William Hoye
Executive Vice President, General Counsel, & COO, IES Abroad
Natalie A. Mello
Vice President, Member Services and Training, The Forum on Education Abroad
An earlier version of this paper was presented by the authors at the 2015 Annual Conference of the National Association of College and University Attorneys and appears in the NACUA Annual Conference Proceedings, June 28-30, 2015 Washington, DC.
Introduction
In joining The Forum on Education Abroad, universities and organizations affirm their commitment to the Standards of Good Practice for Education Abroad. This article provides some important legal implications for colleges and universities, focusing particularly on what it likely means, legally, for a higher education institution not to comply in some of its own international programs and activities with the standards of an organization of which it is a member; and which has been designated by the Federal Government as the organization that sets the standards for the field of education abroad.
As Forum Focus readers know, The Forum on Education Abroad is a 501(c) (3) non-profit, membership association recognized by the U.S. Department of Justice and the Federal Trade Commission as the Standards Development Organization (SDO) for the field of education abroad. Widely understood, an SDO is an organization whose primary activities are developing, disseminating, revising, and re-releasing standards that are intended to speak to the needs of a field of practice. As noted in The Federal Register:
The nature and scope of The Forum’s standards development activities are: (1) To develop and present voluntary consensus standards for education abroad programs, for domestic colleges and universities and entities in other nations that provide or partner in providing education abroad programs for students from U.S. colleges and universities; and (2) to present standards and methods for assessing performance against the standards that can be used by the smallest and simplest organizations interested in self-improvement, through to the largest and most complex organizations in the education abroad field.
The Forum’s mission is to develop and disseminate comprehensive Standards of Good Practice for the field of education abroad. The first editions of the Standards (2004 and 2005) were developed in response to feedback from education abroad professionals, various higher education groups, government officials, and institutions and organizations around the world. The later editions (2008, 2011 and 2015) strengthened the Standards, based on evolving understandings of effective practices, changing on-site realities, and input from an ever-expanding range of constituents. In 2011, The Forum developed an online Standards Toolbox, a resource created to support Forum member institutions in their implementation of the Standards by supplying vetted examples of actual best practices used in the field.
What are The Standards of Good Practice?
The Standards of Good Practice for Education Abroad support the complex responsibilities inherent in offering education abroad opportunities to students. They act as a means to develop, manage, assess and improve education abroad programming. As a commonly-developed and accepted set of standards, they provide a framework for accountability. The nine Standards are articulated and structured in specific and intentional ways.
Each Standard is structured by:
- Statements: the broad principles of the Standard, detailed in bullet points. These define the baseline best practices that should be observed by any entity operating within the field of education abroad, according to their type of education abroad activity.
- A set of Queries following the Statement: prompts for evaluation, designed to elicit a response that demonstrates how the Standard is being met and encourages discussion rather than a yes or no response.
Supporting each Standard are:
- Fundamental elements: a dynamic feature defining essential expectations of implementing the Standards;
- Member Resources: a resource featuring best practices, keyed to the Standards. These examples are vetted by The Forum’s Standards Committee, and are made available exclusively to Forum members,
- Standards Guidelines: guidance that contextualizes various specific areas of education abroad practices, particularly where these practices may differ from the same practice in the home campus context.
Click here to see the entirety of the Standards and how this structure works to ensure that the depth and breadth of issues are addressed.
Standard 8: Health, Safety, Security, and Risk Management
College and university attorneys reviewing the Standards may well have the greatest interest with respect to Standard 8: Student Health, Safety, Security and Risk Management. In pertinent part, Standard 8 reads:
Health, Safety, Security and Risk Management: The organization assures continuous attention to the health, safety and security of its students, faculty, and staff, from program development stages through program implementation by way of established policies, procedures, student orientation, and faculty and staff training. [Emphasis added]
Undoubtedly, protecting the health, safety and security of students participating in an international program sponsored by the university is a shared value across the entire campus. But a pledge to “assure continuous attention” to student, faculty, and staff health, safety, and security–not only off-campus but abroad—might be construed as tantamount to assuming a higher legal duty than otherwise would be legally required.
At common law, the duty higher education institutions generally owe to their adult-aged students is to exercise reasonable care to help reasonably protect their students against reasonably foreseeable harm. That is a lower bar than “assuring continuous attention” to student, faculty, and staff members’ health, safety, and security. Similarly, the language in Standard 8 about assuring health, safety, and security via “established policies, procedures, student orientation, and faculty and staff training” may not be happening on all Forum Member School campuses. Even on a particular campus, the level of time and effort brought to bear on these issues in connection with one international program may be less than continuous and may be uneven across programs, departments, colleges, institutes and centers of a university. Faculty-led programs, service learning projects abroad, internships abroad, and ad hoc international research projects funded by the university for a summer, for example, may not receive the same continuous attention as recurrent semester international programs with staff on the ground receive.
From a legal standpoint, with the myriad of diverse programs and activities undertaken by a modern research university, it may prove difficult in practice (despite good intentions) to “assure” “continuous attention” to these issues. In fact, when something goes wrong and a student is injured on an international program sponsored or funded by the university, it’s possible that the injured student or his or her lawyer may cite Standard 8 as an “industry standard” (see section IV below) and allege as evidence of negligence the alleged failure to comply with Standard 8 in the context of the injured student’s injury. As many defense lawyers know, it’s difficult to “assure continuous attention” to anything, and people do make errors in judgment and mistakes. Making sure legal counsel are aware of Standard 8 and its requirement, so they can indeed help assure continuous attention on campus to the health, safety, and security of their students, faculty, and staff in building and delivering international programs should be a very high priority. These steps will help substantially enhance student health, safety and security abroad.
What does it mean to be a Member of The Forum?
The Forum is an institutional membership association and welcomes as members all institutions of higher learning, consortia, agencies, and organizations who are committed to improving education abroad. Members join a community of dynamic, thoughtful dialogue about the issues facing the field of education abroad.
When an institution becomes a member of The Forum, a commitment is made to support and uphold the mission of The Forum, specifically:
Statement of Support and Commitment
Members agree to uphold the mission of The Forum on Education Abroad by: advocating for Standards of Good Practice; promoting high-quality curricular development; encouraging outcomes assessment; supporting research and data collection; and, engaging in advocacy of education abroad at all levels. By completing this application, I affirm that the institution or organization named above is committed to The Forum’s Standards of Good Practice for Education Abroad as they relate to the mission of the institution or organization.
What does it mean, legally, to agree to comply with the standards of an organization of which you are a Member? As noted above, each of the over 700 member institutions of The Forum affirm, in signing the membership application, that their institution or organization “is committed to The Forum’s Standards of Good Practice for Education Abroad as they relate to the mission of the institution or organization.”
Is committing to an organization’s standards tantamount to agreeing to comply with them? Does joining a membership organization that promulgates standards for a field legally obligate the Member to comply with the organization’s standards? What if the Member is joining a membership organization that is the governmentally-designated standards-setting organization for its field? Would that lend support to a position that the institution is legally obligated to comply with its standards? If so, what happens if the Member fails to comply and a student is harmed in the course of the Member’s non-compliance with a standard? Could such an instance of non-compliance be used against the Member in a court of law?
To begin this discussion, it’s important to first understand what a “standard” is or means. According to the dictionary definition, a standard is “… a level of quality, achievement, etc., that is considered acceptable and desirable.”
It seems unlikely that a higher education institution’s failure to comply with The Forum’s Standards would rise to the level of negligence per se. That’s because negligence per se generally requires “conduct that automatically constitutes negligence under the provisions of a law.” Because a standard is not a law, it would seem to logically follow that non-compliance with an industry standard alone does not, a fortiori, constitute negligence per se. But what if the standards at issue are being set by an organization that is the governmentally designated standards-setting organization for a field, sector or industry? Is that link to governmental action, or a government imprimatur on the standards-setting organization similar to a government enacted regulation or statute? Probably not, because even a standard adopted by a government designated standards-setting organization is still not a statute or regulation. But even if non-compliance with a standard doesn’t rise to the level of negligence per se, the analysis does not end there. That’s because non-compliance with an industry standard still might be used as evidence of negligence, even if it does not constitute negligence per se.
Although research has not revealed cases holding members of a government designated standards-setting organization per se negligent for failing to comply with its standards, there are cases where such non-compliance has been recognized as evidence of negligence. By way of example, there are a line of product liability (negligence and strict liability) cases that apply a “risk-utility test,” which measures industry standards against the reasonable person standard applied in negligence cases. Brooks v. Beech Aircraft Corporation, 902 P.2d 54 (S.Ct. NM 1995) is illustrative. In that case, a surviving spouse sued a plane manufacturer in a wrongful death action, claiming that the absence of a shoulder harness in the plane caused her husband’s death upon its crash. Although Federal Aviation Administration (“FAA”) regulations did not require the installation of shoulder harnesses in aircraft at the time of the plane’s manufacturer, the Defendant and others in the industry had customarily installed shoulder harnesses in their planes at the time of manufacture.
According to the Court, a design-defect claim may be proved through a combination of custom and usage standards and expert testimony without showing that the manufacturer’s design violated any applicable regulations or codes.
Similarly, in Jablonski v. Ford Motor Co., 2011 IL 110096 (Supreme Court of Illinois), the Plaintiffs suffered severe injuries and death from an explosion following a car accident. They alleged negligent design and strict liability in the design of a fuel tank placed near the rear of the car, when the industry standard at the time was to place the fuel tank elsewhere to minimize damage to the fuel system during a crash. The Illinois Supreme Court acknowledged that the duty analysis in a negligent product design case encompasses a risk-utility balancing test; and, that compliance with industry standards is a relevant factor in the analysis as to whether reasonable care was exercised in designing a product. This finding suggests that compliance with an industry standard can be used by members of a standards-setting organization in their favor in defending a negligence or strict liability case.
Finally, Howard v. Omni Hotels Management Corp. and Kohler Co. (Ct.App. 4th 2012) involved a Plaintiff who slipped in a bathtub manufactured by Kohler at a hotel. He sued Kohler for negligence and strict liability. The Plaintiff alleged the bathtub was defective because it did not comply with applicable industry standards, including standards provided by two trade associations: the Associated Society of Mechanical Engineers (ASME) and the Associated Society for Testing and Materials (ASTM). According to the Court, Kohler’s adherence to industry standards was a factor that could and should be considered in summary judgment proceedings, holding that while evidence of compliance with industry standards is not a complete defense, industry standards should be considered in addition to expert testimony regarding whether the defendant exercised reasonable care in a negligence action.
Taken together, these product liability cases suggest that non-compliance with an industry standard can be used as evidence of a Defendant’s negligence in some contexts. At the same time, these cases suggest that compliance with industry standards can be used as a shield by a Defendant as evidence that the Defendant was not negligent because it was complying with an industry standard.
In the higher education sector, the recent case of Professional Massage Training Center v. Accreditation Alliance of Career Schools and Colleges, (4th Cir. March 24, 2015) may be instructive. ACCSC is a private accrediting agency, which denied the renewal of PMTC’s accreditation, thus denying them access to federal funding. PMTC sued for various claims, including a violation of due process rights and breach of contract. Notably, the court held that the Standards of Accreditation at issue did not constitute a binding contract between the agency and the accredited educational institution. In part, the court found, that is because the ACCSC (accrediting agency) could alter the standards at any time. That may be good news for higher education institutions in terms of potential contract claims, because it provides members of standards-setting organizations with an argument that there may not be a contractual relationship between members and the organization since the latter can unilaterally change its standards at will. This does not provide much help on the negligence front, though, where a Member’s failure to comply with the standards could well be considered to be evidence of negligence if it proximately causes injury or harm to a student in the course of an international program of the Member institution. But it could help defeat a contract claim asserting that members of a standards-setting organization are contractually bound to comply with its standards.
At the end of the day, it seems likely that failure to comply with standards set by the study abroad field does not constitute negligence per se. However, such a failure may well constitute evidence of a Member’s negligence in the form of failing to follow an industry standard. The summary of The Forum’s Standards states that they act as a means to develop, manage, assess and improve education abroad programming, and that as a commonly developed and accepted set of standards, they provide a framework for accountability. One could easily argue that The Forum’s Standards are industry standards which can be taken into account in a negligence analysis. This potential argument is bolstered by the fact that The Forum is the Federal Government’s designated standards-setting organization for the education abroad field. As a practical matter, judges and jurors armed with the benefit of hindsight could well expect that a Member of a membership organization that has and sets standards is duty bound to comply with the organization’s published standards. This suggests that the failure to do so might be used against a Member in a court of law as evidence of the Member’s negligence.
For this reason and others, making sure a higher education institution that is a Member of The Forum on Education Abroad is aware of, and in compliance with, The Forum’s Standards is one of the best hedges against potential legal liability in this context.
Unfortunately, though, not all university attorneys are familiar with The Forum on Education Abroad or aware of the Standards. Nor are they necessarily aware that The Forum has been designated by the United States government as the designated standards-setting organization for education abroad. It’s critically important that college and university attorneys become aware of these important facts so they can help convince their institutions to build and deliver safe, healthy, and secure experiences abroad for their students participating in university sponsored international programs.
One complicating factor in this important area is that there tends to be unevenness of compliance with The Forum’s Standards across some colleges and universities. It is not uncommon, for example, for a Member to be compliant with the Standards in the education abroad office and with respect to its sponsored international programs, but to be non-compliant in other international programs or activities administered or sponsored by individual faculty members, by other colleges within the university, or by other institutes, centers, or departments on campus. Unevenness of compliance with applicable standards across a campus could well be used against Members, because compliance in one department of the campus demonstrates that the institution is capable of complying with the Standards. If all segments of the institution are not in compliance, this is problematic. Unfortunately, compliance with the Standards in one set of international programs on a campus could be used against the institution as a whole if it is not similarly complying with respect to other programs sponsored across the campus. University counsel can help address this problem by informing the campus community of the Standards, by promoting compliance with The Forum’s Standards across the entire university, by bringing together their many and varied clients on campus who are involved in international engagement, and by developing and implementing a multi-faceted, multi-departmental system or plan for institutional compliance with the Standards in each university-funded or sponsored international program or activity. Such an effort could pay huge dividends, not only in terms of reducing an institution’s potential legal liability, but also (and most importantly) in helping to make sure the institution provides safe, secure, and healthy university-sponsored international programs and activities for all of its students, faculty, and staff.
What does The Forum provide?
Alongside its development of standards, The Forum has created two signature programs of quality assurance for education abroad, the Quality Improvement Program (QUIP) and the Professional Certification in Education Abroad Program, as the primary ways that the Standards of Good Practice are implemented to benefit institutions and organizations, the field of education abroad, and students. Based on U.S. higher education processes, QUIP provides Forum member institutions with a means of knowing if their education abroad programs are in conformity with the Standards. The Professional Certification in Education Abroad further enhances quality assurance by validating that individuals have knowledge of and expertise in applying the Standards of Good Practice. The Quality Improvement Program for Education Abroad (QUIP) and The Professional Certification for Education Abroad Program provide quality assurance for the field through use of the Standards in rigorous self-study and peer reviews for institutions and professional certification for individuals.
Completion of the QUIP process is the most effective way to achieve quality assurance in education abroad programming. This process provides organizations a means to assess how their programming conforms to the Standards of Good Practice for Education Abroad. Participating organizations receive practical guidance to improve the quality of education abroad programming at the institution or organization, and successful completion of QUIP means that the organization is in conformity with the field’s Standards of Good Practice.
The institutions and organizations that have successfully completed the Quality Improvement Program for Education Abroad (QUIP) and found to be meeting the Standards of Good Practice for Education Abroad at the time they went through the QUIP Review are listed on The Forum’s website. QUIP recognition is valid for eight years, after which organizations must go through a complete review again in order to maintain recognition. Organizations are required to furnish an interim report four years after a review in which they analyze the current state of their education abroad operations and how they are continuing to meet the field’s Standards.
The Professional Certification in Education Abroad program is intended for colleagues in the field who want to certify their knowledge and expertise in the Standards of Good Practice for Education Abroad. Participants complete six modules based on the nine Standards of Good Practice and a Culminating Project. Participants in The Forum Professional Certification in Education Abroad program are required to complete workshops and specially-designed assignments. Modules can be accessed online or by attending Forum workshops located in the United States and abroad. Participants who complete the certification are recognized on The Forum’s website and may utilize The Forum’s “Certified Professional” Mark. Once certified, colleagues continue to pursue further professional development opportunities in order to maintain active certification status. Certification in education abroad validates fundamental knowledge of the Standards of Good Practice for Education Abroad, recognizes the ability to articulate and to apply the Standards, establishes advanced capabilities in analysis and synthesis of the Standards, and demonstrates a commitment to professional excellence and ethical conduct.
The Forum Professional Certification in Education Abroad is a vital contribution to improving the quality of the education abroad field as a whole. The Forum Professional Certification in Education Abroad is a voluntary demonstration of competency, and as such demonstrates a commitment to professional excellence and ethical conduct. Senior administrators can be assured of the quality of The Forum Professional Certification in Education Abroad Program and know that their personnel have been certified by the Standards Development Organization for the field of education abroad. Certified individuals will contribute significantly to the goal of ensuring high quality education abroad programming at institutions and organizations. Through their application of the Standards of Good Practice, certified professionals ensure quality education abroad programming, making
In addition to the formal quality assurance programs described above, The Forum provides an array of training opportunities to practitioners in the field. The organization convenes an annual conference, a European conference every two years, full day Standards Institutes and multi-day Fireside Dialogues on issues of concern to the field, Standards-based workshops and periodic webinars on timely issues that may arise due to current world events. Each of these events makes available training in a variety of modalities on critical issues in the field of education abroad.
The Forum’s role as a Standards Development Organization has evolved and matured over nearly ten years of effort to improve the education abroad field’s practices. This work of developing a common set of Standards that are recognized as the definitive means by which education abroad programs may be evaluated is ongoing. The Forum continues to create new and expanded ways to educate and train institutions, organizations and individuals so that they continuously improve how they develop, manage, evaluate education abroad programming. Ultimately, the result of The Forum’s efforts help ensure that students’ education abroad experiences are as rewarding and meaningful as possible.
