“Laws Limit Options When a Student is Mentally Ill”

by Walter Olson on April 19, 2007

WashingtonPost.com’s “Think Tank Town” feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.

This morning’s New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness….

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression….

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.

The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son’s suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, “After a Suicide, Privacy on Trial”, Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho’s behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, “School says its options were few despite his troubling behavior”, Boston Globe, Apr. 19; Ribstein.

And: How well did privacy laws/policies work? Why, just perfectly:

Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.

“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.

“I do not know why she would not have that information,” she said. “I just know that she did not have it.”

(Shaila Dewan and Marc Santora, “University Says It Wasn’t Involved in Gunman’s Treatment”, New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today’s Times, recounting her experience with a disturbing student: “It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt.” (“The Killer in the Lecture Hall”, Apr. 19). The tease-quote from the Times’s editors: “Do universities fear lawsuits more than violent students?”

{ 7 comments }

1 Dr. Mary Johnson 04.19.07 at 12:01 am
2 Tom T. 04.19.07 at 8:25 am

Bear in mind that if we set a policy such that seeking counseling and obtaining treatment for depression are reportable to police and grounds for expulsion, far fewer students will seek counseling and treatment.

3 Jim Collins 04.19.07 at 9:32 am

“Catch-22″ is alive and apparently doing well.

4 jb 04.19.07 at 10:53 am

Tom T: I agree. Clearly the answer is to not hold schools liable for failing to do that.

But the public demands easy answers, that “something be done,” and someone to blame.

5 Dick 04.19.07 at 2:04 pm

Tort lawyers are developing their own dream environment … where you can be sued for either option you take. AND judges and defense lawyers are complicit because their ranks and careers grow in the process.

6 Tom T. 04.19.07 at 6:03 pm

Note that what may appear as a double bind may actually reflect a difference in state laws. As an earlier NYT article indicated, courts in several states have expressly found that a college has no duty to prevent students from injuring themselves, but Massachusetts has never abandoned the old “in loco parentis” doctrine. The Shin case would have tested that doctrine, had the parties not settled.

Also, the jury in the Allegheny College case that Walter cites found that the college had no liability.

7 Moe Levine 04.23.07 at 5:19 pm

just BS

this laws do not restrict–all one has to do is ask, in advance, for a waiver.

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