Risk Management Articles
A Wide World of Risk
The growth in study abroad forces colleges to foresee dangers wherever students travel
By MARTIN VAN DER WERF
In July of last year, Israeli bombs were falling on Beirut, and American students gathered on the outskirts of the city, looking for a way out. A line of buses chartered by International SOS, an international security company, pulled up. A worker from the Philadelphia-based company called out a list of the people they had come for. Eventually about 75 students - those who were covered by an evacuation contract with SOS - would take the company's buses to Damascus, where they caught flights to Cyprus.
The rest of the students gathered in Beirut had to stay behind and fend for themselves.
With more students studying abroad than ever before, and amid heightened fears about terrorism and political conflicts around the world, some colleges are going to extreme lengths to protect against risks. Some are signing up with security companies that will rescue sick, wounded, or endangered students by helicopter, if necessary. A few are even quietly buying kidnapping-and-ransom insurance.
The number of insurance claims involving study-abroad programs is quite small. United Educators, which insures almost 900 colleges and universities, more than any other insurer, processed fewer than 100 claims over a 10-year period ending in 2004. More than one-third of the claims involved sexual assault, sexual harassment, and other sexually threatening behavior, a key concern because two-thirds of all American students traveling overseas are women.
Fighting even one such claim can cost hundreds of thousands of dollars. And some college officials admit that they do not want to be in the position of fighting in court against students who were harmed while overseas.
"This isn't a large claims generator, but it is a huge worry," says Constance Neary, associate general counsel for risk research at United Educators. "The volatility in the world and the places that students want to go to has got everyone's antenna up."
More than 200,000 American students studied overseas in the 2004-5 academic year. The number has doubled in the last eight years, according to the Institute of International Education. A Congressionally appointed commission has set a goal of one million students studying abroad within a decade.
As the number of students studying overseas increases, it will be difficult for colleges to establish or find enough adequate programs with challenging curricula. Students desire evermore-remote locations, and colleges are being pushed to support the extremely adventurous.
There is little case law on study abroad, so colleges are constantly redefining how far their responsibilities extend. Some colleges go no further than carrying general liability insurance and requiring students who study overseas to acquire international health insurance. But some institutions, including some Ivy League universities, are doing more, ensuring that students will be evacuated quickly if a war breaks out.
The questions colleges face about what risks are out there are as broad as the imagination. But in the end, most claims are commonplace.
In the United Educators review of study-abroad cases, the most common claim after sexual assault and harassment was for traffic accidents, making up 18 percent of all claims. Other types of claims, all with less than 10 percent of the total, included drowning, slips and falls, suicide, and athletics injuries.
"I have seen more deaths and injuries in so-called safe places than in Israel or more challenging locations," says Stephen C. DePaul, assistant director of the international office at the University of Texas at Austin. "Usually, it is because of accidents involving alcohol abuse."
While many undergraduates cannot legally drink alcohol in this country, the drinking age is 19 or younger in most of the rest of the world. That is just one of many differences in social and legal expectations. The list goes on.
Drug offenses are often treated much more severely in other countries, with lengthy prison terms. The right to face one's accusers, fundamental to the American judicial system, is unheard of in much of the world. Sexual harassment may not be seen as a serious crime in other cultures. Intimate fraternization between students and professors, forbidden here, may be acceptable elsewhere.
In Africa a student or faculty member must be on constant guard against mosquitoes, for fear of catching malaria. How ready are colleges to find treatment? Are the standards for structural and fire safety in, say, Thailand, acceptable to Americans?
More than two-thirds of all traffic deaths occur in developing nations, yet the roads are often the only way to get anywhere. Is that an acceptable risk?
It's a sobering list of questions, and impossible to foresee all of the problems that might occur.
William P. Hoye, former associate vice president and deputy general counsel at the University of Notre Dame, says, "Statistically, study abroad has been remarkably safe."
However, in analyzing study-abroad cases, he has noticed a pattern. Legal problems often result from trips where a single faculty member takes a dozen or fewer students overseas and does not inform the institution that the trip is occurring.
"We have a lack of faculty training in health and safety," says Mr. Hoye, who is now an executive vice president of the Institute for the International Education of Students, a Chicago-based organization that runs college-level study programs in 16 foreign countries for more than 150 American institutions.
Many institutions are struggling just to get a handle on how many students, faculty members, and administrators are overseas, and where they are at any one time. Julie Anne Friend, the travel-security analyst in the study-abroad office of Michigan State University, says the university has set up a database for overseas travelers. Everyone about to go on a trip is supposed to enter his or her name and a detailed itinerary before leaving. But she knows the database is missing many trips.
Some faculty members "are reticent about participating," she says. "They are worried people are monitoring their travel. Some will say this trip is not for credit, so we don't have to register with you."
The university had talked about forcing compliance by refusing to offer legal assistance to people who get in trouble overseas but did not register the trip. However, "it would be a PR nightmare to refuse to help someone in trouble overseas, so we have never followed through," says Ms. Friend.
However, as Mr. Hoye says, the college must be informed "because the likelihood is when something goes wrong, someone is going to get sued."
There are three basic types of study-abroad programs, and the risk to the home institution varies accordingly:
- Students take a leave from an American institution and enroll in a foreign one. Lawyers say those cases are easy. All the risk transfers to the foreign institution.
- Students enroll in programs run by a private company or by a consortium of colleges. In those cases, responsibility is often divided between the college that sent the student and the program provider.
- Students sign up for programs run overseas by their own or another American institution. In most cases, the college running the program takes on the risk.
But the legal landscape for overseas study programs is still evolving. The history of incidents includes bus crashes killing students on narrow mountain highways, students stepping into hazardous elevators with warning signs they didn't understand, and students catching rare diseases or being stranded alone when their visas were denied.
Vincent R. Johnson, a professor of law at St. Mary's University School of Law, in Texas, points out in a recent article in theJournal of College and University Law that the majority of cases related to study abroad have probably been settled, rather than fully tried, which is common for tort claims. For that reason, he says, "the number of unreported cases based on harm to students participating in study-abroad programs may be considerably larger than what appears in legal-research databases."
The few cases that resulted in lawsuits provide some lessons.
Thiel College, in Pennsylvania, leaned on a waiver of liability to protect it when a student was sexually assaulted by two doctors in Peru after she underwent emergency surgery there. A Pennsylvania court ruled against Thiel, finding that rather than protecting the college, the form created a "special duty" to the student. It found that the college violated that duty when no one from the institution stayed with the woman at a Peruvian clinic during the surgery.
Eastern Michigan University contested a sexual-harassment claim involving male students harassing female students by contending that Title IX of the Education Amendments of 1972 did not apply overseas. A federal judge in Michigan disagreed, saying Title IX must apply because otherwise women studying abroad would be surrendering their protection from sexual harassment.
In both cases, the institutions opted to settle out of court rather than appeal.
A jury found Lewis & Clark College had breached its fiduciary duty to a disabled student who filed suit saying her disabilities were not fully accommodated while she was in Australia.
The college paid a $5,000 judgment to the woman, Arwen Bird, but the decision may have opened up new legal liabilities. The case "means that foreign-program providers should exercise considerable caution in the statements they make about being able to accommodate students with disabilities," writes Mr. Johnson. The case was far more expensive than the judgment. One outside legal expert estimated that the college spent $500,000 litigating the suit.
The outcomes of those cases have, to varying degrees, influenced the way the defendant institutions now see study-abroad programs.
Lewis & Clark has become more cautious about what it promises to deliver, said the institution's vice president and provost, Jane Monnig Atkinson.
"We haven't fundamentally changed our programs," she says. But the lawsuit "made us be much more clear about what conditions students will encounter."
Ms. Bird was a paraplegic. Since her trip overseas, no students in wheelchairs have sought entry into the college's study-abroad program, says Ms. Atkinson.
She says one student with autism wanted to study in an overseas program "that would have required a high degree of independence." The college staff spoke with the student and the student's parents and convinced them that the student would be better off in a program in another country where there was closer supervision, she says.
Lewis & Clark places a big emphasis on overseas programs - more than 50 percent of this year's graduating seniors have gone abroad. During this academic year, about 260 students from the college will study abroad, and next year that number will increase to 365. The college also has unusually extensive preparation programs. Students who are about to go overseas attend orientation classes for up to two hours each week.
As at many other colleges, Lewis & Clark's most popular programs are in the most remote locations: Ghana, Kenya, Tanzania, Ecuador, and, when the travel documents can be secured, Cuba. The programs can be up to a semester in length. Students planning to go to Africa are started on a regimen of anti-malaria drugs and given detailed lessons about AIDS.
"Our focus is keeping the students very busy and away from any sort of risky behavior," says Rebeca Beeman, assistant director of overseas and off-campus programs.
Meanwhile, Eastern Michigan has scaled back its overseas programs, primarily for economic reasons. In recent years, the institution routinely ran simultaneous, semester-long study tours in Europe and Asia, each with as many as 50 stops. But those trips have been replaced by shorter ones. The university sends 250 to 300 students overseas annually.
Although the longer trips were ended in part because students could no longer commit the time, or, in the strapped Michigan economy, the money, concerns about security were another reason, says George Klein, director of Eastern Michigan's study-abroad office.
"We have to have health and safety issues more at the forefront than when we started these programs and we thought the world was a more placid place," he said. The university has also cracked down on what it perceived as a growing pattern of student misbehavior overseas.
"Students need to know they are not free agents on these tours," says Mr. Klein. "Their individual desires are subservient to the good of the whole."
Students who sign up for study abroad are required to read the university's Student Code of Conduct and sign a statement agreeing to abide by it while overseas. Mr. Klein says that requirement was not tied to the lawsuit, even though it was Eastern Michigan students who were accused of sexual harassment against fellow students.
"Certain things make our attention more intense than it might otherwise be," he says. "What we have now is a culmination of years of experience, advice, input, and study."
Thiel, with about 1,200 students, no longer has a study-abroad program. Betsy Fontaine Hildebrand, a college spokeswoman, says Thiel students who want to study overseas are directed to programs run by other institutions.
Fears of Terrorism
The concomitant rise in students studying abroad and increase in concerns over safety have created business for insurance companies and for companies that provide emergency health care and evacuations overseas.
The terrorist attacks of September 11, 2001, "changed everything," says Laura Angelone, director of scholastic programs for International SOS. In 2001 the company had "two or three" colleges as clients. It now has contracts with about 100, and is bringing on 20 or 30 more every year. Linda McGee, president of a Medex Insurance Services, which provides coverage and emergency evacuations, agrees that "colleges are one of our fastest growing areas," up 75 percent since 2001. Medex is a contractor or subcontractor to 453 colleges, usually through insurance policies.
Joan Rupar, an assistant vice president with AIG WorldSource, says her company's premium collections from colleges have increased sixfold in just the last two years. The company is a division of American International Group Inc.
Purchases of kidnapping-and-extortion coverage, which will help cover ransoms and the use of a negotiator, have gone up a lot, says Ms. Rupar.
Renee Block, risk manager at Rice University, called that kind of insurance "very important. That is a coverage that some institutions, even businesses, overlook." She declined to say, however, if Rice provides kidnapping coverage overseas. In most cases, institutions that carry the coverage do not want even those who are covered to know about it, because if that information were divulged to kidnappers, they might ask for more in ransom.
Increasingly, even in developed countries, health-care providers want cash up front from Americans before they will treat even the simplest illness, says Ms. McGee. "An increasing part of our job is wiring money or guaranteeing payments," she says.
Most business is won, however, when colleges watch how the companies respond to events like the bombing in Beirut.
"We were in there, pulling students out before the State Department," says Ms. Angelone. "We dispatched our own security forces to get the students and followed a convoy of [United Nations] buses."
Not long ago, she says, colleges had policies that covered only faculty members and administrators, but they extended coverage to students because they realized how bad it would look if faculty members were being loaded onto helicopters while students were left behind. International SOS has contracts with Dartmouth, Harvard, and Princeton Universities, among others.
Callie Lefevre, a Princeton student, who was on one of the International SOS buses, later wrote in her blog: "So the Ivies had all purchased first-class tickets out for their students, and students from other colleges and universities would have to wait for the American embassy to get its act together. Our evacuation had all the class divisions of the Titanic."
Why is the business growing? No college wants to be the one left on the Titanic.
KEY LEGAL CASES ONSTUDY-ABROAD PROGRAMS
Fay v. Thiel College
Facts: An undergraduate, Amy Fay, went with a group of students to Peru in May 1996 to experience "liberation theology in practice." Ms. Fay became ill and was taken to a clinic in Cusco. All the faculty supervisors and other students continued on the trip without her, leaving her in the care of a Lutheran missionary unconnected to the Pennsylvania college.
She asked to be flown to a clinic in Lima or back to the United States. She asked to call her parents before doctors performed an appendectomy. All requests were refused. After the surgery, she was sexually assaulted by the surgeon and the anesthesiologist.
Outcome: A court in Mercer County, Pa., found in 2001 that a waiver signed by Ms. Fay did not absolve the college of responsibility. The parties settled out of court for an undisclosed amount.
Bird v. Lewis & Clark College
Facts: Arwen Bird, a paraplegic student, was accepted into a 15-week program in Australia sponsored by the college in 1996. She alleged that despite written assurances from the college that her needs would be met, she was denied access to some classes and could not go on some outings because of her disability.
The college argued that it had attempted to meet her needs, including paying for taxis for her and paying for airline tickets between cities when other students had to take buses.
Outcome: Ms. Bird filed a lawsuit making nine claims against the college. All but one were denied by the court or the jury. The jury found in 2000 that the college had committed a breach of fiduciary duty to Ms. Bird, and awarded her $5,000.
King, et al., v. Eastern Michigan University
Facts: Six African-American female students enrolled in a five-week program in South Africa in 1999. The women alleged that they were frequently called derogatory names and sexually harassed by three male students who were also on the trip. When they complained to the faculty member supervising the trip, he declined to intervene.
The university argued, in part, that Title IX, which prohibits discrimination against women in academic programs, only applies in the United States.
Outcome: A judge in a U.S. District Court in Michigan found in 2002 that extraterritorial application of Title IX was "unquestionably mandated." Otherwise, study-abroad programs could be closed to female students because the net effect would be "requiring them to submit to sexual harassment in order to participate." The parties settled out of court for undisclosed terms.
HOW TO REDUCE RISK FOR STUDENTSOVERSEAS
Risk managers and insurance companies recommend that colleges and universities take these steps to protect themselves from costly claims and lawsuits in study-abroad programs:
- Screen and train faculty members and administrators who will be on the trips or are planning them, looking for overseas experience and good judgment.
- Develop a handbook describing the responsibilities of faculty members.
- Thoroughly vet host families and foreign employees, including criminal-background checks, if possible.
- Operate orientation and training programs for administrators, faculty members, and host families on potential risks.
- Select students who have proper maturity and judgment. Also, consider a student's health records, including mental health.
- Develop a handbook describing the behavior expected of students, insurance requirements, and details of emergency plans.
- Write emergency-response plans and update them regularly.
SOURCE: United Educators
Section: Money & Management
Volume 53, Issue 30, Page A1