Under Color of Law: What rights do college students have against campus police?

What legal rights do college students have against campus police? Are they entitled to due process and constitutional restraints on police action, or can the school discharge punishments as it wishes? Americans expect that when they are arrested, the government will not deprive them of life, liberty or property without fair opportunity to influence the outcome. On college campuses nationwide, however, the subversion of this basic tenet is the rule rather than the exception.

In 2007, Brown University suspended Joe Klunder, a student accused of making threats against other students, from its campus. He returned the next semester and shortly filed suit against Brown for violating his civil rights. Now, the U.S. District Court for the District of Rhode Island will hear a case with enormous implications on the status of security officers at private colleges. Its verdict could have enduring consequences on security policy and student-officer relationships at thousands of institutions of higher education nationwide.

In 2007, Klunder, who graduated from Brown in 2010, had an altercation with several noisy fraternity brothers who were disturbing him at night. During the confrontation, Klunder said he was “concerned that someone would be stabbed during an altercation” and “expressed this fear,” according to his complaint. The students, who were black, construed his remarks as threats of physical violence. After facing a disciplinary hearing, Klunder was arrested by Robert Enos of Brown’s Department of Public Safety, and banished from campus, which Klunder’s lawyer says amounted to false arrest and holding without charge. Enos forced Klunder to remain in a hotel room overnight, prohibited him from stepping foot on university property in Providence and ordered him to leave Rhode Island -measures the university had no authority to take, claims Lee Blais, Klunder’s attorney. As a sworn police officer (an officer who is certified by the state), Enos had legal authority to arrest and detain Klunder. Ordinary campus security personnel enjoy no such powers. Klunder could have suffered harsh legal consequences by disobeying Enos’ orders. “A police officer told him to stay in the room and then to leave the state,” Blais says. “One might presume that he would have been arrested and charged [had he disobeyed], possibly with trespass.”

In Klunder v. Brown University Klunder charges Enos, Brown and its President, Ruth Simmons, with violating his civil rights. He is bringing suit under Section 1983 of the Civil Rights Act of 1871 , which allows individuals to seek damages from persons who violate their constitutional rights while acting “under color of state law. ” The statute normally applies exclusively to government agencies or employees, but Klunder argues that Brown is liable under the law because it operates a police department exercising “full police powers, ” a public function traditionally reserved for the state. Klunder underlines the hazy status of campus security officers under the law.

The Constitution only protects citizens from actions undertaken by government, not private entities. Americans’ constitutional rights during police encounters – such as the right against unreasonable searches and seizures or the prohibition on detention without trial – do not apply during interactions with private law enforcement officers. At the heart of this case lies the question of whether safety officers at private universities are state actors operating under color of state law, purporting to act in the performance of official duties under the law “regardless of whether or not the act is within the limits of [their] authority.” If so, their behavior may become subject to constitutional restraints on state action. At many schools, security agents play a dual private/public role, acting as both institutional guardians and sworn police officers exercising state powers, sometimes simultaneously.

This question is increasingly pertinent in a nation where an ever-expanding population of students pursuing higher education requires increasing numbers of security officers to protect them. The percentage of schools nationwide employing armed guards increased from 66 percent to 72 percent between 1995 and 2005 , while the percentage of schools using sworn police officers also increased.

Brown Police Chief Mark Porter says the move toward greater on-campus security began in the late 1960s in response to campus demonstrations and accelerated after the 2007 Virginia Tech shooting. University police departments can respond to on-campus incidents more quickly than their municipal counterparts, Porter says, and give schools greater discretion in adjudicating misdemeanors and minor policy infractions. Police officers must meet higher training and educational standards than ordinary security forces, and can develop stronger relationships with students and faculty than city police. To be sure, many of these benefits undoubtedly accrue to students as well.

Brown’s Deputy Counsel James Green asserts that the university is not subject to Section 1983 jurisdiction. The school insists Enos operated as a Brown security agent, not a sworn police officer, throughout his dealings with Klunder. Green notes that Klunder originally filed claims against eleven Brown faculty, most of which were dismissed before trial. On July 13, District Court Chief Justice Mary Lisi dismissed complaints against nine defendants, but permitted those against Enos, Simmons and the university to move forward, declaring that there was insufficient information to determine whether Public Safety officers act under color of law.

Sheldon Nahmod, a professor of law at Chicago-Kent College of Law, believes Klunder makes a compelling argument that Brown’s Public Safety officers are indeed state actors. The issue depends on whether Rhode Island delegated its traditional law enforcement function to Brown. Nahmod says Brown police may be constitutionally liable for actions taken in the line of duty if they are found to be the legal equivalent of police officers. Under Rhode Island law, the superintendent of state police may “appoint qualified employees of those institutions [of private education] as special police officers, ” who “may exercise… the same powers and authority of a police officer.” The case, Nahmod says, “is quite important going beyond this particular decision,” because a favorable ruling for Klunder would almost certainly subject private university security officers to constitutional limits on state action. “The stakes are pretty high,” he said.

Bradley Silverman

Bradley Silverman is a junior at Brown University, where he is studying public policy, economics and political science.