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Professor Explores Schools’ Liability with Student-Athlete Concussions Mar 2, 2018
By George Grattan
David Missirian, assistant professor of law, taxation and financial planning at Bentley University, sees a growing legal and financial risk to colleges, universities, and high schools connected to student athlete concussions. He published on this topic most recently with the Berkeley Journal of Entertainment and Sports Law, and thinks now is a critical time for schools to get well positioned on what he calls “an overlooked legal and ethical minefield.”
In the Courts
The risk to schools, Missirian explains, stems from a restatement of tort law in recent years that increases their obligation to provide a “reasonable duty of care” as “landowners” to those they invite or authorize to use their facilities—like student- athletes.
In some ways, Missirian argues, these revisions in tort law have swung a pendulum back to the 19th century, a period when colleges and universities were considered to be in loco parentis (in place of or acting as parent) for their young adult students. Primarily concerned with schools’ rights to exercise discipline on students, the doctrine of in loco parentis is based on English common law and was affirmed by United States courts as early as 1837.
Though a 1941 case did hold a university liable for injuries sustained by students when a chemistry professor improperly left an experiment unsupervised, the emphasis was on what schools had the right to do to students, not what it had the obligation to protect them from.
This state of affairs lasted until the post-World War Two boom in enrollment. GIs returning from combat weren’t thrilled about college and university administrations treating them as children, and norms around schools’ rights to discipline students began to change. By the 1960s and the dawn of the campus protest movement, Missirian says, “the dissatisfaction with in loco parentis reached a high point.” By 1967, courts were ruling that schools could no longer rely on the doctrine to justify punishing students who participated in protests.