At the beginning of the semester, a pall of regulatory uncertainty hung over the UT Austin campus and surrounding areas. In several emails sent over the summer and in the beginning weeks of school, the UT administration hinted at a robust off-campus enforcement regime. Parties were specifically disallowed, both on and off campus, but the enforcement mechanism remained murky.
Some suggested that the sweeping scope of Sec. 11–404 of the student conduct code — the so-called “health and safety” clause — might bring off-campus activity within the purview of the university. One email promised that “sanctions (including suspension) (would) be assessed based on the severity of the incident.” The Behavior Concerns and COVID-19 Advice Line (BCCAL) was established for students to report violations of the health and safety protocols.
The claws retracted somewhat in an alternately
plodding plauding and pleading August 28 email imploring students to “do a better job of looking out for one another.” In the same email, the posture of the administration switched from direct enforcement to working with national student organizations and off-campus property managers to enforce the rules. The administration also stated that it asked city officials to enforce state and local rules in the areas surrounding campus.
And then, silence.
Students received no further information regarding the off-campus enforcement posture of the university since the August 28 email. As well, there have been no reports of disciplinary actions taken against either student organizations or individuals.
Recently, however, in response to questions submitted by The Orator, the university clarified that “Student Conduct and Academic Integrity in the Office of the Dean of Students does not regulate off-campus events that allegedly violate COVID-19 health protocols.” Instead, the university wants “to focus on the health and wellbeing of our students and community by encouraging Proactive Community Testing and reiterating educational information to help students make better decisions.” To date, no students or student organizations have been penalized in any way by the university.
The official off-campus enforcement policy of the university, then, is non-enforcement.
The Legality of Enforcement
Student Conduct and Academic Integrity is the department within the Office of the Dean of Students tasked with enforcing the university’s code of conduct and other institutional rules. The department has traditionally dealt mostly with on-campus violations of university policies and academic dishonesty. As Sara Kennedy, a spokeswoman for the dean of students’ office, makes clear, “the university has always had more authority to enforce rules on campus than in many off-campus situations.”
However, off-campus enforcement of the university’s rules is not precluded. Sec. 11–102(c) of the university’s institutional rules makes clear that the students may be disciplined for behavior both “on the campus or off of the campus” that violates university rules “even if they are or may be penalized by civil authorities for the same act.” This provision allows the university to discipline instances of off-campus cheating, hazing, harassment, etc. And though it could, in theory, be applied to off-campus violations of COVID-19 protocols, there are a few kinks in that hose.
The university faces two significant problems when trying to enforce social distancing rules off-campus: 1) finding a provision of the student conduct code under which to comfortably lodge such citations and 2) respecting the jurisdiction of other enforcement entities and the constitutional rights of students.
There is no provision of the university’s conduct code that speaks directly to social distancing, wearing a mask, or self-isolation or -quarantine. Most prohibited off-campus activities relate to either cheating or sexual misconduct. To fit COVID-19 violations into the existing policy structure, the university would likely have to bend the original intention of some of its provisions. And while some provisions would snap like uncooked angel hair, there is at least one provision so broad and vague that the university could easily twirl it around the proverbial fork of COVID-19 enforcement.
Sec. 11–404(a)(3) of the conduct code contains a prohibition against “harmful behavior” defined as behavior that “threatens or endangers the health or safety of any student or employee of the University, or of visitors to the campus.” In normal times, this provision could almost certainly not be interpreted to require the sorts of heightened off-campus safety measures that the virus necessitates.
But laws are interpreted contextually and as the context changes so may the force and function of a given policy. During COVID-19, the courts have already demonstrated unprecedented deference to public officials in upholding health and safety protocols. It’s unlikely that UT would be rebuffed by any court if it endeavored to use Sec. 11–404(a)(3) to police student conduct off-campus, particularly given the breadth and vagueness of the provision.
The briar patch of overlapping state and local jurisdictions and students’ constitutional rights is, then, the stickier wicket.
According to spokeswoman Kennedy, off-campus violations of COVID-19 health and social distancing protocols “pertain to local city and county orders, for which enforcement falls outside the jurisdiction of the university” (hyperlink in original). Further, Kennedy continues, “as a public institution, (the university is) prohibited from enforcing actions that allegedly impact a person’s constitutional rights.”
This response is, in a word, baffling.
First, the university is specifically empowered to police off-campus behavior even when that behavior falls within the overlapping jurisdiction of other state and local entities. Section 11–404(a) of the student conduct code authorizes the dean of students’ office to enforce the code “(in spite of) any action taken on account of the violation by civil authorities or agencies charged with the enforcement of criminal laws.”
Under this structure, whether or not its policies overlap with local, state, or federal enforcement, the university is authorized to take independent additional action through its own disciplinary process. In fact, Sec. 11–404(a)(1) prohibits students from “engag(ing) in conduct that may violate any provision of federal, state, or local laws,” which by necessity means that the university must share jurisdiction with federal, state, or local entities.
Second, the university routinely enforces policies that “allegedly impact a person’s constitutional rights” (italics added). The university is constantly subject to lawsuits alleging such violations and even a brief perusal of the university’s policies yields several provisions that, at least in theory, rub up against constitutional rights. The Foundation for Individual Rights in Education (FIRE) cites Appendix D — the university’s policies on sex harassment — as “both clearly and substantially restrict(ing) freedom of speech.” The university’s hazing policies contain several provisions restricting behavior that could cogently be classified as speech, not action.
And while social distancing policies and limitations on large gatherings clearly impact constitutional rights like freedom of association and freedom of speech, courts have consistently held that such restrictions, in the midst of a global pandemic, do not violate those rights. It is, frankly, difficult to imagine a court prohibiting the university from initiating independent disciplinary actions, so long as the university’s prohibitions extend no further than current state and local regulations.
This last is an important caveat. As the state and the city of Austin begin to reopen restaurants and bars with COVID-19 restrictions in place, the university could face legal challenges if it attempted to prohibit students from frequenting these off-campus establishments, whether as individuals or even as organizations. In this case, if the state has declared that such establishments are safe enough to be open to the public, the university probably couldn’t interpret its own policies as prohibiting students from going to bars and restaurants (although, there at least a few conceivable legal arguments the university could use to do just such a thing).
However, with regards to fraternity parties, tailgates, and other West Campus gatherings that clearly violate current city orders, there is no apparent legal reason why the university must maintain a policy of non-enforcement. Instead, UT’s policy of non-enforcement appears to be better explained by social and political realities, issues of public perception.
The Occasions of Sin
The Catholics, as they always seem to, have a wonderfully illustrative concept for actions which, though not themselves wrong, make future wrongs more likely: the Occasions of Sin. The occasions of sin are the controllable circumstances surrounding a particular act that make that sinful act more likely. Or, as my high school theology teacher put it, “letting your son close the door when his girlfriend is over is not itself hanky-panky, but it sure makes such nonsense more likely” (yes, if you’re wondering, he did actually say hanky-panky).
In terms of creating the conditions for the spread of COVID-19 among students, the UT administration has done far more than simply let the door remain closed. By making the early-summer decision to bring students back to campus, UT has lit candles, spread rose petals over the bed, and put the needle down on a Marvin Gaye record — all while coyly telling students via email to leave six feet for Jesus. Unfortunately, however, they weren’t being coy at all.
Toward the end of last semester and the beginning of June, the UT administration told students they would be back on campus, stating as early as April that “it’s pretty clear we will be open in the fall…not entirely like last fall, but not like this spring, either.” Students registered for classes (with classroom locations listed), made final decisions on off-campus living, and, especially for many incoming freshmen, signed on-campus dorm leases under the notion that a substantive part of their experience would take place on campus. This decision almost certainly enticed students to campus who would have otherwise stayed home or delayed matriculation.
Further, the university maintained throughout the summer that UT football would take place as planned in the fall, with occupancy limits in place, but with fans nonetheless. At 25 percent capacity, Darrell K Royal can still house 25,000 people.
It is difficult to imagine that UT’s decisions did not materially contribute to the increase in COVID-19 cases in the UT Austin area, an increase 10 percent higher than the state average. “Reopening” school brought students back to campus in droves and, absent the university’s announcement, fraternities and sororities might have decided not to have pledge classes, other organizations might have put off recruitment, and countless other COVID-19 risks might have been avoided. Further, many of the large gatherings to make the news in recent weeks have been tailgates and watch parties. However, in a sort of “turtles all the way down” sense, UT was itself just responding to the external factors of its environment — occasions for sin, if you will.
UT’s Political and Financial Environment
The political and financial realities facing UT made the decision to reopen and continue with football virtually inevitable.
Thanks largely to administrative bloat and wrongheaded infrastructure spending, UT was already not in great financial shape headed into the pandemic, even despite yearly increases in tuition since 2018. The pandemic put the university in a state of financial distress, necessitating budget cuts and furloughs. UT simply could not afford the decrease in enrollment that would result from students taking gap semesters or delaying matriculation. Further, students who take time off from college are significantly less likely to return and finish their education — further lost revenue for the university.
Similarly, UT football was a virtual certainty this semester. Of UT’s twenty varsity teams, football is one of only three teams to make rather than lose money, generating $217.4 million in profit over the last two years while the other 19 programs operated at a $12.1 million loss. And while that might seem impressive, nearly all of the spillover from UT football is used up elsewhere in the UT athletics system. Even in the record-setting academic year of 2017-2018, UT athletics only netted $2 million in true profit. Losing even one year of football revenue would likely mean cutting other athletic programs.
Against the foreground of financial troubles was also the backdrop of political pressures inducing the school to reopen. UT is enmeshed in a complicated political web of funding, legislation, and regulation and both the governor’s office and the legislature are important players in the university landscape, each capable of creating significant headaches for the university when displeased. The big decisions regarding reopening and football were being made around the time Governor Abbott was attempting to slowly reopen the state in late-May, and the state’s flagship university signaling that it would not reopen in the fall would have been a political disaster.
And so, UT responded predictably to the economic and political factors it faced, reopening campus and playing football over the protests of public health officials in both instances. This is the reality underlying the policy of non-enforcement: UT’s response to its political and economic environment is not all that dissimilar to students’ response to their social environment.
I’m shocked, shocked to find there’s (gathering) going on here!
The activities that have epitomized college life for the last half-century — sex, partying, barhopping — are the exact activities most likely to spread COVID-19. To think this would change in the face of a virus that poses minimal direct risk to the health of college-age students was foolhardy. As one observer put it, “UT’s plan for reopening (was) to hope college students (would) stop acting like college students.” Predictably, they didn’t.
But neither did UT stop acting like a cash-strapped university. Facing severe financial limitations on both the academic and athletic front, the university chose not to act in a way that would minimize the spread of the virus. Even as UT decries large gatherings and parties in its words and statements, its actions made such events all but certain.
In other words, the scorpion stung the frog. Again.
Is it really any surprise that UT doesn’t want to point the finger at students and student organizations who are just responding predictably to an environment that the university played a considerable role in creating?