April 14, 2006

Thank You for Not Smoking

A sign outside George Washington’s law school

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Given how freely and frequently John F. Banzhaf III files lawsuits — one of the courses he teaches at George Washington University’s law school is nicknamed “suing for credit” — it’s almost remarkable that it took him this long to take direct aim at his employer. But Banzhaf, a professor of public interest law at George Washington for more than 30 years and a crusader against smoking and unhealthy fast food around the world, has turned his anti-smoking campaign on his own institution. And he’s doing so in a way that would hold an individual administrator at GW personally liable, which he asserts could break new legal ground.

Banzhaf says that university administrators have repeatedly declined in recent months to respond to requests by students and others to restrict smoking near the entrances to buildings on the campus. A “gauntlet of tobacco smoke” surrounds many an entrance to campus buildings, Banzhaf says — except those, like the entrances to the law school and the building that houses the university’s president and other top administrators, that already display signs barring smoking near the entrances, Banzhaf notes with some irony.

More than 500 students and staff members signed an online petition this winter that urged the university to amend its policies by prohibiting smoking within 50 feet of the entrances to all buildings, but the university’s Office of Risk Management, which oversees such policies, has refused to act, Banzhaf asserts. Matt Lindsay, assistant director of media relations at the university, says that the institution does not control the sidewalks outside the entrances to its buildings, and that GW officials don’t think it would make sense to put up signs discouraging an activity when “it is not something we can back up and actually stop people from doing.”

So last week, the law professor delivered a letter to Fitzroy Smith, who directs the risk management office, about Banzhaf’s intention to file a discrimination complaint with the District of Columbia Office of Human Rights if Smith and the university do not take steps to stop smoking around the entrances to buildings on the campus. “This will seek to hold him personally and individually liable for discrimination against nonsmokers and persons with handicaps” related to smoking, such as respiratory illnesses, Banzhaf says.

Banzhaf says that the legal action would take advantage of a provision in the D.C. Human Rights Act that allows complainants to target individuals who “aid and abet” discrimination that is committed by their institutions. “Previously where students or faculty felt that they were victims of some kind of discrimination — race, national origin, sex — it seemed that their choices were either to file a complaint with the university, which didn’t get them very much, or they could go to court and file a suit against the university,” he says.

“This would create a precedent whereby any student or faculty member could proceed not against a university, which is well protected, but against the particular individual who is specifically responsible for the action, and seek possible damages and attorney’s fees.” Several cases, including one Banzhaf initiated to stop editors at a community newspaper in Washington from running “ladies nights” ads, which he contended discriminated against men, have successfully cited this provision, he says. Banzhaf says he believes, from early research, that such an approach is possible under federal civil rights laws, and that it could be applied to administrators at colleges nationally as well.

At least one higher education legal expert, Sheldon E. Steinbach, vice president and general counsel of the American Council on Education, said he thought Banzhaf’s idea was a long shot. It is “extraordinarily rare” for an individual to be held accountable for the actions of an institution, Steinbach said, describing Banzhaf’s legal theory “far-fetched in the extreme.”

Smith has declined to comment on the case. Lindsay, the GW spokesman, said that the university “welcomed the feedback” from students and from Banzhaf, and that it was considering two steps to respond to their complaints. First, they have encouraged the associations that manage each campus residence hall to take a vote of the students who live there about whether they want to “self-police this kind of thing” by barring smoking around that dormitory.

University officials are also “taking a look at the location of ashtrays” near campus buildings, with the idea that moving the ashtrays further away from the entrances might “push folks away” from the doors.

The university hopes that Banzhaf stops short of actually filing the legal complaint against Smith, Lindsay says, but if he pursues it, “we will support” Smith.

Banzhaf says he doesn’t have any great desire to sue his employer or any of its officials, and notes that in more than 30 years at the university, he has been able to resolve his past conflicts with the institution “by working through the procedures. It’s only when you run into a brick wall, and people basically say ‘No, the hell with you,’ that you have to do something different.”

“My aim,” he says, “is to get them to do what they should do, which is to protect people from dangerous smoke. If the only way to do that is to establish a precedent so that every student who feels that he or she has been discriminated against in any way can easily file a complaint not against the university, but against an individual who can be held personally and individually liable, I will do so.”

Colleges, he adds, often “have done the right thing only after legal action was brought or threatened.”

— Doug Lederman

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