Legal Rights of Mentally Ill Students Often at Odds with Public Safety

Following the deadly shooting rampage on the campus of Virginia Tech, colleges and universities across the country have been faced with a rather difficult quandary to address going forward: How is it possible for schools to protect the rights of their mentally ill students while simultaneously ensuring the safety of the faculty and the rest of the student body?

The failure to achieve a proper balance on this issue leaves colleges and universities vulnerable to legal action on both sides of the ledger. Schools can face lawsuits if they choose to expel or take disciplinary action against students with mental-health problems; on the other hand, their failure to deal with potential threats from mentally ill students can lead to horrific violence on their campuses that may leave them susceptible to legal action for failing to protect their communities.

For example, consider the case of former George Washington University student Jordan Nott. According to the school newspaper, the GW Hatchet, university officials removed Nott from school housing and barred him from campus following meetings he had with school counselors that dealt with his severe depression. Nott proceeded to sue the school for what he had called unfair treatment of mental patients; he was upset that both the University Counseling Center and GW Hospital shared his personal medical information with school administrators. The suit, filed in D.C. Superior Court and believed to be worth more than $100,000, was settled last fall; Nott had enrolled in another school by then. In addition, a student at Hunter College in New York filed a similar suit after being expelled following an alleged suicide attempt; that college also settled last fall.

“What we have here is a conflict,” GW President Stephen Joel Trachtenberg told The GW Hatchet last week. “You have a conflict between the rights of the individual and the rights of the community. And what you’re searching for is balance.” Despite the suit brought by Nott, GW officials stand by their decision to remove him from school. “You do have to look at the bigger issues, particularly when the student is living in a residence hall,” said GW official Tracy Schario. “Acts have an effect not only on them but other members of the community.”

It is interesting to note that, according to the Chronicle of Higher Education, “Virginia recently became the first state to pass legislation that bars 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.’”

The particulars of the Virginia Tech case have, of course, renewed the debate about how universities deal with students with poor mental health. On one hand, Seung-Hui Cho was known to be disruptive and unpredictable and he inspired fear in his teachers and classmates. He had been brought to the attention of state mental-health officials, who found that he presented “an imminent danger to himself as a result of mental illness.” However, Cho had not engaged in any violent or criminal acts, had not made specific threats against any individual, and was eventually released from his involuntary commitment.

Had Virginia Tech chosen to expel him from school, they may have faced legal challenges especially in light of the new Virginia state law. Unfortunately, their decision to allow him to return to school turned out, in hindsight, to be a critical mistake. The question now facing legal experts is whether or not school officials acted in a “reasonable way” and whether or not the tragedy was “foreseeable” to them in any manner. (The news today indicates that one of the victims had had several previous contacts with the gunman.)

Also at potential legal risk are the various mental-health professionals that examined Cho, who are facing questions about the accuracy and wisdom of their diagnostic decisions.

As the Chronicle of Higher Education notes in their new issue, “A judge checked a box indicating that Mr. Cho presented an immediate danger to himself, according to court papers. But a medical examination found that ‘his insight and judgment are normal’ and outpatient care was recommended. If he had been committed at the time, federal law would have permanently prevented him from legally purchasing the two handguns used in the killings.

“The key phrase is ‘imminent risk.’ For serious measures to be taken, a patient’s behavior must rise to that level.”

Today, a range of civil-rights and medical-privacy laws, including the Americans with Disabilities Act and the Family Educational Rights and Privacy Act, offer wide (and often necessary) protection to mentally ill students. But the presence of these laws has made the balancing act that colleges must pull off between the rights of the individual and the safety of the public that much more difficult. In fact, many legal experts believe that Virginia Tech administrators will proactively offer settlements to the victims’ families in order to avoid legal battles and negative publicity.

The latest tragedy will most likely renew a vigorous debate about how colleges and universities deal with mentally troubled students. Most experts agree that the solution lies in the schools’ preparation. A set of clear administrative policies and procedures regarding mentally ill students and increased training for professors and counselors may help mitigate the problem protecting communities from violence and schools from legal liability.

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