July 8, 2008

Washington State Court Says Campus Police Officers Lack Authority to Patrol Dorms

In an opinion that could limit the ability of campus police officers in Washington State to conduct random patrols of residence halls, the state’s Court of Appeals has ruled that students have a constitutional expectation of privacy in their dormitory hallways, The Spokesman-Review, a newspaper in Spokane, Wash., reported.

The case stems from a 2006 incident involving a student’s arrest in a dormitory at Washington State University on burglary charges. A trial-court judge threw out the charges, saying the arresting officer had overstepped his authority by eavesdropping at residents’ doors and attempting a ruse to bring students out into the hallway. The university’s governing board responded by adopting a policy giving officers explicit authority to patrol dorms.

But in a unanimous opinion issued late last month, the appellate court agreed with the trial-court judge, saying that the students’ shared living space carried the same privacy protections as a private home under the Fourth Amendment to the U.S. Constitution.

One of the three appellate judges, however, wrote in a concurring opinion that while the officer in the 2006 case had overstepped, the presence of a police officer in a dormitory hallway was not in itself a violation of privacy.

It was unclear whether Washington State or local prosecutors would appeal the appellate court’s decision. According to The Spokesman-Review, all public universities in the state have allowed their officers to conduct dormitory patrols and will now have to review their policies. —Charles Huckabee

Comments

1. I’m glad to hear it. The Fourth Amendment has already been eviscerated in the case of anyone who drives a car. If the courts aren’t going to protect people’s homes—and a college dormiitory is no different in essence from any other rented residential property—it may as well be deleted from the Constitution altogether.

   — Gustave    Jul 9, 08:04 AM    #

2. Well, Gustave, that is really the question, isn’t it — whether a college dormitory is “in essence” different from any other rented residential property? Given the safety and security concerns on college campuses today, and the responsibilities of colleges to protect students from risk of harm, the difficult task is how to balance privacy interests of students in dorms with the need for adequate and reasonable security.

   Arnie

   — Arnie    Jul 9, 08:47 AM    #

3. I think this decision is nuts, however the colleges do have a remedy: specify in the terms of the contract for dormitory space that patrols will be made and so privacy rights in common areas (hallways, just like streets) do not apply.

   — Bill    Jul 9, 09:33 AM    #

4. Gustave: actually, a college dormitory, if properly set up, is a residential community, therefore, not the same as private home or personal vehicle.

   That said, I read the news account and can see that the Court’s reasoning is, in part, rooted in the notion that a residential community exists on the specific floor in question given its community bathroom/shower. However, the idea that the hallway would have the same level of privacy as the student’s room seems to me to stretch the idea a bit. A personal room in a residence hall is not the same as a hallway in which interaction among residents is encouraged. I am not of a mind to say that campus safety or police officers are not appropriate members of that wider “hallway” community – I am thinking about “community policing” concepts that have been adapted to campus residence halls. That access to the hallways is limited to residents does not mean that it is not accessible to other, designated members of the campus community and that includes safety and police officers.

   In light of the increased expectations that colleges and universities provide greater security on campus for students (and these expectations are from students and their parents), this court ruling undercuts one of the college’s means for maintaining that security. How do you establish a “community policing” concept in a residence hall in which safety and police officers are not legally eligible to enter according to this ruling. Seems to me the judges did not consult appropriate experts in campus safety and residential life in order to better understand the issues associated with maintaining safety in residence halls while balancing appropriate 4th Amendment protections in this case.

   And there is no small irony in the fact that the officer in question actually found the stolen items in the room of the student who opened his door when the officer did identify himself. So, an actual crime had been solved which probably would not have been solved if the officer was not in the hallway conducting his investigation.

   I hope that more reasoned discussion about balancing appropriately privacy/individual rights with community needs/rights will take place in our society. Seems to me the pendulum is swinging too far in one direction as I read this court opinion.

   — Rick    Jul 9, 09:34 AM    #

5. I agree with the appellate judge who wrote that this particular officer overstepped his bounds, but his actions do not mean dorms are out-of-bounds for campus police. This ruling is insane and only puts students in danger.

   — DLS    Jul 9, 09:46 AM    #

6. Campus residences are community spaces. If a member of the community (an officer) enters a room, is not violating propoerty rights. Just as a mother or a father can step into a son’s bedroom: they are living in the same community. There is a need in US campuses and it is to give certainty of security. The officer then has the responsability to present security risks to the proper authorities, that is common sense. The decision, I believe, should be reconsidered.

   — Luis    Jul 9, 10:31 AM    #

7. In regard to #7… the flaw in your analogy is that nearly 100% of college students are legal adults or emancipated adults, and the doctrine of in loco parentis was repeatedly confirmed as dead in the 1960s. Neither police officers nor college officials act “just like a mother or father… [in] a son’s bedroom.” You may argue whether most students are psychologically or socially mature, or whether other adults should treat them as they should be or as they are, but in this country at this point in history, they have legal rights at 18.

   — HIED doc    Jul 9, 10:45 AM    #

8. I have to disagree with the posters above who characterize the decision as “nuts.” The court’s decision that floor residents have a subjective expectation of privacy that society is willing to recognize as objectively reasonable is a good one — based significantly on the then-existing written policies (which were in conflict with actual practice) on who has access to residence dorms, the nature of the dormitory community and the way it self-governs, as well as existing case law regarding privacy in apartment buildings and fraternity houses.

   The school has now changed its written policies on who has permission to enter, which will, in all likelihood, affect the rule.

   Many readers will think I’m naive, but I am constantly amazed at the number of people who so willingly sacrifice civil liberties in the name of security. Keep in mind that as things stood, the police could still enter, they just needed permission from someone with authority to grant it. It will not be hard to draft a policy that allows police access without accompaniment and, importantly, puts students on notice that hallways are not private and they should not expect them to be so.

   The question of whether we should force students to accept diminished privacy in a dorm by drafting such a rule is also open to debate. But, at least with an amended policy they would have notice that an expectation of privacy in their hallways would be unreasonable.

   — babylawyer    Jul 9, 10:49 AM    #

9. From the original AP article in 2006: “[Judge] Frazier ruled that because WSU has a policy prohibiting anyone but residents and escorted guests into residence halls, police patrols looking for violations are an unconstitutional violation of students’ privacy rights.” According to the Court of Appeals decision, that regulation has since been reworded, to include “University administrators or designees, officers, agents, or employees whose duties include working with residence hall residents or programs, performing custodial, maintenance, or operations of residence halls, or performing safety, emergency, security, police, or fire protection services.” (Interestingly, the justices “decline to comment on the affect, if any, these new regulations would have on our decision.”) It would appear, then, that such policy conflict has been resolved for future incidents, as Poster #9 suggests.

   However, I struggle with the court’s comparisons to fraternity housing—one student living in a residence hall, even with close friends, do not necessarily constitute the same shared experience and formal recognition as a Greek chapter. If this residence hall had been theme—housed, eg. international, “green,’ or otherwise-designated—then maybe there’s a stronger tie-in there. But I’m not sure I see it in this case, or the court’s reliance an Illinois decision re: fraternity members—even if the “physical layout” of the building is similar, as claimed in the appellate reference, it’s stretched too thin for me.

   To the question of “in loco parentis”: I would argue that, although gravely wounded in the ‘60s, reports of its demise have been somewhat exaggerated. Consider the multitude of lawsuits re: student safety, especially relating to alcohol use & abuse, injuries and deaths. Colleges and universities are challenged to maintain order and ensure safety on campus, acting as both providers and disciplinarians, even as others—especially students, as “legal adults”—rail against the perceived imposition and encroachment of unwanted authority. It’s a delicate balance, but one that still endures.

   — Monty    Jul 9, 11:32 AM    #

10. Nice article !!!

    hey does any one know where I can get a cheap subscription to a news magazine?

    — Johnny Matar    Jul 9, 11:45 AM    #

11. Rick, Javier, & Monty have all expressed the problem well: Americans (and not just 18-year-olds) want to have absolute freedom AND a guarantee of absolute safety, and they’ll cheerfully sue if they don’t get them. NOW. But that’s not the way life works.

    babylawyer papers over the distinctions between police harrassment and legitimate law enforcement. If a student were raped in that same hallway, the Univ. would be sued for failing to police it. If the hallway were on fire, would the university be sued for bringing in the fire department? Despite the best of intentions, no university can win.

    “A fine kettle of fish you’ve gotten us into, Ollie!” [read: ACLU]

    — diogenes    Jul 9, 12:09 PM    #

12. As a residence life administrator who has to teeter constantly between the often conflicting interests of protecting students’ rights as adults and providing a safe community for students who live together, I nevertheless tend to agree that on balance students are adults whose rights should not be trampled upon. And in general I would not want University Police to listen at students’ doors or to engage in ruses to gain entry to individual student rooms.

    That said, I believe that this decision creates a conundrum. In stretching the boundaries of “private” space within a residence hall to include the shared community spaces, the court has in effect given resident students two layers of privacy: the common space AND their individual room/bedroom. How would this play out in real situations? Let’s say that one or more other students who share the community have a concern about the behavior of a peer. As co-habitants of the “residence,” could they not simply give consent to the police to enter the “shared” space and to hang around as much as they wanted? Furthermore, what if it’s the Resident Assistant who gives consent to Police personnel to enter the “residence?” The RA is both an agent of the university and a member of the “private” community in question. What claim to privacy would a student have in such a case?

    As an earlier poster noted, the court did not go so far as to say that police could never enter shared spaces. My thinking is that universities, then, do have the means to address student behavior issues using police personnel as necessary. What concerns me about such rulings is not so much, then, what the court has said, but rather the chilling effect that such decisions often have on institutions, whose policies are sometimes more motivated by a refusal to risk lawsuits. I’m also concerned about the requiste effect changes in policy might have on students who do want to address problems within their “private” community. What if universities simply decide to avoid policing common residence hall spaces altogether, leaving it to individuals or RAs to report concerns before they take action? It is one thing to ask students, as members of a “community,” to report to an RA that a neighbor is making too much noise. It is quite another to expect a student to report suspicions of, say, someone dealing drugs out of their residence hall room, particularly when it is not clear what action the university will take.

    Given the size of some of the “communities” we create in residence halls (though, thankfully, the practice of warehousing students in huge complexes is losing favor) it seems that police action cannot be totally erased from the equation. As Monty noted, different housing units create different experiences. Some might be considered more of a “shared community” than others. We must figure out a way to effectively police residence halls and complexes while still respecting students’ rights. We need to be sure that residence life and university police personnel work together to establish legal yet effective strategies rather than simply throwing our hands up and saying, “Ok, the court says a residence hall floor is private—there’s nothing we can do.” And we need to be sure that conduct policies support these efforts, and that they will be enforced.

    The goals of protecting students’ rights and ensuring safe communities can and do come into conflict. But these conflicts also can and should be worked out. This ruling does nothing to alter our responsibility to do so.

    — John Shore    Jul 9, 12:17 PM    #

13. I live in a gated (yes, and I’m not ashamed of it) condo community. We pay for the electricity for the security lighting, the guards’ salaries and health benefits and for their patrol car. If anyone (hasn’t happened yet) gets robbed, raped, killed or just otherwise “hassled” on the property or in their residence, YOU CAN BE SURE that we will be sued for not providing the services that the residents bought their homes for. Regardless of any constitutional ramblings to the contrary, the association has responsbilities to comply with the contractual understanding that was agreed upon when the resident purchased their unit. This agreement is EXPLICIT and doesn’t need any metaphysical interpretations of its IMPLICITY (there is none). Similarly, when students (regardless of their age or their particular perception of the “house rules”), “buy into” taking up residence in a university housing unit, both sides have to be of the same mind regarding what’s right or wrong with regard to any overlap or “infringement” of a physical nature. Casting spells, hanging chicken heads from doorknobs or burning candles for bad JuJu is typically not covered under our list of prohibited behaviors (burning fires in the middle of the shower, keeping a Pygmy Vietnamese pet pig or allowing grandparents to live with the student) are, in our memoranda of understanding. Please le’s not make this necessary arrangemtn of mutual respect and civility any more convoluted than it inevitably will become, when one of these “adults” decides to make a dirty bomb in the communal laundry room. Don’t laugh, at one Ivy, one such “adult” thought it was okay to begin to assemble all the ingredients for such a device and if it had not been for the “infringement” committed by his scared sh*tless roommates, Mr. Adult would have carried out his plan to detonate the Quad on 9/11. Please let us let sanity prevail without the help of the ACLU or a platoon of legal stooges on fat retainers. Surely we can do that without a national debate.

    — Bartolome    Jul 9, 01:59 PM    #

14. I’m a die-hard WSU Cougar, and I think this ruling goes one step too far. Students should have an expectation of privacy in their rooms, but hallways are public spaces and IMO there is no reasonable expectation of privacy in hallways. The officer in the original case was out of line to be eavesdropping at doors, and especially out of line to try and get students out into the hallway.

    — Al    Jul 9, 02:28 PM    #

15. RE: #14. The condo association / gated community question is different precisely because you contract for services to protect residents — and specifically give them permission to be there in your little utopia. In this case, the rules of dorm (to which students must agree and adhere) specifically say only residents and those escorted by residents may enter. The school can change that — and already has.

    As for emergency situations, there is an implicit right to enter for fire and police — just like if you dial 911 from your gated condo or any other residence, but are unable to let them in when help arrives.

    Lastly, if you really do not like the fourth amendment — which seems apparent in your reference to “Constitutional ramblings”, it can be changed in the way all changes are made to the Constitution —through a lengthy democratic process involving Congress the people of each state. Or, you can keep voting Republican and it will be gone before you know it.

    — babylawyer    Jul 9, 02:57 PM    #

16. I have, and always have had, concern over the practice of residence hall administrators, student staff members, or law enforcement entering any campus residence for the sole purpose of seeking violations of law or institutional policy. If that was the officer’s role in this case then, legality aside, it’s problematic.

    Too many residence hall administrators, even those trained in traditional student affairs programs, seem to relish their authority to ‘hold students accountable’ and ignore their responsibility to educate and guide students about what it means to live in a responsible community. Their approach is informed by an opinion that the normative behavior amongst students is deviant and negative. Administrators default to a reactive stance, waiting for those terrible students to (inevitably) do bad things and then they intervene – expressing a supposed moral and ‘educational’ higher ground.

    I don’t know what’s legal or constitutional – I defer to the legal process. But I certainly wonder if the common reactive stance is congruent with the values of higher education. If our faculty believed the normative academic performance of students would be poor, and only intervened when it was time to fail a student, then they would likely create the very dynamic they anticipated. And, honestly, such an approach is easier than accepting the responsibility to engage students and guide them through the rigor of meeting higher expectations.

    — John    Jul 9, 03:01 PM    #

17. Just musing about changes —- For, when I went to school the rules were simple:

    No police officer was permitted on-campus, without probable cause and “Written Permission” of the Authorities, and the Students Union President (or his/her Representative)

    True this was overseas —- and undercover officers were on-campuses —- but the undercover cop could act (let alone make an arrest), —- nor was any evidence gathered by the undercover officers admissible in any court —- since they were not permitted on the campus (without probable cause and permission).

    And, almost universally most of us inclusive of an overwhelming majority of faculty members could never even image consenting to “Police Presence On-Campus.”

    Has the focal perspective changed much overseas? Let me direct the readers to an article f From The Chronicle Nov. 10, 2006 Issue

    Article Titled: “Reformers Face the Politics of Change in Greece” By Aisha Labi:

    “Greece’s asylum law, which the reformists also want to change, is one of the clearest examples of how political Greek higher education is. Police cannot enter a campus without the consent of a panel that includes its rector, a faculty delegate, and a student representative. Because students almost never agree on who should represent them, the panel rarely convenes, which means that police are effectively barred from campuses, even when demonstrations turn violent, as they did in June.”

    — zahid    Jul 9, 03:22 PM    #

18. John (post 17) – please prepare yourself with the proper training to take a job as a Residence Director or Area Coordinator for an academic year. Do the job for a year. Then reconsider your assumption (framed as a “concern”) about Residence Life staff operating with “…the sole purpose of seeking violations…” I am confident that with proper training and experience you will quickly discover that very little time is spent in the sole pursuit of violations.

    The issue at hand is what constitutes public vs. private space, and the degree to which any space in the residence hall can be classified one way or the other. And that issue is related to the institution’s duties to provide a safe and orderly environment in which the academic mission of the college is promoted. Burglarly, rape, assault, harassment, etc. all detract from the educational purpose of the institution. Reasonable enforcement of policies to curb such behaviors does not constitute a focus on seeking violations, it reflects addressing what is actually happening in a residence hall.

    We need to keep our perspective and recognize that this issue is not a simple privacy matter. It requires learning how to live in a community with the attendant safeguards that the community attempts to use. And that requires balancing individual and community rights, which is always easier said than done. I understand that no staff is perfect but please spare me the blanket aspersion on the work of the many dedicated student affairs professionals who make an honest effort to contribute positively to the student experience in college. I have many years of experience in this field, and the number of authority abusers among res life staff is no greater or lesser than what is found in any other professional group (for example, physicians, lawyers, business owners, academic faculty members, etc.)

    — Rick    Jul 9, 04:18 PM    #

19. Zahid (Post 18) – I believe you may have misinterpreted the title “Police Officer” in this situation. He was employed by the university, acting in that role—not as a law enforcer from an outside entity (eg. city, state, nation). Other institutions of varying sizes may use the term “security officer,” or the like, but in this case it refers solely to a university-employed member of a security team, charged with duties specific to that institution and its facilities and residents. What you suggest— an outside police force entering a campus/facility— is normally reserved for later stages of necessity, if a situation escalates, and usually (but not always) that is done with permission from said institution; VA Tech provides a recent grim example. That’s not the case here, though, but you illustrate the interesting challenges between different institutions in other countries. -and I agree, too, that the faculty might be among the first in line to protest a “presence” from an authority outside campus… or, for that matter, historically, an authority ON campus…

    — Monty    Jul 9, 05:02 PM    #

20. Monty:-

    Washington State University, as its name indicates, is an agency of the State of Washington; and its campus police officers are consequently state agents. The question at issue here is whether legal adults inhabiting rented accommodation—for which they pay through the nose to their landlords, the University—may be subjected by the State of Washington to warrantless searches: for that is what these “random patrols” of their residences amount to. I appreciate the dilemma that many Res Life people have described in this thread: damned if you do, sued if you don’t. But that, it seems to me, is an argument for defining the tort laws more carefully, rather than invalidating one of the most important protections of the Bill of Rights.

    If indeed WSU’s campus police has information establishing upon probable clause that unlawful activity is taking place within its halls of residence, let it do what every other law-enforcement has to do: go before a judge and obtain a warrant.

    — Gustave    Jul 9, 05:38 PM    #

21. Thank you, Rick. I actually did that job for 3 years, and have, like you, stayed in the field for several years now. And I have paid attention to the assessment done my own campus, consulted on other campuses, and paid close attention to the dialogue in the various professional circles that overlap with housing and residence life – and I am sad to report that my critique is unfortunately not unfounded.

    Indeed, you are correct – the challenges we experience in residence halls are serious. I certainly know that there are many quality student affairs professionals who understand and actively accept those challenges while building community within the context of their institutions’ missions. Many of them are my colleagues, friends, and some are even professionals I have mentored. They, and I, know that we must anticipate, prepare for, and respond to an incredibly vast array of difficult and sometimes horrible situations. Yet, there is much more to what we do, or at least should do, and I get the sense that you and I would agree on that.

    However, on too many (but by no means all) campuses, the method of administering residence halls is defined by a desire to only manage, react, and head off the next problem before it gets too big. In other words, don’t let anyone die, avoid lawsuits, and stay out of the news. Regrettably there are some presidents, provosts, and deans who expect nothing more than that.

    Like all good student affairs practitioners, we are only supposed to talk about the good that we do. We cite the literature, translate theory to practice, brag at our conferences using our scrubbed clean assessment data, review best and promising practices, sternly correct those who call it a dorm, and demand that we be considered educators, too.

    And we always act like everyone does it the right way. Heaven forbid we admit that our field has too much dirty laundry.

    — John    Jul 9, 06:19 PM    #

22. To Monty #20:

    Simple clarification —- In the overseas instance (#18); the universities were/are barred “by Law,” from hiring anyone to ‘Act in Any Law Enforcement Capacity” whatsoever on-campus period (limited security as indicated below was permitted in my days).

    Simply put “No Officers or Security Personnel” —- irrespective of who their employer was (University, Local, State, Federal, Etc.) were permitted inside the campuses.

    In case of the university I attended (and many other universities that I know of) —- The University could hire its own security provided that they were “ONLY” stationed at the perimeters of the campus —- And, by Law they were “Totally Barred” from taking any action against anyone on-campus. In short the Universities were and some still are “Sanctuaries’” —- Off-Limits to all Law Enforcement & Security Personnel, irrespective of who their employer may be.

    To illustrate the same; I saw on several occasions students and faculty break-up fights near the perimeter whilst “Security Personnel Watched,” —- For under the then Prevailing Law they could not even touch anyone who had a legal right to be on-campus (forget searching or acting-on something; they could not even question those legally on-campus).

    And, the “Sole Authority” of the University Employed Security Personnel by Law was limited to ensuring that “Unauthorized Persons” did not enter the campus.

    And, expounding on the Greece example (See #18) —- Even if a major crime was witnessed, no arrest on campus could be made without written signed permission from the student, faculty, and adminstration representatives. —- Furthermore if someone had an outstanding arrest warrant, the chances that the Police (or any authority) would get permission to make an arrest on campus were at best remote.

    — zahid    Jul 9, 07:09 PM    #

23. I believe that the ruling is sound. A police officer that patrols a state campus is no different form a State Highway Patrol officer, and as such they must not over step their legal authority. I agree with Gustave and say “get a search warrant” if they have reasonable concern. Fear has allowed us to already limit too many of our rights as a country and it’s time to put things back in perspective. Our campuses are far less dangerous then the news would like people to believe. Our crime rates are lower than most communities of similar size. Yes, tragedy has struck us in the heart over the years, but we can’t let fear of future tragedies cloud our perspective. There are many reasonable things we can all do to help prevent these tragedies in the future without waiving our civil rights. Our campuses have a responsibility to do things like educating students and giving students resources. We even have a responsibility to provide security or campus policing. We need to provide safe buildings and sidewalks with good lighting. Aside from that, our students should be restricted and protected by the same laws as any other adult.

    I have far too many colleagues that use the term “kids” when talking about our students. These students deserve more respect and should not only be called adults, but also treated and respected as adults. If they were not on our campuses, many of these adults would be married, holding full-time jobs, and starting a family. Don’t forget, they would also have rights. Our students deserve reasonable protection, just like all of us do in our own home communities. I have also found that students rise up to the expectations I have for them as adult learners. Yes, they on occasion do stupid things that expose them to a new life lesson. We will never be able to protect them from every hard life lesson, nor should we. That’s part of being an adult.

    — T    Jul 9, 09:31 PM    #

24. The majority of the residents living in the dorms at Washington State University (WSU) are not there voluntarily. WSU has a freshman live-in requirement where all single undergraduate freshmen under 20 years of age are REQUIRED to live in organized groups that are officially recognized by the University (residence halls, fraternities, and sororities) for one academic year. Not having the freedom of choice is enough without giving up their right to privacy. I’m glad, at last, a court found individual’s rights supersedes WSU’s perceived right of control.

    — From Pullman    Jul 9, 09:56 PM    #

25. John (post 22) – I appreciate your candid and thoughtful statement about the basis for your concern. I believe you are correct in assuming we would agree on a number of points. And, I too am aware of the pressures from many in senior administration to keep the institution from public embarrassment by simply managing campus life in general (not just the residence halls but student clubs, organizations, athletic teams, etc.)

    However, given the many years I have worked at a number of institutions, I remain confident that the majority of the professionals in the residence halls and student affairs generally, are more focused on student development than policy enforcement.

    Personally, I find myself frustrated by how often my work is only referenced by non-student affairs colleagues in terms of policy enforcement with no recognition of how much time and energy I and my student affairs colleagues devote to student development. I often believe our work in support of student development is invisible. And, in that regard, perception can become reality. But, this broader concern is separate from the specific issue of this court ruling regarding where to draw the line between privacy and common areas in residence halls.

    Thank you for your response.

    — Rick    Jul 10, 07:14 AM    #

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