From the issue dated February 22, 2008 

Love v. Morehouse College (2007)

Should Colleges Be Sued for Harboring Intolerance?


Gregory A. Love, then a student at Morehouse College, in Atlanta, was beaten in 2002 with a baseball bat by a fellow student in a dormitory shower after Love made what his attacker perceived as a homosexual advance. The attacker was later convicted of aggravated assault and battery.

Love sued Morehouse, arguing that the all-male, historically black institution was liable for his injuries because it had fostered intolerance toward gay students and had "consistently fail[ed] to address complaints of homophobia" and harassment.

Status: In a decision last October, the Georgia Court of Appeals reversed the trial court's dismissal of Love's case. The appellate court held that Love's claims, if supported by evidence, could entitle him to damages from Morehouse. The case will go to trial in the coming months.

Implications for higher education: As landowners, all colleges and universities must take reasonable steps to protect those on their premises against foreseeable threats to their safety. This case takes a hoary principle of negligence law  that if you turn a blind eye to a problem, you may find yourself liable for the consequences  and applies it to a modern concern: the treatment of gay students.

Love claims that Morehouse officials created, or at best willfully ignored, "an atmosphere of hatred and violence" toward gay people or those perceived to be gay. Heterosexuals at Morehouse, he told the court, enjoy "an atmosphere of entitlement and security in knowing that administration, faculty, and staff will neither punish nor reprimand offenders for acts of harassment or intolerance" against gay students.

To Morehouse, this case is not about campus safety, but rather about whether a college can be summoned into court for failing to promote what it calls a "social agenda of tolerance." "[W]hile a college owes a duty of reasonable care to its students," Morehouse wrote in its brief, it does not "bear a heightened duty or responsibility for matters of morals and virtue," which it said were "the true basis of the underlying assault here." Such a duty, it said, would be comparable to "holding the colleges and universities liable that graduated the executives of Enron."

The court of appeals sided with Love, holding that he should have the chance to present his case to a jury. Evidence may show, it said, that Morehouse knew about problems of harassment, and that "it was reasonably foreseeable that such harassment could escalate into violence."

Although this decision is law only in Georgia, victims of similar assaults could ask other courts to adopt the same reasoning. And while Love involved a student perceived to be gay, there's no reason a plaintiff couldn't advance the same theory in a case involving race, nationality, or other characteristics.

The case also raises the specter of clashes between campus climate and institutional identity. What if an institution was sued under similar circumstances, but argued that its religious affiliation required it to disapprove of homosexuality? Or could a woman who suffers sexual assault on an all-male campus seek to hold the institution liable because it allowed degrading attitudes toward women to fester?

Although the Georgia court's opinion arguably creates a new legal duty, the boundaries of that duty  and exactly what colleges must do to fulfill it  remain unclear. If courts in other states find the reasoning of Love persuasive, it could mean that teaching tolerance and combating harassment  long seen as vital to campus health and civility  become legal imperatives as well.

Steve Sanders is a lawyer in the Supreme Court and appellate-litigation practice of Mayer Brown LLP, based in Chicago. He previously served for 15 years in administration at Indiana University at Bloomington.
Section: Commentary
Volume 54, Issue 24, Page A31