International Study
International Study:Reflections on Liability and Cultural Immersion
Bryan Beverly EAD 872 Michigan State University
11/16/2009
Review
The arena of higher education has continually crossed boundaries of both tangible and abstract definitions. Where modern learning often occurs within an outlined and contextually familiar environment, some seek to broaden their knowledge foundation with an examination of alternate or foreign perspectives. To this end, institutions of higher education have set about providing students with a diverse and multi-faceted learning experience- either through expanded cultural opportunities on campus or incorporating student international exposure into curriculum designs. While many colleges and universities are proactively diversifying their student population to assist with the former, several institutions are devoting considerable resources to develop the latter. Study abroad programs are becoming essential elements of university offerings that aid in institutional prestige, recruitment, and development. However, with the academic prospects of international study come significant legal challenges for the institutions.
Vincent R. Johnson has authored Americans Abroad: International Educational Programs and Tort Liability, a legal review of potential institutional challenges and ramifications regarding international study. Johnson notes, “[t]he proliferation of collegiate international study has been paralleled in American society by heightened concerns… about the risks of tort liability.” (Johnson, 2006, p.311) Americans Abroad acknowledges the current trend in American society to sue for damages at a higher frequency than ever before, and that the trend encompasses instances involving international study. Johnson recognizes that institutions are, “focused increasingly on the threat of being sued for damages based on actions or omissions related to college and university activities generally or to study abroad in particular.” (Johnson, 2006, p. 312) Johnson focuses the majority of the beginning of his article on contractual provisions between students and institutions regarding 1) choice of law, 2) choice of arbitration, or 3) choice of forum; each of these consider the limitations of American law in resolving tort claims involving international education programs. The latter portion of Americans Abroad deals more specifically with principles of tort law that referenced more closely with laws of American states- theories of responsibilities; negligence; and misrepresentation and breach of fiduciary duty. For the sake of this analysis and in the interest of practical relevance, attention will be placed on the latter portion of the article.
Johnson is careful to delineate the importance of cultural immersion in international study experiences rather than simply duplicating American educational practices on foreign soil. This immersion necessitates abandonment of any ideal of a risk-free international experience; rather, all education demands some form of risk- and foreign-based education increases the potential for harm and benefit. He states immersion in a foreign culture, “helps [students] to understand how other people live and why those people do what they do.” (Johnson, 2006, p. 316) These lessons learned abroad aid students in defining the traits that construct the frameworks of society; some of which can be discovered through lecture and study, but also must be ascertained through experience. In relating the benefits of travel, Johnson quotes Jonathan Weisberg from Arthur Framer: The Traveler at Home, “[t]he key objective is to experience events, lifestyles, attitudes, cultures, political outlooks, and theological views utterly different from what you encounter at home.”(Weisberg, 2005, p. 47) For Johnson, international experiences are paramount to a broad and informed perspective world view.
These experiences, when designed to incorporate the foreign “way of doing things”, should strive for a less-than calculated sampling of culture, wherein students are hand-held and over-protected from the environment in which they have chosen to study. Americans Abroad advocates sensible provisions for safety and risk management- where students are engaged in cultural exposure in a manner that is conducive to learning, but are also attentive to potential risks and hazards. Johnson proposes value added characteristics of successful international study programs will incorporate information dissemination to parents and students that is both accurate and useful; and implementation of practices that are recognizably responsive to minimizing risk to students from undue harm. (Johnson, 2006)
In establishing bases of liability in international educational programs, Johnson distinguishes frames of fault, respondeat superior, non-delegable duty, and ostensible agency for tort claims. Fault for educational programs is noted for claims of “negligent hiring, training, supervision, or retention of employees; negligent selection, retention, or discipline of participants; or negligent failure to protect [students] from hazards on a foreign premises.” (Johnson, 2006, p. 332) Programs are responsible for the conduct of their staff, as well as, that of the participants.
Respondeat superior is connected to international education programs in expansive terms, as employees’ duties are extended past general teaching time or regular work day expectations- even when compensation is not exclusively tied to duties performed. Institutions are responsible for the behavior and duty performance of their employees even when the conduct occurs outside of normally designated duties. This responsibility expands to conduct that may be considered as a mix between professional and recreational duties, where injured parties are under the impression that the conduct occurred during official events. Institutional accountability includes instances of touring excursions, entertaining other scholars, hosting events on behalf of the institution. (Johnson, 2006)
For international study programs, responsibility for the conduct of independent contractors is inordinately connected to the program for tort claims when the independent contractor violates a non-delegable duty. Whereas in the US, in most cases, institutions are not liable for the conduct of independent contractors, such is often not the case involving foreign study programs. These non-delegable duties encompass instances of hiring transportation for handicapped participants, excursion requiring special precautions, and/or transportation of participants in a recognizably dangerous country. (Johnson, 2006)
The concept of ostensible agency extends to international study programs where the injured party is led to believe that a transgressor was acting on behalf of the institution. Johnson perceives significant applicability to international study programs because boundaries of responsibility are rarely clearly outlined. This theory comprises instances where visiting faculty are responsible for accidental injury of participants and extends to various recreational endeavors that are highlighted by the institution as part of the promotion of the international study program. (Johnson, 2006)
Americans Abroad denotes negligence as the absence of reasonable care and foreseeability; balances negligence with the importance of context; and infers negligence as a deficiency with respect to customary practices. Reasonable care and foreseeability is indicative of the duty institutions have in implementing cost-effective procedures that prevent injuries to students while abroad. An evaluation should include a determination of the probability of potential harm and access to prevention opportunities. Contextual parameters align an institution’s duty of reasonable care to the maturity level of the program’s participants. International study programs should be mindful of industry standards of care and practice or risk a potential tort claim. Johnson maintains the importance of institutions to be cognizant of, and consistent with what other foreign study programs are doing with regard to student experiences and precautions.
Higher education institutions have an expectation to faithfully represent their intentions and ability to carry out a safe and educational international academic program. Misrepresentation of either intention or compliance ability leaves an institution open to tort claims where it can be determined that the institutions committed a breach of fiduciary duty. Information disseminated to students and parents should be both accurate and consistent with US Department of State Consular Information Sheets. Falsely portraying program’s foreign environment is deceitful in the eyes of the law and institutions are destined to be scrutinized heavily.
For his part, Johnson prescribes a formula for institutions to follow in order to avoid many of the legal tort pratfalls that accompany the establishment of academic programs on foreign land. Americans Abroad expressly underlines the importance for institutions to “take reasonable precautions to minimize the foreseeable risks of harm to program participants.” (Johnson, 2006, p. 316) Johnson rests the majority of accountability for a program’s success with personnel decisions the home institution makes. “[P]ersons chosen to direct and teach in foreign educational programs must have good judgment, must be willing to work hard, and must have adequate support from colleagues on site to enable the program to succeed.” (Johnson, 2006, p. 358)Furthermore, he suggests continuity of leadership and genuine care for the success and well-being of students are vital traits of effective international education. Again, Johnson is adamant about institutions and educators providing students with an extraordinary academic opportunity, but simultaneously attentive to legal liabilities.
Reflection
Future generations of higher education will incorporate a larger spectrum for internationalization in terms of globalized curriculum, governance, and participation. With the ever increasing acceptance of the role global interdependence plays in economic, political, and social dynamics, academe’s internationalizing function too has become more absorbent of interdependence. Most higher education administrators agree that in today’s increasingly globalized society both study abroad and internationalizing the campus are necessary components of a strong education (Lucas, 2008) and “the circulation of scholars and students worldwide... is part of the international knowledge system.”(Altbach, P., p.19)
My personal educational experiences incorporate a focus on a broadened and globalized perspective. Additionally, much of my research has been devoted to international study-either the impact of internationalized campuses or the effects of study abroad programs on American students upon returning home. During my undergraduate studies, I traveled to London, England with the Michigan State University College of Social Science where much of the focus was on the interdependence of nations and cultures. This program concluded exactly 3 weeks prior to the 2005 London bombings and our Underground Train Station for class was the target of one of the bombs, so I am fully aware of the potential dangers associated with international study. However, my experience in the UK only solidified my determination to bridge the gaps between opposing views among the world’s factions.
The lectures, tours, and excursion all helped to frame the more altering form of knowledge I was receiving through the daily contact with Europeans on the street, on campus, and in more socialized settings. Simultaneously, I participated in an internship program with the Centers for Academic Programs Abroad and was placed with the Hilton Corporation in the human resources department. This experience was extremely beneficial due to the direct exposure to European corporate structures and workforce. My overseas opportunity was indicative of Cultural Experiences Abroad’s mantra to “expand, explore, and experience.” (CEA, 2005) I believe my world view was, indeed, expanded through social and academic lessons acquired abroad that have prepared me to exchange ideas and cultural values with the rest of the world. I feel the exploration of historic and contemporary cultural icons further developed my sense of being and belonging while allowing for self-reflection and transition to a more enlightened student. The experience of living and working in another country provided invaluable understanding of the world and the relation of the US to the bigger, globalized picture.
In 2008, I participated in a group research project focused on international study that contributed an idea of transformative experience to the notion of overseas study. We defined a transformative inter-cultural experience as one that 1) Goes beyond the superficial, 2) Involves knowledge of people who are different from yourself with, 3) Varying degrees of difference, and 4) Allows for self-learning & self-reflection that can lead to personal changes. (Beverly, Eaton, Liu, Mattingly, & Wise, 2008) Each of these variables follow Vincent Johnson’s notion of cultural immersion in international programs goes beyond what is already being experienced on US campuses for the sake of the student’s learning capacity. Where a student is allowed to step outside of his or her current “box”, true learning can occur and value is placed on the entirety of the experience.
Likewise, Johnson’s concerns about the legal ramifications of study abroad programs were realized during my time abroad. Similarly, his encouragement for experienced and thoughtful supervising faculty was also a principal element in the success of my personal study abroad program. Throughout his article, Johnson acknowledges the liability of the home institution in administering a safe and successful program. Americans Abroad describes several instances of tort claims involving students receiving medical attention while overseas. Thankfully, the health system in England is such that no one in my cohort received inadequate medical care, but the article did allow me to reflect on several instances in which students were sent to the hospital for conditions, some self-induced (alcohol poisoning, exhaustion) and others coincidental (kidney infections, sprained ankles). The care with which the faculty handled each situation, both from a preventative stand point before hand (communication of potential problems), and during the moments when medical attention was necessary (communication with parents and a presence at the hospital) was priceless.
Likewise, students were constantly reminded to take care in traveling around the highly populous neighborhood, to not invite strangers into our living environment, and be cautious of the surroundings. The informative aspect of the program was not only academic, but also beneficial on a social level. We were notified of the proper procedures in reporting crime or threats and this information was helpful when one of my cohort’s apartment was broken into and when a group of my colleagues were being harassed by a few, less friendly locals. The experience of the faculty was tremendously supportive in dealing with the daily obstacles of living in London. The faculty’s experience also provided for safe and informative excursions to Scotland and Stonehenge- each trip being absent any viable threats to security or wellbeing.
Michigan State University consistently touts the effectiveness and quality of its international programs, “For the fifth year in a row, Michigan State University leads the nation in study abroad participation among public universities in the United States, according to Open Doors 2009, the annual report on international education released today by the Institute of International Education.” (MSU, 2009) The emphasis the institution places on international study is second to none among public universities and the University President, Dr. Lou Anna K. Simon has advanced MSU’s mission to become the first “world-grant” institution. For MSU to be so visibly involved in the promotion of their international education programs, the prospects for claims of misrepresentation are considerably high. Yet in my view, the institution not only seeks to provide quality programming, but also takes necessary steps to inform and educate students prior to embarking on international travel, and is consistent with those same messages of safety and security throughout the experience. MSU sets the industry standard for international education and the level of expertise and experience demonstrated by the supervising faculty during my time abroad was indicative of exemplary service and preventative of any potential challenges for tort claims.