Column: Smoking ban not a survey issue

The Hatchet editorial and article (Feb. 22 issue) about the lack of a formal survey leading to the ban on smoking in residence halls is based on a fundamental misconception. While many issues – like which bands to invite to campus – should be determined primarily by student opinion, the University has the right, if not the duty to adopt rules to protect student health and safety, as well as protecting itself from legal liability, physical damage and financial harm, without student surveys or approval.

Fire safety risk. Smoking, like burning candles, presents a serious safety issue. The major cause of residential fire deaths in places like dormitories is not candles but the accidental dropping of a lit cigarette onto furniture or bedding materials where it smolders before causing a fire which kills people while they sleep. Thus, if the University were now to change the rule and permit smoking, it could be legally liable for students killed or injured by such a fire. Indeed, it might be liable to students injured in running from a building where a lit cigarette triggered a fire or even a fire or smoke alarm.

Deadly health risk. The federal government has classified secondhand tobacco smoke as a “known human carcinogen” after determining that it causes thousands of lung cancer deaths each year among nonsmokers. Certainly the University would not need a student survey to prohibit a dormitory resident from cleaning old brake drums – which release carcinogenic asbestos dust – even in his own room, using benzene to clean engine parts, or storing radioactive chemicals.

Because there is no known lower level below which any human carcinogen is known to be safe, the government recommends that, if smoking is to be permitted indoors at all, it must be in rooms with a separate ventilation system, not the system in use in the dormitories where smoke is simply recalculated to other rooms. In short, if students in other rooms can smell the smoke, it could be triggering a lung cancer.

The Centers for Disease Control also recently warned that breathing drifting tobacco smoke for as little as 30 minutes can trigger a fatal heart attack. It’s also well known to trigger asthmatic attacks, to cause asthma and to cause a variety of other health problems for persons with conditions that make them especially sensitive to tobacco smoke and protected under the Americans With Disabilities Act. There is little need for students to vote on whether a tiny minority of students should be permitted to put the lives and health of other dormitory residents at risk and put the University at risk of an agency complaint or lawsuit.

Potential legal liability. Courts are increasingly holding that residents can sue when drifting or recalculating tobacco smoke enters their living area from another dwelling. Thus a reversal of this new smoking policy – with the University already on notice through The Hatchet that smoke is being recalculated into other rooms and causing problems for asthmatic students – could open the University up to lawsuits or regulatory complaints by nonsmoking students.

In this regard, it is well to remember that the University’s decision to ban smoking in University buildings – including even the private offices of faculty – was made because of the threat of a complaint to Occupational Safety and Health Administration, and was done without taking any poll of the affected faculty. A reversal of this new policy could likewise open the University up to complaints to OSHA as well as under the ADA.

No right to smoke. Finally, The Hatchet is mistaken when it argues that students have a right to smoke. Courts have repeatedly rejected the idea that there is any right to smoke, and have upheld or even imposed smoking bans in airplanes – despite the constitutional right to travel – in places of employment, and even in private homes and cars. If there were a right to burn tobacco in dormitory rooms, the same logic would suggest an equally valid right to burn incense candles – a right students clearly do not have, and does not require a student referendum to resolve or regulate.

In short, no one would assume that any student has the right to engage in an activity in a dormitory which could kill other residents by fire or cancer, trigger other serious health problems for students and workers, create legal liability if the University formally permits it, and damage University property – or that the creation of such a right needs to be the subject of a formal survey or referendum among students.

-The writer is a professor of public interest law.

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