UB op-ed: Legal lessons on student suicides and assaults

A short guide for college and university presidents, administrators and trustees
George Birnbaum is a lawyer whose firm provides executive employment counsel to top-position candidates in higher education, media and financial services.

Recent decisions by the highest courts of two states, California and Massachusetts, offer important guidance as to when a college or university can be held liable for money damages when one student harms another student by an assault, or harms themselves by committing suicide.

Although these cases come from states whose courts are among the most progressive in the country, college administrators and trustees in other states should not assume that they can ignore the lessons of these cases just because their own institutions are located in a “red” jurisdiction.

The courts in both cases acknowledge that, since the mid-1970s, societal and legal trends have moved away from imposing liability on educational institutions based on the old theory that the institution stands “in loco parentis” to its students. Those students, the courts further acknowledge, are mostly adults, with their own rights and privileges in the eyes of the law, as well as having adult responsibilities to and for themselves and to others. Despite this trend, both recent cases outline the factual settings in which the courts in their states nonetheless will hold a college or university legally responsible for a student’s self-harm or harm to another student.

Liability for harm to others

In the California case (Regents of the University of California v. Rosen), a student with an elaborate history of hearing voices in his head — often other students criticizing him — seriously stabbed another student in a chemistry lab. In the year leading up to the assault, multiple UCLA administrators, mental health professionals and interview teams had been told by the assailant about his “voices” and had made a diagnosis of mental illness based on these auditory hallucinations. Although the assailant had repeatedly said that he would not hurt another student, UCLA administrators had facilitated at least two residence moves and repeatedly tried to get him to avail himself of both therapy and medication.

The California lower court had thrown out the injured student’s lawsuit, but the California Supreme Court reinstated the case, finding that UCLA owed a duty of care to its students during “curricular activities,” and that the question of whether the school had in fact breached that duty, given the substantial number of UCLA personnel who knew about the serious mental illness of the student who committed the assault, would have to be determined by the lower court at trial.

In this California case, a predictably large number of other educational institutions made “Friends of the Court” submissions to argue that if the Court did decide there was a duty on the part of UCLA to keep its students safe from a deranged fellow student, thereafter all colleges and universities would be quick to reject students who presented any profile or history of mental illness, or, having admitted them, would promptly remove them after learning about their problems.

The California Supreme Court rejected this argument, a decision which arguably leads to a sort of Hobson’s Choice: if a student shows signs of serious, let alone potentially dangerous mental illness, a university or college will have to decide whether to leave the student in place and thereafter risk monetary liability for any harm which might occur to another student (at least during “curricular activities”), or, alternatively, expel the mentally disturbed student (or refuse admission to any applicant with a troubling history of mental illness) and risk being sued by the rejected student on, among other possible legal theories, the grounds that the school’s action violated the American with Disabilities Act. Of course, the various state and Federal laws subjecting student health issues to privacy protection may lessen or eliminate the concern that schools will no longer admit any student with documented mental health issues, but this simply may shift the focus to what the university learns about the student after he or she arrives on campus.

Read: 6 keys for an effective school or university investigation

Given such a choice, I suspect that any student who repeatedly reports hearing troublesome imaginary voices from other students or faculty is going to get a one-way ticket home.

The California decision does have certain explicit limitations:

  • If the college or university doesn’t know about the mental health problems of a particular student, there can be no duty or liability on the part of the institution.
  • The scope of the school’s duty to protect other students as articulated by the California Supreme Court is limited to “curricular activities.” Indeed, one of the California judges, in a concurring opinion, stated his belief that “curricular activities” is too vague; that judge would have limited the duty only to the classroom setting, which is where the assault in the case actually took place.
  • If the deranged student had stabbed another student on a date, presumably the school’s duty would not exist. But what is a “curricular activity”? A non-credit dance class sponsored by the college? Attendance at a school-sponsored football game? Walking from one required class to another? Only time, and further legal decisions, will answer these questions.

Finally, although the California Supreme Court in the UCLA case announced the existence of a duty on the part of the university, the trier of fact, whether judge or jury, will have to decide whether UCLA actually breached its duty under the particular facts of that case.

The California Supreme Court’s lengthy recitation of the facts suggests that a number of university administrators and mental health professionals had spent many hours trying to help the disturbed student, whom they recognized was delusional.

Was it sufficient that they repeatedly asked him whether he would hurt himself or another student based on the voices in his head, and he repeatedly had denied that he would do so? (And how reliable is any answer by such a disturbed student?)

I am glad I am not the judge who will have to preside over the trial of this UCLA case. The outcome is far from clear.

For presidents, administrators and trustees of institutions of higher education, it is not enough to know about the general duty outlined by the California Supreme Court. What to do with that knowledge is discussed here.

Liability for harm to oneself

Given the statistics on the widespread and growing phenomenon of student suicide, college administrators are likely to be more concerned about suicide than they are about student-on-student assault. According to the American College Health Association (ACHA) the suicide rate among young adults, ages 15-24, has tripled since the 1950s, and suicide is currently the second most common cause of death among college students. Indeed, the emotional and legal repercussions of student suicide have become front page news (see the New York Times article of Sunday, May 13, 2018, entitled “His College Saw Despair. His Parents Didn’t. Until It Was Too Late.”)

As a result, the recent decision of the Supreme Court of Massachusetts (Nguyen v. Massachusetts Institute of Technology), while exonerating MIT from liability for the death of an MBA student who killed himself, received national attention by suggesting that there could be certain circumstances under which a college or university would be held legally responsible for the death of a student by suicide.

Stated simply, the Massachusetts Court said that a university or college has a duty to take action to protect any student when it obtains knowledge that the student:

  • has attempted to commit suicide while actually attending the institution or shortly before entering the institution
  • has explicitly told school personnel about an intention to act on his or her suicidal thoughts.

What is the school’s responsibility?

According to the Massachusetts Court, once the school has knowledge of “known suicide threats or [recent] attempts,” it must invoke its “suicide protocol” if there is one (and after this case, every school that does not have such a protocol is best advised to promulgate one) or, if there is no protocol, the school must contact appropriate emergency personnel to intervene. The school is also well advised to notify the student’s designated emergency contact.

Having identified this duty on the part of colleges and universities, the Massachusetts Court went out of its way to make it clear that the duty is limited to the school’s obligation to take reasonable and appropriate preventive measures in situations of known danger; and that even with actual knowledge of the likelihood that a student may commit suicide, the school is not a guarantor that the student will not harm himself.

The Massachusetts Court also made it clear that university administrators who are not medical or psychological professionals should not and will not be held to the same standards as clinicians or trained health workers.

Finally, the Court found that the conduct of MIT and its administrators in the case at issue could not be faulted because the particular behavior of the student who killed himself had not triggered any duty on MIT’s part. The MIT student’s prior suicide attempt or attempts were several years in the past and therefore not sufficiently recent to justify any action on MIT’s part. Moreover, the student actually had denied any current suicidal ideation and made no current threats of suicide to any MIT administrator; indeed, the student had informed MIT that he was seeking help for his personal problems outside the MIT mental health system, and wanted to limit MIT’s involvement to purely academic problems, such as his test-taking anxiety. Thus, under the facts of this case, there could not be a duty on the part of MIT.

Nonetheless, by its extensive discussion of the circumstances under which a college or university would have a duty to take certain actions to attempt to avert or at least lessen the chance of a student’s suicide, the Supreme Court of Massachusetts has raised more questions than it answered.

For example, when is the school deemed to have been put on notice that it must act?

Under the Massachusetts decision, if a student tells a senior administrator that he or she is seriously contemplating suicide, the answer is clear: there is a duty to take prompt action. But what if a lonely student tells a campus maintenance worker who has befriended him that the student is feeling suicidal? Is that enough to put the college or university on sufficient notice for the duty to arise? What about telling the student’s resident advisor? A professor or teaching assistant? Such folks are lay persons when it comes to mental health. They also are not even close to having the same legal responsibilities as senior administrators or officers of the university whose acts may bind the university under traditional theories of agency law.

And that’s one of the most obvious questions which could arise given the variety of factual possibilities.

The only outcome of the Massachusetts case which can be predicted with certainty is that future courts will hear much more about these issues as plaintiffs’ lawyers, hired by families who are understandably overwhelmed by feelings of grief, anger, shame and confusion about whom to blame for an unspeakable personal and family tragedy, test the limits of the Massachusetts decision, both there and in other jurisdictions.

But while the full legal ramifications of these recent court decisions are both complicated and unclear, the practical “takeaway” for senior leaders in higher education are relatively straightforward:

  • Every college and university must put in place clear, detailed protocols for dealing with students who are or may be actively suicidal or who, by reason of obvious mental health issues, might pose a danger to other students;
  • There must be institution-wide training as to when and how these protocols must be invoked;
  • When a student commits suicide or harms another student, a lawsuit will almost certainly follow. Accordingly, any student problem or threat, or any evidence of the potential effects of mental illness, should not be colored by wishful thinking about the best possible outcome, but must be viewed as the preface to a foreseeable tragedy, even if such a stark view sometimes leads to institutional “overkill”;
  • Every college and university need to have liability insurance, sufficient in amount and specificity of coverage, to address student self-harm and harm to others.

The California Supreme Court explicitly stated, in its decision, that these are insurance issues.

And is it not coincidental that the Massachusetts Supreme Court places its discussion of “moral blameworthiness” on the part of the educational institution right next to a pointed comment on the current high cost of college tuition. Indeed, as with many other societal issues, the economic preparedness of a college or university must rise to the same high level as the necessary preparedness of emotional and crisis management resources to deal with such horrifying events as student suicide or assault.

As that former Amherst professor Robert Frost once said: “Provide, provide.”

George Birnbaum is a lawyer in private practice (www.gbirnlaw.com) whose firm provides executive employment counsel to top-position candidates in higher education, media and financial services.

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