An unknown gunman snuck onto the Southern University campus in 2002 and shot to death a student in a dorm room.
His parents sued, claiming that the university should have protected their child. But a court threw out the lawsuit over questions about whether the murder was “foreseeable.”
“How can you protect (students) from an event that is unforeseeable?” said Winston DeCuir Sr., the Baton Rouge, La., university’s private counsel.
At Virginia Tech, numerous questions have been raised about the mental health of the killer, Seung-Hui Cho, illustrating the difficulty in determining “foreseeability” of harm when a university student exhibits potentially dangerous behavior.
Experts say that laws and compassion dictate that students be given every reasonable chance to succeed. But as universities increase the amount of insurance they carry to protect themselves against lawsuits, they are left to wrestle with policies that balance privacy, mental-health concerns and campus safety – a task rife with danger.
“It’s a very gray and difficult area,” Ada Meloy, general counsel for the American Council on Education, said on Thursday. “I have no reason to believe, given what I’ve seen so far, that Virginia Tech did anything wrong.”
Whether extreme actions like Cho’s are foreseeable raises the debate to dizzying new heights.
“Normal” circumstances
In Southern’s case, DeCuir argued successfully that the university had police on patrol, good lighting and other security measures in place that should have protected students under normal circumstances.
Much like a city police force cannot be blamed if a citizen is murdered in his house when there was no warning, DeCuir said, the university police structure also could not be faulted for failing to divine an unknown shooter had slipped onto its grounds. Southern later paid $125,000 to install new security equipment.
But at Virginia Tech, several teachers and students raised alarms about Cho as far back as 2005. He was briefly detained at a mental-health facility. A judge had pronounced him dangerous, but counselors at the facility released him after an evaluation.
The fact is that when a student displays worrisome mental or emotional behaviors, laws and some recent landscape-changing court rulings give universities conflicting messages about how to proceed.
Meanwhile the amount of damages sought in lawsuits is climbing. On average, universities are buying insurance coverage in amounts between $10 million and $25 million.
“I think generally there’s a sense of a need for higher limits than there was 25 years ago,” said Robb Jones, general counsel for United Educators Insurance.
“I don’t see that there is any likelihood that there will be any changes in that trend,” Jones said.
Some university presidents are even taking the additional step of buying private liability insurance to bolster the coverage traditionally offered by their schools.
Gary Pavela, a University of Maryland law professor who consults with administrators struggling to make sense of mental-health issues, says roughly a third of university presidents he works with are now buying private coverage. Data on those policies aren’t tracked. Attempts to interview several university presidents were unsuccessful.
Fears of a backlash
Jones, Pavela and other observers say that if anything good can come from the bloodshed at Virginia Tech, it’s a more useful debate on how universities can handle security issues and mental-health concerns.
“The real question,” Jones said, “is: Has the pendulum swung too far toward individual rights … that we have now hamstrung our ability to react?”
Several universities have been forced to retreat from attempts to bar troubled students from campus.
Protections for students come in the form of the Americans with Disabilities Act, the Family Educational Rights and Privacy Act and other civil rights and medical privacy laws.
At Hunter College, which is part of the City University of New York system, a student was evicted from her room after a suicide attempt.
Last August, the student forced the university to drop its eviction policy and won a settlement of $65,000.
Meanwhile the talk that’s begun about whether Virginia Tech should have removed Cho already has some experts concerned about a backlash toward students who suffer from mental illnesses.
“I hear that argument a lot. Liability. They are afraid of liability,” said Karen Bower, an attorney with the Judge David L. Bazelon Center for Mental Health Law, Washington.
“What we should be talking about is what we can do to encourage students to get mental-health treatment,” Bower said.
United Educators’ Jones agrees. For the past four years, the insurance company has been offering risk-management seminars to address mental-health treatment and FERPA issues.
“No university wants to go through even one student death because of a suicide or a homicide that could have been prevented,” Jones said.
“My position has always been that the laws will defend you either way,” Jones said. “You have to make your best judgments.”
Determining what is foreseeable when a student tells a school counselor or resident assistant he is feeling suicidal is extremely complex, experts say, because the great majority of students who say they wish to kill themselves don’t.
A main issue for universities is the FERPA protections. That law defines a legal adult as 18 or older and therefore gives college students the right to keep information they give to school counselors and officials secret.
FERPA was amended in 1998, and schools now are able to notify appropriate parties in health and safety emergencies.
“An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals,” the law reads.
Tragic results
But application of the law and the amendment can be tragically perplexing.
In 1994, Uttam Jain was vacuuming when the call came that his son had taken his life in his dorm room.
Jain says the call was the first of two major surprises he would hear that day.
Only a few days before, Jain had spoken with his 18-year-old son, Sanjay Jain, who was then a freshman at the University of Iowa. Sanjay had talked about coming home for Christmas break and about his interest in focusing his major on computers.
“Everything was like happy and normal,” Uttam Jain said.
The second surprise came at the hospital. Jain learned that university officials knew his son had expressed suicidal tendencies, but because of federal privacy laws, they hadn’t told his parents.
“There are a lot of stupid laws responsible for what has happened here,” Jain said.
Jain says he sees the same “ridiculous laws” lurking behind the massacre at Virginia Tech.
Enraged that he hadn’t been warned about his son’s suicidal behavior, Jain sued the university. Back then, in 1994, the courts sided with the university. In 2000, the Iowa Supreme Court ruled that the university’s resident assistant and her supervisor had no legal duty at the time to inform the parents.
But times have changed.
In 2000, 19-year-old MIT student Elizabeth Shin set herself on fire and later died.
Like the Jains, the student’s parents didn’t suspect trouble, and hadn’t been warned by the university that trouble existed, though Elizabeth Shin had threatened suicide and seen a university psychiatrist.
The Shins sued two years later, and judges in the Shin case rejected MIT’s request for a summary judgment. The judgment and MIT’s decision to settle the nearly $28 million lawsuit sent shockwaves through the university community.
A second case at MIT and a case at the University of Virginia also resulted in undisclosed settlements. States can limit the size of damages sought in lawsuits, but the trend is to erode those limits, industry officials said.
When it comes to foreseeability of harm, education attorneys say a university must be able to act.
If a student can clearly be shown to be a danger to himself or to others, says Meloy of the American Council on Education, a university should be able to remove him.
“Each case depends on its own circumstances,” Meloy said, adding that even if a student doesn’t meet the criteria for being involuntarily committed, administrators still might be able to remove such a student – if their policies and procedures are clear.
“But it’s not a simple matter,” Meloy said.
Vickie Makings and Barbara Hudson of the The Denver Post research library contributed to this report.
Staff writer Chuck Plunkett can be reached at 303-954-1333 or cplunkett@denverpost.com.
