Discrimination against the mentally ill

by Walter Olson on April 20, 2007

David Bernstein is presiding over a thread at Volokh (Apr. 18).

More from the WSJ’s editors today:

A reasonable university administrator might conclude from all this [the suits against Harvard and MIT over the Sinedu Tadesse and Elizabeth Shin episodes, respectively] that mentally ill students–when there is even a remote possibility that they will be dangerous–need to be removed from campus, at least until their condition has improved. But not so fast. In 2004, George Washington University suspended Jordan Nott after he sought medical treatment for severe depression. Officials said later that they were trying to act in Mr. Nott’s best interests, by forcing him to take time off to get counseling. Mr. Nott sued the university, arguing that it had violated his rights under the Americans With Disabilities Act. The school and Mr. Nott settled out of court last fall.

In the same rights-based spirit, Virginia recently passed a law barring public colleges and universities from punishing or expelling students “solely for attempting to commit suicide, or seeking mental-health treatment for suicidal thoughts or behaviors.”

(“Caught in the (Legal) Crossfire”, Apr. 20).

And: “Privacy and anti-discrimination laws have meant paralysis in the face of the scarily insane.” (Kay Hymowitz (Manhattan Institute), “In loco parentis – not”, New York Sun, Apr. 20, original at City Journal). Speaking of privacy laws, Hymowitz writes:

Some years ago, when my daughter was starting out at Amherst, the college president explained the terms of the Buckley Amendment to the parents of incoming freshmen. One parent asked in disbelief, “You mean, if my kid were to disappear to California with a drugged-out nut, you wouldn’t even tell me she was missing?” The president smiled with just a hint of condescension. “That’s right,” he said.

{ 3 comments }

1 CNS 04.21.07 at 1:00 am

Actually the second time I posted this tonight: When I was in college, ten years ago, I could be described much like Cho. Given antidepressants, accused of stalking, violent, scared other students. (note: this was on a private Catholic campus which had had a shooting incident a few years prior)

I easily could have turned to violence–I was bipolar but had not been diagnosed. However, with the support of professors and administration, I did fine, and here I am 10 years later being all productive and fully medicated.

I must say I dislike how Cho is being posthumoulsy diagnosed–only a mental health professional with first-hand contact can truly opine on his psychiatric condition. I, and others like me, are really quite worried about how this portrays us–are we just mentally ill, or are we potential psycho-killers?

2 Tom T. 04.22.07 at 5:03 pm

The facts of the Nott case do not seem terribly favorable for GWU. Nott went to the university hospital for depression and apparently asked about the link between antidepressants and suicide, because a friend had committed suicide recently. He was then immediately barred from his dorm room and GW leveled disciplinary charges against him and told him he had to withdraw from the university or face suspension, expulsion and/or criminal charges.

There was no finding that Nott was a danger to himself or others, so there was no pretense of a therapeutic purpose to the disciplinary charges against him. They tried to get rid of him apparently for no basis other than his seeking mental health treatment.

That seems squarely in violation of the ADA, so it’s hard to feel sorry for GWU here. Certainly, if one doesn’t like the ADA in general, then this suit will be objectionable. It’s on the books, though, as the judgment of society that depression sufferers are generally capable of participating in higher education, so GWU should have been more careful and at the very least have established more facts to support an expulsion.

Moreover, since the Shin and Tadesse cases were settled confidentially, they don’t really convey anything about the state of the law or about the parties’ assessment of their litigation risk (the Shins might have settled for attorneys’ fees plus $10,000, for instance). Thus, it’s hard to see how a University administrator would draw conclusions from them, as the WSJ suggests.

3 nevins 04.23.07 at 6:37 pm

Curious admission from CNS, “I easily could have turned to violence-”. He still has the same condition that created the original situation.
Discrimination (being discriminant or choosy) is good. Sometimes discrimination can be dun unfairly, or in a manner that excessively harms someone. So if I have the ability to choose between two otherwise similar applicants, one who just might through a chemical imbalance go on a shooting spree, would it be unreasonable of me to choose the one without such proclivaty? I don’t see that as unfair to CNS, but merely a matter of enlightened self interest.
Perhaps if CNS had been a close friend for a decade I might feel differently. In that case I might then in the same situation choose him over an otherwise equally qualified applicant for some hypothetical position. Would it then be unfair or discriminatory to the other party equally qualified that I used something as arbitrary as personal friendship to award a benefit? No, just being discriminant (choosy, selective) not disciminatory (unfair, bias etc.)

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