It may not quite be the cultural revolution of the 1960s, but the atmosphere on America’s college campuses has undergone a decided shift in that direction. Heightened tensions regarding race, gender and, most recently, the highly charged 2016 presidential campaign have fueled an influx of protests across the country and heightened the need for solid insurance coverage from property to educators legal liability.
In a sense, protesting on campuses is a matter of course and even a rite of passage for young adults. Restrictions on time, place and manner typically head off any significant disruptions, and an increase in college security has lowered the risk profile of many institutions.
The character of recent public discourse, however, warrants a reexamination of how public universities are responding to political and cultural tensions, says Robb Jones, senior vice president and general counsel for claims management at United Educators.
“We counsel our members to extend tolerance, sensitivity and to preserve a sense of history,” Jones told
Insurance Business America. “If you encourage that, you’ll be fine. But, if you misstep or stifle speech, you could invite the media spotlight and cause reputational damage.”
Take the recent wave of Colin Kaepernick-inspired protests – after the San Francisco 49ers quarterback began refusing to stand during the national anthem at the start of games, college athletes and other students began mimicking his actions to protest oppression of black people and other non-white races.
Most recently, members of the Marching Pirates band at East Carolina University began kneeling during the national anthem. The incident caused a stir, and while school officials expressed their commitment to free speech, they did not safeguard students’ right to do so while remaining in the band.
That decision will probably be upheld, Jones said, as courts have recognized a school’s right to draw a line between disruption and freedom of expression.
Issues during other race-related protests are not so clear-cut. In late September, a student at East Tennessee State University was arrested after wearing a gorilla mask and carrying a banana during a Black Lives Matter protest on campus.
That could fall under speech that is not protected, Jones said.
“You have to expect some rough-and-tumble speech, but there are fighting words, hate speech and symbolic speech that isn’t protected,” he said. “[This incident] was inappropriate.”
The line between protected speech and hate speech is also being questioned during the 2016 presidential election. Though protests on campus are a matter of course during any general election cycle, the tone of the 2016 season and perceived character of the candidates have raised questions over what is appropriate.
Support for Republican candidate Donald Trump’s calls for the construction of a wall along the US-Mexico border, for example, have provoked highly charged responses and some people “react violently,” said Jones.
“The line is not always clear. Not every judge will agree with another judge,” he said. “The remedy is usually more speech – chancellors and other figures adding speech as opposed to curbing speech.”
Insurance policies covering campuses, including ELL and general liability, will provide coverage for such wrongful acts resulting in litigation and even civil rights damages if the university loses its case. In certain states, punitive damages may also be covered. Injunctive relief, which could result in retraining for all staff members, is not.
General liability policies could also come into play if college security uses excessive force and bodily injury is incurred. However, some carriers may include exclusions relating to protest or the use of force.
The message to insurance agents, then, is to double-check coverage and engage in risk management. Carriers in the space are increasing their outreach through online learning and other education, offering legal tools and risk control advice to education clients.
“At United Educators, we write seamless coverage so our members get the benefit of both policies and a lower deductible,” Jones said. “We also address a full range of risk management issues driven by the claims we’re seeing and what’s topical.”
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