LEGALLY SPEAKING

By John Browning



The last echo of the gunshots that rang out over the Virginia Tech campus had barely faded before pundits began indulging in that most American of pastimes — the “blame game.”

Couldn’t university administrators have done something to protect its students and faculty from Cho Seung-Hui, a student with a disturbing history of mental health problems? The sad irony is that in our current legal climate, colleges find themselves in an unenviable “damned if you do, damned if you don’t” situation. On the one hand, they risk liability if they fail to prevent a suicide or murder, while on the other hand they risk violating various laws and incurring liability if they do take action to remove a mentally ill student.

According to the Jed Foundation (a national organization focusing on suicide among college students, founded by the parents of Jed Satow, a college sophomore who took his own life), roughly 1,100 college students commit suicide each year. And while, according to the American College Health Association, about 9 percent of college students confess to having seriously considered taking their own lives, suicide is actually the third-leading cause of death among 18-24 year-olds.

In 2002, the parents of Elizabeth Shin sued the Massachusetts Institute of Technology for $27 million after their daughter, an MIT student, committed suicide in 2000. Elizabeth had written several suicide notes and used the university’s counseling service for over a year before setting herself on fire. According to her parents, who hadn’t been informed of Elizabeth’s downward spiral, MIT failed “to provide reasonable medical/mental health care services.”

In 1995 at Harvard, an Ethiopian student, Sinedu Tadesse, exhibited many of the same disturbing behavior patterns as Cho before stabbing her roommate Trang Phuong Ho 45 times and then hanging herself. Like the Elizabeth Shin case, this murder-suicide resulted in a lawsuit and ultimately a confidential settlement.

After Michael Frentzel committed suicide in 2003 at Ferrum College in Virginia, his parents claimed in a federal lawsuit that the school had ignored signs that their son was likely to hurt himself. This case, too, resulted in an undisclosed financial settlement. Nationwide, there have been at least 10 lawsuits filed against colleges by the families of suicidal students.

In some cases, the university receives vindication. Such was the case last August, when a civil jury found in favor of Pennsylvania’s Allegheny College when it was the target of a wrongful death lawsuit. Less than two hours after junior Chuck Mahoney — once the college’s quarterback and an honor student — left a session with his counselor on February 11, 2002, he visited a suicide-related Web site and shortly thereafter hanged himself. Mahoney’s parents filed suit, claiming that the school should have notified them that their son (who’d been in counseling for over two years), was a danger to himself. School officials claimed that its care was proper, that he was not an imminent suicide risk and that Mahoney had not signed a waiver that would have permitted the college to discuss his condition with his family. Allegheny College maintained that Mahoney’s right to privacy and the sanctity of therapist-patient privilege trumped all, and the jury agreed.

The fact is, colleges must navigate the tricky shoals of federal and state laws in this area. The Federal Educational Rights and Privacy Act of 1974, also known as the Buckley Amendment, makes it illegal for administrators to tell parents almost any details about their child’s life at college, including mental health or medical problems, without the student’s permission. While this law creates an exception and allows access to such records in the case of an emergency or to protect the health of a student, this exception is vaguely written and hasn’t been tested much in court. Adding to universities’ difficulties are the Health Insurance Portability and Accountability Act (HIPAA), prohibiting the release of medical records, and the Americans with Disabilities Act (ADA).

When George Washington University suspended Jordan Nott after he sought medical treatment for severe depression, the student sued under the ADA claiming discrimination. While the school maintained it was simply acting in Nott’s best interests by forcing him to take time off to get counseling, an out of court settlement was reached in the fall of 2006.

Other universities have encountered similar legal roadblocks in their quest to balance respect for student privacy with concerns for student safety. Schools such as Hunter College in New York and the University of Illinois implemented policies in which a suicide attempt will result in being evicted from campus residence halls or, in the case of Illinois, getting kicked out of school entirely unless the student attends a mandatory treatment program. For Hunter College at least, such efforts wilted in the face of costly litigation: it recently paid $65,000 to settle the claims of a student who was barred from her dormitory after her suicide attempt and subsequent hospitalization.

The deadly rampage at Virginia Tech has raised questions about what colleges can and should so when students exhibit disturbing behavior. Cho Seung-Hui’s classroom demeanor and twisted, blood-soaked prose frightened fellow students and alarmed English professors enough to result in being removed from one class and in complaints being made to the department chair. In November and December 2005, Cho harassed female students in person, via telephone, and through instant messages. Ultimately, after speaking to Cho, Virginia Tech counselors sought a detention order from a local magistrate and on December 13, 2005, the disturbed young man was taken to Carilion St. Albans Psychiatric Hospital in nearby Radford, Va. But within days, Cho was released and back in classes, as St. Albans’ psychologists were seemingly hamstrung by the absence of any direct threats and by Cho’s denial of suicidal intentions.

Can something be done to ease the “catch-22” in which universities find themselves when dealing with mentally ill and potentially dangerous students? Congressman Tim Murphy (R-Pa.) thinks so. Murphy, who is also a child psychologist, plans to introduce legislation that would permit a university to notify a student’s parents without fear of violating privacy laws if that student is deemed to be at risk of committing suicide, homicide, or assault. At the same time, however, many college administrators and mental health care professionals caution against overreactions that would further stigmatize and alienate those with mental health issues. They point to the importance of privacy rights and applaud such developments as a law passed in March 2007 — the first of its kind in the country — that prohibits public colleges and universities from disciplining or expelling students “solely for attempting to commit suicide, or seeking mental health treatment for suicidal thoughts and behaviors.”

The state that passed this well-meaning law? Virginia.