Editor’s note: During the Student Bar Association meeting on 11/3/2015, an open forum was held discussing and debating the concept of a smoking ban on campus. A number of SBA delegates and members of the student body at large voiced their opinions. In response, the Law Weekly has solicited opinion articles from community members that wish to publish their opinions.
The following two letters are reproduced exactly as they were received by the Law Weekly. They do not reflect the opinion or position of the Law Weekly. If you would like to see your opinion on this or any other issue published in the Law Weekly, contact the Editor in Chief, David Nayer, at firstname.lastname@example.org.
As an exercise to determine why some advocate for a GULC smoking ban, let’s think of second hand smoke as a tort against members of the Georgetown community, from which some members seek injunctive relief.
It is incumbent on the movant to present why an injunction is necessary. The minutes to the Nov. 3 SBA meeting include these reasons:
- that people may be allergic to smoke,
- a cigarette butt could potentially start a grass fire,
- some peer schools have adopted a no smoking policy,
- we should help others quit smoking, and
- people smoke too close to entry ways, especially Gewirz, in violation of the school’s 25 foot policy.
Like any court, lets first examine these causes of action for standing, which requires (1) injury-in-fact, (2) causation, and (3) redressibility.
An unstated person is allergic to cigarette smoke, but no one asserts actual harm from their allergy to second hand smoke on campus. Until someone does, there is no injury-in-fact, or the issue is not ripe for review. (In fact, cigarette smoke lacks allergenic proteins that induce an allergic reaction. Any adverse effect is simply an exacerbation of another sensitivity).
In dry conditions, cigarette butts may accidentally cause a grass fire. But DC was built on a swamp and rarely faces drought. Perhaps a temporary ban is warranted in especially dry conditions. In the absence of dry conditions there is no imminent risk of injury, and therefore no injury-in-fact.
Other schools have adopted a campus wide no-smoking policy. I assume the injury asserted is that this puts GULC at a competitive disadvantage in recruiting and keeping quality students and faculty. But we are reasonable adults, and we all chose to attend or work at a school in spite of it permitting smoking. Unless someone demonstrates that Georgetown is losing quality classmates or faculty by them opting for non-smoking schools, there is no injury-in-fact.
Advocates of a ban on campus smoking in order to protect the health of smokers attempt third party standing, seeking injunction on our smoker’s behalf. Third party standing is generally prohibited, except when found prudent. The Supreme Court opined in Kowalski v. Tesmer, 543 U.S. 125, 129-30 (2004) that prudent exceptions tend to arise where (1) the person asserting standing has a “close relationship” with the person whose right is infringed, or (2) the infringed right possessor is hindered from protecting his or her own interest. We are bonded as Hoyas, but by neither the water of the womb nor blood of the covenant. Thus, our anti-smoking advocates must assert that tobacco’s addictive qualities and/or marketing hinder a smoker’s ability to make rational choices concerning their health. I do not think so little of our peers.
But let’s assume third party standing were allowed. Injury-in-fact is demonstrable, as smoking is a proven health hazard Smoking on campus contributes to that harm, demonstrating causation. But standing fails on redressibility. There is no evidence that walking the extra distance outside of the gates of campus would have any effect on the frequency of smoker’s taking a break, or that said decrease would have material health benefit. No redressability, ergo no standing.
Finally, a commenter complained that people actively smoke within 25 feet of the school’s entryways – namely Gewirz – in violation of GULC policy. Alas, we have standing! Injury to persons right to non-exposure in entryways, causation by smoker’s violation, and redressibility by a ban. But here, the tort is not exposure to smoke on campus – it is exposure to smoke in the entryway of a building – a chokepoint where a reasonable person is unable to avoid a smoker’s unpleasant emanation – in violation of GULC’s rules. A courteous reminder to GULC smokers of the 25 foot rule, followed by spot enforcement is a more than adequate remedy to protect that narrowly defined right. Liebeck did not seek to enjoin McDonalds from serving coffee: she sought they serve coffee reasonably. Liebeck v. McDonald’s Restaurants, 1995 WL 360309 (Bernalillo County, N.M. Dist. Ct. 1994).
Someone will kindly remind me that this is not a trial, but instead a legislative action. It is true. But may this exercise in standing demonstrate one thing: the effort to ban smoking on the GULC campus is not driven by a genuine health or safety concern stemming from the collateral effects of smoking. There is a group that does not like smoking (in general) or brief exposure to cigarette smoke. They might have the best intentions, believing this policy to best for the health of our peers. But they seek to impose their judgment for our peer’s reasonable exercise of free will. Some people prioritize the utility of smoking over the health consequences it will one day cause. That is their choice.
Until the advocates of a campus wide smoking ban demonstrate a compelling reason and supporting evidence, I am not inclined to change the status quo. I do not smoke. But my disapproval or even distaste for another’s activity will not move me to ban it.
I think it would be foolish to restrict smoking on campus. Especially when it’s late out, the Law Center does not have an ideal location. I have been threatened several times late at night, just outside the Law Center. Once just this week, I was verbally abused by a man telling me to return to my country (I was born here) and how all middle easterners would be killed (I am not middle eastern either). But the other issues all arose because of cigarettes, homeless people would ask me for one, if I refused they would resort to making threats.
I go to the library to do my readings late at night. I would not be pleased with this decision. If the law center were to ban smoking, it should make an exception for when it’s late at night or expand security to outside the buildings, near the sidewalks. Honestly, I would not be pleased with this decision, if it forced me to smoke outside, in a neighborhood infested with homeless people, drug addicts, and thugs. I have seen people attacked late at night. Whenever I walk from the library to my building, I must be vigilant. In my opinion it would be negligent to force those on campus late at night, to resort to the streets for smoking. You know this isn’t exactly a great area, please do not compromise my safety.