No fun at Tufts

kissingI laughed out loud today at a news item I came across on the web.  Numerous national media outlets have reported that Tufts University has adopted a new dormitory policy that students

may not engage in sexual activity while your roommate is present in the room.  Any sexual activity within your assigned room should not ever deprive your roommate(s) of privacy, study, or sleep time.

Eeeeek!  After my gagging, laughter, and nostalgia for my college days subsided, the lawyer in me began to wonder.  Many universities require their unmarried first- and second- year students to live in on-campus housing, and many of these schools do not have private, single dorm rooms for all, or even most, of their students.  These universities are requiring 18- to 20-year-olds with raging hormones to share living quarters, in effect forcing them into awkward situations like the one that the Tufts sex policy is aiming to prohibit.  Is this… legal?

A host of related questions arise.  The Tufts policy of “no sex in front of your roommate” is undoubtedly reasonable.  But what about a university policy that prohibits any type of sex on campus?  And what about prohibiting only certain types of sex, such as sodomy?

The answer, at least with respect to sodomy, probably depends on whether we are talking about public or private universities.  As a state actor, a public university will likely run afoul of Lawrence v. Texas should it prohibit certain type of sex on campus and then tried to enforce it.  A total ban on sex at a public university would also be difficult to enforce, subjecting university personnel, who are state agents, to § 1983 suits.  This says nothing, however, of a private university’s authority to regulate sex in its dormitories.

But private institutions have significantly more leeway.  In Gott v. Berea College, the Supreme Court held that a university, as in loco parentis, had the authority to issue rules that students were obliged to follow.  “[O]ne who enters as a student impliedly agrees to conform to such rules of government.”

Of course, the university’s general authority are bound by constitutional limits and must not conflict with a student’s First Amendment, Fourth Amendment, or Due Process rights.  But, within constitutional bounds, a private university has wide authority to enact and enforce its own rules.

Can a rebellious student make out a case for a constitutional right to have sex in the dorm room?  Such an argument is dubious.  Unless the university’s enforcement mechanism is egregious, it is hard to see the courts siding with the students.

What, then, about trying to opt out of the dormitories altogether?  Unfortunately, the same Gott rationale apply.  Courts have uniformly upheld university policies that require unmarried underclassmen to live on campus, despite a handful of challenges from students claiming that such policies violated their right to privacy, freedom of association, equal protection, or first amendment right to religion.  The Second Circuit dismissed the lawsuit of the “Yale Five”—five orthodox students who challenged the university’s requirement that unmarried freshmen and sophomores live in co-ed dorms—on grounds that Yale is not a state actor and not required to comply with the Fair Housing Act and to accommodate the students’ “unique religious preferences.” The Court based part of its analysis on the fact that the students knew about the policy before they enrolled and could have chosen to go elsewhere.  The Eighth Circuit applied rational review to University of South Dakota’s separate housing policy for its married and unmarried students and concluded that the university had ample justification for classifying its students in this way.

Such a ban would indeed be difficult to enforce, but not impossible.  In the criminal context, students do have the expectation of privacy in their dorm rooms.  The police, absent probable cause, cannot simply barge into a dorm room, even a shared one, without a warrant.  But courts have distinguished university personnel entering the dormitories in accordance with university policy, even the campus police performing administrative searches, from the police acting as an agent of the state.

So it seems that, at least under existing case law, very little would prevent a university from requiring all of its students live on campus while enacting a total ban on sex in its dorms and vigorously enforcing that prohibition.  How realistic is this worry?  Are there universities out there who are already prohibiting sexual activities wholesale within their dormitories?

10/2/09: update: per an excellent suggestion, I have added links to cases that I talk about in this post.  Click away!

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