In Loco Duplicitis

At Dartmouth, tales of alcohol-sodden legal issues are usually as mundane as home foreclosures in inner city Detroit. Events this summer, however, have been rather different. Ever since Dartblog first broke the story two months ago, the College has been abuzz with the news that one of its own had been arrested and charged with underage drinking. Given that students routinely run afoul of state liquor laws, the nineteen-year-old’s fate was hardly a surprise; after all, in 2009 alone the Hanover Police Department cited and adjudicated 110 undergraduates for violating “New Hampshire’s standards of underage consumption.” In such an environment, only the most obtuse would have been caught off guard by the official response.

            What, then, has led to this sudden interest in a freshman’s legal misadventures? A quick look into the College’s involvement in the investigation and its other alcohol-related policies provides the answer.

On the evening of February 27th, a student, who we shall call Barry, decided to break the monotony of on-campus dining with a trip over to Molly’s on Main. After being seated with a friend, Barry consumed a hearty, three-course meal and used a falsified identification to order four alcoholic drinks during his two-hour stay in the restaurant. Upon finishing dessert, he and his friend paid the bill and began their trek back to campus. Unbeknownst to them, however, an employee from the College’s Office of Greek Letter Organizations and Societies, Ruth Kett, had observed Barry’s illicit transaction and grew concerned about his apparent indiscretion. Recognizing him from a school-sponsored bartending class earlier that term, she suspected that he was underage and “had acted illegally.” Rather than confront him directly as an attentive administrator ought to do, she responded in the extreme and called the police.

Within minutes of Barry’s departure, officers arrived and spoke with Ms. Kett. In the intervening period, she had used her access as an administrator to log into the Dartmouth student information database and read-up on the suspect’s background. Incredibly, she honed in on the wrong “Barry” and mistakenly identified a sophomore from the Class of 2015 who had been nowhere near the restaurant that night. During her ensuing conversation with Hanover Police, she gave them the erroneous name and explained that she was affiliated with the College’s Greek System and was therefore “keenly aware of the underage drinking problem on campus.” The officers then gathered relevant information from the waiter and the restaurant’s copy of the receipt before contacting Dartmouth Safety and Security (DSS).

When the operator they spoke with identified the individual in question as a member of the “Chi Alpha Chi” fraternity, they finally realized that they were searching for the wrong “Barry” and began canvasing the campus with revised criteria. Working with DSS officers, Hanover Police quickly located the suspect’s dorm room and began pounding on the door. When no one answered, the responding officer entered the two-room suite, citing concerns that the student might be unresponsive because of excessive alcohol consumption. After finding that Barry was not present, the ever-expanding search party turned to the Internet and began to scrutinize his Facebook page for clues. They snooped long enough to learn that his girlfriend was not enrolled at the College and that he had not posted anything about his whereabouts. At an impasse, Safety and Security then offered to “monitor [Barry’s] Dartmouth Access Card and contact [the lead officers] if he returned to his dorm.”

At around 10:40 that night, DSS advised the Hanover police that Barry had been detained on North Main Street by Carson Hall.  After arriving on the scene, Officer Jeffrey Ballard began to interrogate him about his prior whereabouts and examined the contents of his wallet for a fake identification. Finding nothing, he administered a Horizontal Gaze Nystagmus (HGN) sobriety test and arrested Barry for “Illegal Possession of Alcohol and Unlawful Intoxication.” Officer Ballard then issued him a summons and requested that he turn over all the alcohol he had in his room. Barry complied and produced a case of beer and several bottles of liquor from his dorm’s inner closet, most of which belonged to his roommate and their friends. He was then released to DSS who took him to Dick’s House for the remainder of the night.

At about 3:45 that morning, Officer Ballard received a call from the Dick’s House staff alerting him that two nurses had used a baby monitor to eavesdrop on a phone call Barry made to a friend. During the conversation, he mentioned “he had hidden his fake identification in his underwear and was going to be testifying against Molly’s for serving him the alcohol.” Officer Ballard then accompanied several other detectives back over to campus where they rendezvoused with a cohort of DSS officers before returning to Dick’s House to meet the nurses in the infirmary. After confirming the content of the conversation, the officers requested that Barry be brought into an adjacent room for another round of interrogation. The nurses agreed, and at 4:00 in the morning, the bleary-eyed freshmen was coaxed out of bed and escorted into the presence of a half-dozen uniformed officers. In a performance that would have put the best of Stasi interrogators to shame, Hanover police told Barry that “he was f*cked now” and that unless he gave up his fake identification, he would be strip-searched until it was found. Not surprisingly, Barry complied and produced a falsified Rhode Island driver’s license from his left front pocket. Officer Ballard then confiscated it, and after leaving one of his colleagues behind to ensure that a “mentally distressed [Barry]… did not make attempts to hurt himself,” returned to the station and began the arrest warrant application process. 

Reviewing the details of the case, one scarcely knows where to begin. Spying on students at an off-campus restaurant, releasing private information protected by FERPA, tracking individuals’ movements with ID cards, divulging the content of confidential conversations, assisting in warrantless interrogations – all of the above are immensely concerning and deserve a discussion far larger than what can be contained here. What The Review feels it is necessary to comment on, however, is the underlying trend that unites these various outrages: the apparent antipathy that the Administration exhibits toward the ideals of in loco parentis.  

For anyone who has matriculated to an American university in the last half-century, there has been the well-founded expectation that astronomical tuition checks buy more than just a few classes each term. The mission of higher education, we are repeatedly told, is to provide the unsung, yet invaluable service of linking today’s youth to the realities of the world that they will one day inherit. As the rare institution that can span the nation’s generational gap and shape the behavior of its young, the American college helps ensure continuity in this critical role and prepares future leaders for a lifetime of success and positive citizenship. It is for this reason, then, that John Sloan Dickey used his first commencement speech to remind us that “the world’s troubles are [our] troubles… and there is nothing wrong with the world that better human beings cannot fix.” Seen in this light, higher education is meant to better the world tomorrow by improving the individuals who will rise to lead it today.

It was from this defining assumption that the legal doctrine of in loco parentis first came into vogue on college campuses across the country. Based on the tradition of parents’ rights in British common law, it made provisions for an adjunct guardian to “restrain and correct the mannerisms” of those in his care so as “to make them more complete and more moral human-beings.” Beginning in the 1850s, American colleges assumed this responsibility in toto and began to suspend civil liberties in the name of character education. According to Harvard Law Professor, Philip Lee, this legal precedent led the President of Johns Hopkins to remark in his 1876 inaugural address:

The College implies, as a general rule, restriction rather than freedom; tutorial rather than professional guidance; residence within appointed bounds; the chapel, the dining hall, and the daily inspection. The college theoretically stands in loco parentis; it does not afford a very wide scope; it gives a liberal and substantial foundation on which the university instruction may be wisely built.

 In practice, this philosophy of character-building led administrations to impose restrictive social regulations on their students, including curfews, speech limitations, gender divisions, and internal adjudication proceedings. This, of course, varied from school to school, but whatever the specific provisions were, the logic underlying it all remained the same: universities had the legal and moral authority to shape the behavior of undergraduates as they saw fit.

            By the 1960’s, however, this time-tested model began to break down. With the rise of the Civil Rights Movement and the Supreme Court’s decision in Dixon v. Alabama, wider interpretations of the 14th Amendment’s “due process” clause meant that colleges no longer enjoyed such legal leeway when dealing with their students. As a result, the doctrine of in loco parentis underwent a fundamental change, shifting from the hard discipline of punishment to the soft guidance of institutional paternalism. New policies emerged in which colleges adopted the role of “facilitator” and used their “student affairs offices” to shape campus culture from the ground up. Peer mediators, student mentors, and affinity deans became the material embodiment of increased efforts to cultivate the interests and maturity of individual students rather than chasten them for stepping out of line. A quiet revolution in higher education was taking hold, and underlying it all was the conviction that it is a college’s fiduciary responsibility to act with the best interests of its students in mind.

            Dartmouth College was certainly not immune to this legal sea change. Beginning in the 1960’s, it too began to retrench its policies around the ideals of solicitous instruction and turned its back on the punitive regimes of old. As a result, Pankhurst’s initiatives are now justified with the assurances of increased student safety, welfare, and moral growth rather than with concerns about responding in kind through legal channels. To this end, standards have been relaxed and, much to the chagrin of budget-savvy administrators, legions of bureaucrats have been hired to staff new offices dedicated to improving student life and the character education it supports. Undoubtedly, employees like Ruth Kett owe their jobs to these efforts and the various offices dedicated to “handling the Greek problem,” integrating student diversity, and fostering community service that they created. As a result, her decision to report Barry to the authorities at the first sign of trouble was not only morally questionable; it was also laughably hypocritical given the greater context of higher education’s priorities.

          Ms. Kett’s actions and DSS’s subsequent involvement in the police investigation become even more perplexing when one considers the effects of the legal revolution on College alcohol policy. As it currently stands, the stated purpose of Dartmouth’s regulations is not to crucify students who drink a responsible quantity with a three-course meal. Instead, it focuses on reducing risk and encouraging students to make safe choices. A synopsis of the policy posted on the website of the Undergraduate Judicial Affairs Office explains:

We are concerned about the health and safety of members of the College community. As part of Dartmouth’s overall alcohol education efforts, the College alcohol policy aims to deepen student awareness of the problems that the abuse of alcohol can create, and to involve the College and members of the College community in helping to alleviate these problems whenever possible. The College’s primary goals in this area remain educational ones: to develop alcohol guidelines that are clear, readily understood, consistent, and equally applicable to all students; to create a non-coercive social environment for those who choose not to drink; to promote moderation, safety, and individual accountability for those who choose to drink; and to maintain a community where the effects of alcohol abuse and the problems of behavior associated with it are openly discussed. Therefore, all members of the community need to be mindful of their responsibility to lend assistance to others in need of help because of a problem relating to alcohol.

In light of the facts of the case, can it really be said that Dartmouth’s treatment of Barry aligned with the “educational” aspirations of the above policy? Given that his detention and ultimate arrest were precipitated by the machinations of a concerned employee, enabled by the high-tech incursions of DSS, and exacerbated by the unscrupulous behavior of two snoops in Dick’s House, we at The Dartmouth Review would answer in the negative unconditionally. 

            It must be stressed, however, that this is no way a validation of underage drinking or Barry’s decision to purchase alcohol with a falsified identification. To the contrary, we believe that his actions were wrong, dishonest, and unbefitting of a Dartmouth undergraduate. Where we take issue with the College’s response, though, is in its decision to abandon educational ideals and punish a sophomoric mistake with the most draconian of measures. As is so often the case, we believe that moderation contains the best solution, and had Ms. Kett simply approached Barry at the time of his indiscretion and taken the posture of a concerned parent, all parties would be no worse for the wear. Instead, she and her colleagues reverted to the harshest of measures and worked actively to ensure reprimanding him became the burden of the Hanover Police and society at large. In so doing, she not only relied on the retrograde legal tactics of the in loci parentis of old, but she also renounced the highest principles of the modern College and its efforts to proactively shape tomorrow’s leaders. For that reason, Dartmouth and its employees must reevaluate the way in which they seek to protect students’ safety and enforce alcohol policies.  


— Nicholas P. Desatnick