False Claims? The Legal Argument of the Drug-Free Schools and Communities Act

Wednesday, November 19, 1997

What Does the Drug-Free Schools and Communities Act of 1990 require of Institutes of Higher Learning? As a result of the Act becoming law, the Department of Education adopted an internal set of procedures for doling out federal funds — conditioning federal funding on the 'adoption and implementation of a Drug and Alcohol Abuse Prevention program.'

To comply with the act, Dartmouth College must, at a minimum, 'prohibit...the unlawful possession, use, or distribution of illicit drugs and alcohol students and employees on its property or as part of any of its activities.' (emphasis added) The reference to College property calls into question claims made by Sean Gorman, Chair of the CCAOD, that because of the 'affiliation' between non-College owned Greek houses and the College, Dartmouth risks loss of funding by excluding from the CCAOD recommendations. The Department of Education makes no reference in its administrative code to college-affiliated organizations, only college property.

The prerequisites for federal funding do not, as Gorman has repeatedly claimed, shift the responsibility of enforcing New Hampshire laws to Dartmouth College, but instead mandate that the College should establish 'standards of conduct' reflective of New Hampshire drug and alcohol laws. With regard to enforcement, the Department of Education mandates ' a clear statement that the Institute of Higher Education will impose disciplinary sanctions on students and employees (consistent with state and federal law).'

Under New Hampshire law, the distribution of liquor to minors by non-state licensed individuals (such as a fraternity giving alcohol to a minor) is a misdemeanor offense (RSA 179:58).

Social-Host Liability

Prior to 1995, New Hampshire law provided a plaintiff no liability 'against a social host, rather than a person or organization licensed under New Hampshire statutes [Macleaod v. Ball, 1995].' The referenced case involved a nineteen year-old who provided alcohol to another minor, who drank it and subsequently fell off a bridge. After his fall, the recipient, sought damages against his friend, who had given him the alcohol. The court ruled that New Hampshire statutes did not provide a basis for damages based simply on the fact that a social host violated New Hampshire law. Members of the New Hampshire Supreme Court accepted the common law rule that 'it is the drinking, not the providing, of alcohol that causes harm. The only way an injured party could recover damages from a social host providing alcohol to guests was if the plaintiff could prove the conduct of the host was 'reckless' — that the host 'consciously disregarded a substantial and unjustifiable risk of a high degree of danger.'

There has been no case, to date, in New Hampshire where a college has been held liable for the actions of its students, their conduct notwithstanding. The court recognized that 'an injured guest will be least likely to obtain recovery in this sort of case.'

False Claims? The Legal Argument of the Drug-Free Schools and Communities Act

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