concurring and dissenting: I join in the concurring and dissenting opinion of Justice Six.
I am concerned that the majority is placing an unreasonable and legally unjustified burden on the defendant Kansas State University and all other Kansas colleges and universities which provide housing to their students.
J.N. accused Ramon Davenport of having raped her on April 28, 1990. The incident allegedly occurred in the middle of the night in Davenport’s room at the coed residence hall in which they each resided. There is nothing to indicate that J.N. was forced to enter Davenport’s room. Presumably, then, they were well acquainted at the time of the incident. Criminal charges were filed. The University responded by separating J.N. and Davenport—moving Davenport, with his agreement, to another residence hall housing only male students. When only one residence hall was available for the period of the intersession, Davenport was moved into the coed facility where the incident involving Nero occurred in the lounge area.
As the majority points out, the days of strict monitoring by a coed university of the private lives of its students is over. College students are to be treated as adults. When faced with a decision as to what to do when one student alleges sexual improprieties by a fellow resident, a university has a judgment call to make. Such a call has to be made on a case-by-case basis. The alleged impropriety herein was the subject of a criminal charge which, practically speaking, eliminates any meaningful due process proceeding by the University until after resolution of the criminal charge. It is unlikely the defense attorney would permit his or her client to tell the client’s version of the events in a due process proceeding prior to resolution of the criminal charge. Yet, the University has entered into a contract with the accused resident to provide housing and cannot act arbitrarily. Thus, the University is placed in a very difficult situation.
The majority opinion would have the University warn fellow students of Davenport’s potential risk to them. How is this to be done? Word of mouth? Publication in the student newspaper? *599Flyers? Requiring Davenport to wear sandwich boards stating, “I am a rapist, beware”? Branding his forehead with the word, “Rapist”? In this country, an accused person is presumed innocent. The majority opinion, in essence, requires the University to presume guilt, treat the accused as a pariah, and ostracize him from all female students.
The University separated the living quarters of Davenport and J.N. The incident between those two arose out of their personal relationship. The University really had nothing on which to base a conclusion that Davenport was a risk to other female students and should not be domiciled with them. The majority would place a legal duty on the University to make a particular decision— that is, not to house Davenport with female students without warning them that Davenport was a threat to their safety. I disagree. The situation confronting the University was a complex one with no available solution so obvious and clear cut as to render it ministerial in nature. The University had a difficult judgment call to make. It made that call. The'call proved, through the. wisdom of hindsight, not' to be a wise oné. However, such a judgment call is a discretionary function specifically excluded from liability by the Kansas Tort Claims Act (K.S.A. 1992 S'upp. 75-6104[e]). 1
I would affirm the district court.