Hunton Insurance Recovery Blog

Colleges and universities have long sat at the crossroads of freedom of expression and societal change. As campus activism surges, they face growing pressure to protect their institutional missions while upholding students’ individual rights in an era of heightened scrutiny.

Hunton’s Higher Education Team recently issued a legal update, “Campus Event Safety: Free Speech Guidance for Public and Private Institutions,” which provides a timely overview of the legal obligations public and private colleges and universities must navigate when confronting free speech issues, as well as practical risk management strategies for large events and protest response planning.

While training and clear policies are essential, colleges and universities also need to protect themselves against potential liability claims arising from campus protests. Targeted insurance with adequate limits is a vital part of any comprehensive risk management strategy. Colleges and universities should proactively review their insurance portfolios to ensure they have the right combination of traditional and specialized coverage to address these evolving risks.

General Liability Insurance

Traditional General Liability (GL) insurance is often an institution’s first, and most fundamental, line of defense against a wide range of risks. This is especially true for claims arising from campus protests and demonstrations.

GL insurance provides coverage for bodily injury, third-party property damage, and certain personal and advertising injuries, such as defamation. It is critical for campus protests or demonstrations, where physical altercations, third-party property damage, or defamation can occur and quickly lead to costly claims. However, colleges and universities must be aware of coverage gaps that might exist in their GL policies. For example, most GL policies exclude claims for violations of constitutional rights or purely “civil rights” issues, including Title VI and Title IX claims. As a result, lawsuits alleging First Amendment violations are typically not covered.

Thus, while GL insurance is important, colleges and universities should evaluate other forms of coverage to address potential civil rights liability exposures.

Directors & Officers Insurance

D&O coverage protects trustees, officers, and senior decision-makers from claims arising from management and governance decisions, including alleged mismanagement, breach of fiduciary duty, or wrongful policy decisions related to event cancellation, freedom of expression, allegations of discrimination, and campus safety.

Because demonstration and protest-related controversies often involve high-level governance and crisis-management decisions, D&O insurance is critical to protect institutional leadership from personal liability and help colleges and universities attract and retain qualified leaders.

Educators Legal Liability Insurance

Colleges and universities should also be aware of specialized policies, such as Educators Legal Liability (ELL) insurance. ELL policies are specifically crafted to address claims arising from the institution’s educational services and operations tied to students, faculty, and often volunteers—including retaliation against protected speech and other civil rights violations, including Title VI and Title IX claims that might result from campus protests or other potentially controversial events. For example, ELL may respond if a student sues the institution or a faculty member alleges violations of constitutional or civil rights stemming from disciplinary action or other administrative decisions. There can, however, be limitations or narrowed coverage under ELL policies in certain situations, such as when only injunctive relief is sought, there is a final adjudication of intentional wrongdoing, claims arise from criminal proceedings, or misconduct or criminal behavior from campus police conduct is central to the claim.

Takeaways

Colleges and universities face increasing challenges in navigating freedom of expression, allegations of discrimination, campus demonstrations and protests, and broader societal shifts. To protect their communities and institutional interests, colleges and universities should take a proactive, strategic approach to risk management by:

1. Reviewing coverage regularly: Ensure policy terms and limits reflect current risks.
2. Addressing coverage gaps: Understand coverage gaps and consider specialized coverage where needed.
3. Coordinating internally: Align legal, risk, and operations teams to ensure proper coverage and readiness for potential events.
4. Reviewing coverage positions: Carefully review any insurer’s coverage position letter and consult with professionals as needed.

Any situation that presents financial risk should be considered ripe for insurance assessment and guidance. Awareness of available insurance coverage for free speech and protest-related events enables colleges and universities to manage legal and financial risks and respond confidently to claims. Comprehensive risk management is key; and working with experienced insurance coverage counsel can help colleges and universities address these challenges to maximize coverage and insurance recovery should a claim arise.

This post is part of the Hunton Insurance Recovery Blog’s Campus Risk Playbook Series.