Potential Legal Issues for College Students: Traps for the Unwary

By James L. Rudolph

Whether your child is a senior in high school about to start college next fall or presently a college student, at some time in the next few years, there may be legal issues affecting you and them. This article addresses the following potential issues that may concern parents and students: alcohol and drugs, fake IDs, credit cards, pranks, social networking and defamation, gambling, cheating/plagiarism, date rape, copyright infringement, landlord/tenant issues, and harassment and discrimination. Additionally, it gives general advice on how to respond to potential legal issues.

Alcohol and Drugs
College students find new ways to get into trouble every year, but the biggest recurring theme is alcohol. As a minor, underage drinking by a student can carry with it serious consequences. While state laws and school codes of conduct vary, underage drinking is almost always an arrestable offense at the discretion of the officer and more often than not will be reported to and punished by the school as well. Additionally, in some states there are “in possession by consumption” laws. This means that a minor can be charged with possession of alcohol if it is in their system, regardless of whether or not they have an alcoholic beverage on them at the time.

For students who are twenty-one and over, it is important to remember that because it may be legal to drink, it is not legal to do whatever one wants while drinking. Massachusetts and many other states have very strict public intoxication laws that students often run afoul of when judgment is impaired. If stopped by a police officer, a student should know the cardinal rule – say no more than you have to and always be respectful. Those twenty-one and over should be aware of the serious liability and possible array of issues that come with hosting parties where both alcohol and minors are present. Keep in mind that providing alcohol to underage friends can carry serious legal consequences, particularly if it results in a motor vehicle or other accident.

As everyone knows, driving under the influence is perhaps the most serious alcohol-related trouble one can get into, with potential consequences like loss of license, community service, school sanctions, a legal record, or even jail time. It goes without saying that one should never drink and drive, but if a student has had a drink and is pulled over, it’s best not to submit to a breathalyzer test. Most states will automatically suspend a license for a period of months for the refusal, but it becomes much more difficult for the State to prove its case at trial and therefore enforce much harsher penalties. Conversely, if a student has not had a drink, he should take the test. Either way, it is typically best to stay in the car as long as possible. Lastly, whether one has been drinking or not, many states have laws strictly forbidding open containers of any kind in a motor vehicle, so one can still get into trouble by allowing friends to drink while they drive.

As a word of caution, many schools also have severe consequences for keeping alcohol in dorms, underage drinking, or activities that are considered to lead to binge drinking (the presence of kegs, drinking games, etc.), so students are well advised to become familiar with their student handbook and also know whether the campus safety officers are a deputized police department (and whether they need consent to enter and search a dorm room.)

Many of the same rules that apply to alcohol can be applied to illegal drug use as well. While it’s never legal to have or use these drugs, college students must also be aware of the serious distinction between drug possession and drug distribution. Simple possession charges can frequently have punishments reduced to fines, community service, and probation. Charges for distribution or intent to distribute, however, are frequently felonies punishable by much harsher sentences. Students should be aware that these charges can arise from acts they think are otherwise relatively innocuous (buying large quantities for personal use, buying for friends, etc.) and carry severe consequences. What’s important to remember about marijuana possession is that while Massachusetts and other states alike have decriminalized the possession of less than an ounce of the drug, a state’s laws may not be consistent with a college’s policy and disciplinary action by the school could ensue, even if the student is not breaking the law.

Fake IDs
Students have been making and utilizing fake IDs for as long as there have been statutory age limits of any kind, but they have never been more legally dangerous as they are in today’s environment of heightened security. While using the real identification of another person may only be a misdemeanor, it can also be punishable under laws applied to identity theft, which carry much harsher penalties. Using a fake ID with a picture of one’s self could be a felony offense, which always carries harsher penalties and gives officers, prosecutors, and judges less discretion in some circumstances. In today’s climate, many states have enacted laws directed at stemming the flow of fake IDs that could potentially be used for identity theft, illegal immigration, or even terrorism.

Credit Cards
At almost every sporting, recruiting, or other campus event, cheap school-branded credit cards are easily applied for by students. Many such offers come by mail, too. Credit markets have tightened, but it’s still very easy for students to get an unreasonable amount of credit extended and wind up in an unmanageable amount of debt. That debt can follow them for years, as can a record of any late or missed payments (which can be monitored thanks to the Federal Trade Commission at AnnualCreditReport.com).

Pranks
Pranks can and often do result in serious legal consequences for college students. What some see as a simple college prank, like taking an item of distinction from a rival school, fraternity, sorority, or group of friends, most likely fits the legal definition of some crimes. Also important to note is the recent attention being paid to hazing. More than ever, colleges and states alike are recognizing much of what was once considered accepted rights of passage as criminal hazing. For its part, Massachusetts defines hazing as, “any conduct or method of initiation into any student organization, whether on public or private property, which willfully or recklessly endangers the physical or mental health of any student or other person,” and specifically eliminates consent as a defense.

Social Networking and Defamation
It should come as no surprise that cyber bullying is receiving more attention from law enforcement officials than ever before. Schools, too, are taking note of, and have been quick in many instances to sanction students, even for conduct entirely online outside of school.

Students need to be careful with what they put in writing in emails and on social networking sites. Today’s technology makes it easier than ever to harass, and lets students be far more removed from the individual when they’re doing it. The rule here is if they wouldn’t do it in person, they shouldn’t do it online. Students should also keep in mind that not only do schools have the right to monitor a student’s online activity and act accordingly (and possibly also monitor email, depending on the university use policy), but everything put online is out there forever. A student might not want to be answering questions about abusive or irresponsible social media use at future job interviews.

Gambling
Poker games, sports pools, friendly wagers, and any other games of chance with money on the line are illegal in most states. Such activities open students up to the possibility of legal consequences, and, perhaps more likely, university sanctions.

Cheating/Plagiarism
Every student knows about the dangers of cheating and plagiarism. Today, in addition to everything students have ever been told, it’s especially important to be aware of the dangers of internet plagiarism – purchasing papers from internet databases or individual paper writers – which can have legal consequences for both the student and the paper source and which will certainly have academic consequences. Students have to keep in mind, whenever technology is developed to cheat, parallel technology is developed to catch cheaters and universities are using it.

Sexual Assault
Sexual assault has been reported with more frequency on a number of campuses in recent years. The term can include forced sexual intercourse with an individual, intercourse with an individual who is too intoxicated to consent, or purposefully drugging someone for the purpose of getting them to submit to intercourse. For students that have been victims, it’s important to remember that resources exist both on their campus and in their community, and they should immediately both seek out those resources and report the crime to law enforcement. If a student has been accused of sexual assault, he should immediately seek legal counsel.

Copyright Infringement
A major concern of today’s college students should be copyright infringement. Ever since Napster, file-sharing has been unquestionably illegal and punishable in both a civil and a criminal context. Today, while Napster is defunct and the record companies have officially called off their strategy of suing individual infringers, BitTorrent remains a ready source of pirated content and the Motion Picture Association of America and individual studios continue to file actions against individuals, college students among them. The civil penalties for downloading even a single file can range anywhere from $750.00 to well over $100,000.00, as a Boston University student found out in a case in Federal District Court in Boston a few years ago.

Not only should students avoid any illegal downloading, they need to make sure that no one on their wireless network is doing any illegal downloading, which means having a password on their wireless router. When their apartment, dorm room, or house connects to the internet, they are identified by the service provider and the rest of the world by a number, an IP address. That specific IP address stays the same for each computer on the network, which means that if they leave their network unprotected, any random individual can use their IP address to undertake a whole host of illegal activity. This may be traceable back to the student account holder, rather than to the downloader.

Landlord/Tenant Issues
One issue that student tenants run into all the time is the mishandling of an apartment security deposit. The security deposit is a deposit paid up-front to ensure that if the tenant causes damage to the apartment, the landlord has the money to fix it without having to wait to get paid by the tenant. In Massachusetts and many other states, though, there are very strict rules for how a landlord must handle a security deposit and landlords very rarely follow them correctly.

In Massachusetts, a landlord who accepts a security deposit must give a written receipt for it, and within 30 days must do a walk-through of the apartment and provide the tenant with a written statement of its condition, giving the tenant an opportunity to note any inaccuracies. The landlord must also provide the tenant with a written statement indicating not only the bank where the deposit is being held but the account number as well. If the landlord fails in any of these respects, the tenant then has the right to demand the deposit’s immediate return. A failure by the landlord at that stage can result in fairly substantial liability, so tenants should always press their advantage.

Within 30 days of moving out, the landlord must then either return the deposit or provide an itemized statement of deductions, sworn to under the pains and penalties of perjury, along with copies of all receipts, invoices, or estimates for repairs. Again, a failure to do so subjects a landlord to liability. Whether a deposit is taken or not, it’s always a good idea to take pictures of the apartment both before moving in and after moving out to document the apartment’s condition.

Another issue that students sometimes have to deal with is eviction. While laws vary greatly by state, in Massachusetts it is important to remember that tenants don’t have to vacate the apartment until a judge tells them to do so. The eviction process is started by what is called a Notice to Quit, which is served by a constable and which tells the tenant to be out by a certain date. The tenant doesn’t have to be out by that date, but they do have to be aware of the documentation being delivered afterwards and make sure that if a case is filed, they timely file an Answer with any Counterclaims for bad conditions or security deposits, and always ask for a jury trial.

Fire
Fire is an issue that is often overlooked. From candles to bonfires, students have the possibility of running into trouble. With the use of fire, property damage can ensue and there have even been cases in which students were charged with arson for damaging school property.

Harassment and Discrimination
In the event of sexual harassment by a faculty or staff member, it is important to report it to law enforcement officials as soon as possible, and to remember that the student may have claims against both the individual and the school.

Claims of discrimination are just as serious, and may also give rise to both administrative and civil claims. If your child is attending a private institution, the student handbook no doubt lays out the school’s discrimination policy, which can be enforced if violated. If your child attends a public institution, the school has to adhere to the State’s laws regarding discrimination. In Massachusetts, a public institution cannot treat one individual differently based upon their race, color, religion, national origin, ancestry, sex, age, disability, sexual orientation, marital status, or status as a recipient of public assistance.

Rule Infractions While School Is Not in Session
With all of these issues, it’s important to note that college students may have to face disciplinary action on-campus even if school-rule violations occurred off-campus or when school was not in session (during the summer or a vacation). For example, if a student drives under the influence and is caught in July, if the school finds out, they may decide to take disciplinary action of their own. Students should be aware that at any time they are enrolled in an institution, they may be at risk if they break that school’s rules.

What if Your Student Gets in Trouble?
Very rarely will a college student encountering a potential legal problem know when to seek legal advice. They often need to quickly find someone they trust. In some circumstances, an attorney should be hired immediately. States have different laws so getting good local counsel is imperative in some cases. It could be advantageous to know local law enforcement and school officials. Dealing with legal troubles sooner rather than later is generally better. Very frequently, issues can be resolved easily very soon after an infraction, but they may become much more difficult to resolve as time goes by. Having a criminal record may later result in required disclosure on job applications and license applications (for example, to practice law).

It should also be noted that in certain circumstances, insurance liability and coverage may be at issue as a result of a student’s actions that may result in a civil lawsuit against the student (or even a parent, if, for example, an automobile accident occurs and the student is driving a car registered to a parent). Again, while it may not always be easy to identify potential legal issues, parents (and students), if in doubt, should consult with an attorney.

Legal Emancipation
Last but not least, it’s important to remember that when your child turns eighteen, they are legally an adult and therefore legally emancipated from their parents.

Since a parent is no longer the legal guardian, he can no longer access their child’s health information or make legal, medical, or financial decisions for them if they’re incapable of doing so. For example, if the student is in an accident and in the hospital, a parent may not be able to access medical records or give doctors the authority to undertake possibly life saving measures. So like any responsible adult, the student should go see a good estate planning attorney to have him draft a healthcare proxy, HIPAA authorization, and a durable power of attorney and whatever other legal documents, including a will, that may be appropriate under the circumstances.

Students should also understand that when they reach the age of eighteen, parents are no longer obligated to help pay for school, clothing, food and housing.

Conclusion
Although it has been said that the wheels of justice turn slowly, things can happen very quickly to a college student in trouble. Oftentimes, students underestimate the potential legal and other consequences of their wrongful conduct, or don’t understand when they need legal assistance to help them through a problem. Getting appropriate advice immediately will often save a student from unfortunate results later, which may have had a different outcome had they sought advice earlier.

Mr. Rudolph is Managing Partner of the law firm of Rudolph Friedmann LLP in Boston.