohol abuse in college.
Getting Where Your Institution Needs to Be
Social scientists across America are studying the interaction between young adults and alcohol, but many of the more promising studies still are in process. Medical authorities continue to better define the specific impact and effect of alcohol on the human body, but the growing database of pertinent statistics by itself seems incapable of halting the crisis.
Likewise, good ideas abound, ranging from creating campus task forces and promoting anti-alcohol campaigns, to greater enforcement of existing alcohol laws and stringent efforts to reduce the availability or presence of alcohol on campus. Everyone agrees that action is necessary.
What some overlook, however, is the legal consequence of those actions. Any analysis of on campus binge drinking that does not look at the competing legal interests can become the proverbial Road to Hades – paved with good intentions, but ultimately counter-productive.
Consult, Before You Act
Consider the example of John D. Wiley, the well-intentioned chancellor of the University of Wisconsin at Madison. Chancellor Wiley, appalled at the increasing incidents of illegal drinking by students, decided to strike at the heart of the problem. Working directly with local bar and restaurant operators, he negotiated an agreement with the retailers to prohibit discount drink promotions. This, the chancellor reasoned, would help reduce excessive drinking by college students who flocked to local night spots that offered ladies nights, "drink till you sink" one-price specials, and other discounted promotions.
What Chancellor Wiley did not expect was a lawsuit earlier this year by students naming him and 20+ local retailers as defendants who allegedly engaged in a price-fixing conspiracy. University of Wisconsin students filed a complaint in state court alleging that 24 local bars illegally fixed their prices – an agreement that would violate antitrust laws – by voluntarily eliminating drink specials on Friday and Saturday nights. The bars’ owners responded that they agreed to the ban at the express urging of Chancellor Wiley and officials of the City of Madison. In addition to alleging price-fixing, the students also sought to have their lawsuit certified as a class action; the case remains pending. Imagine what a big surprise that was for the university’s administration.
The lesson here is to make sure that competent legal counsel are included among those who advise the decision makers. Common sense solutions are attractive, but sometimes fail to take into account the rights and interests of all who will be affected by their application.
Even the Best Laid Plans . . .
Understanding the legal boundaries in this complex area can be challenging. Some areas of jurisprudence, such as the delicate balance between government regulation and the First Amendment’s protection of free speech, can stymie even the best of lawyers. One example is the recently decided case of The Pitt News v. Pappert, in which a legislatively-supported effort to restrict alcohol beverage advertisements on educational campuses was undermined by a court’s determination that the restriction unconstitutionally impacted a student newspaper’s First Amendment rights.
The Pitt News, an on-campus student newspaper, challenged the constitutionality of a Pennsylvania law that prohibited advertisements for alcohol beverages in media affiliated with a university, college or "educational institution." The newspaper is an independent student organization, but is affiliated with the University of Pittsburgh. The U.S. Court of Appeals for the Third Circuit overturned the statute on First Amendment grounds. After determining that free speech was implicated, the appellate court decided to overturn the Pennsylvania law for two legal reasons. First, the law violated the student newspaper’s commercial speech rights, because it did not advance adequately the substantial government interest in reducing underage drinking. No evidence was offered by the state to prove that a reduction in alcohol advertisements in The Pitt News would lead to a "material" decrease in irresponsible consumption and related activity on campus. According to the federal appellate judges who issued The Pitt News decision, the most direct way to combat underage and abusive drinking by college students is greater on-campus enforcement of the existing alcohol beverage control laws that prohibit underage drinking.
Second, the law placed too great a financial burden on too small a group of speakers, e.g. the independent student newspaper that depends on revenues from alcohol beverage ads to fund its operations. Certain generic burdens imposed on speakers that are not content specific, and that are applied equally to all speakers, are legal and appropriate. For example, newspapers have to pay for a business license like any other business. However, when news media are singled-out for special financial burdens (such as denying them the ability to obtain alcohol advertising revenue), First Amendment considerations can render the law unconstitutional. The Third Circuit in The Pitt News case decided that, because Act 199 only applied to media affiliated with academic institutions, it was too narrow.
As a practical matter, the Third Circuit’s decision in The Pitt News likely will be perceived by college and university administrators as further proof that efforts to cope with campus alcohol problems are doomed to futility. Armies of social advocates continue to clamor about campus binge drinking. Legions of lawyers keep targeting colleges and universities with liability claims for alcohol-related property damage, injuries, and even deaths. Parents, the local press, and even some government officials who know better scream that the schools just are not doing enough. Yet, whenever, an initiative is launched or a substantive action is taken, it often is immediately challenged – and frequently is rebuffed.
The Pennsylvania legislators who passed Act 199 can be viewed in the same light. They have a substantial government interest, i.e. excessive alcohol consumption among Pennsylvania college students. They decide to take focused action in an area where police power and the Twenty-first Amendment vest the state legislature with extraordinary power and discretion, i.e. the regulation of alcohol. Yet, to what result? Five years of litigation culminating in a decision that students’ rights to make money selling alcohol beverage ads trump the state’s need to limit the degree to which its own instrumentalities are used to expose students to alcohol advertising.
Quo Vadis?
Act 199 was drafted, and adopted, with the benefit of good legal minds. Yet the result was five years of litigation, followed by a determination of unconstitutionality that will not be challenged.
Are all such efforts to curtail the scourge of on-campus binge drinking doomed to the vagaries of an overly litigious America?
No matter how well-intentioned the actions undertaken to restrict excessive drinking, legal challenges will be a risk. The best way to reduce that risk is to consult in advance with experienced, competent attorneys who specialize in the esoteric areas of Education Law and Alcohol Law. The investment in good counsel up front can help educators and administrators avoid the unfortunate example of Chancellor Wiley. More importantly, sound advice can help colleges and universities take measures and implement programs that stand a better chance of protecting the students on their own campuses against the fate of Samantha Spady.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.