Universities Come Down Hard on Troubled Students

Universities Come Down Hard on Troubled Students

by Michelle Kaminsky, Esq., December 2009

When a student is suicidal, what should the university do? Or, more precisely, what is the university's legal duty, if any?

These are questions that many universities are struggling to answer. Although many schools provide adequate counseling services, an increasing number of schools are resorting to banning students who have attempted suicide or who are suicidal from university housing. Additionally, some colleges are considering looser privacy policies to allow the release of information of students who have sought counseling.

Do these two changes violate students' rights? Quite possibly yes.

In one recent case involving New York's Hunter College, a student was barred from her dormitory after she had attempted suicide by taking 20 Tylenol and calling 911. The student recovered, but when she returned to her apartment, she found the door locked with her belongings inside. Three years ago, Hunter College adopted a policy requiring the automatic semester-long expulsion from university housing of any student that harmed or attempted to harm himself or herself.

The student sued the school, claiming it illegally discriminated against her as a disabled person, citing violations of the Americans with Disabilities Act (ADA), the Fair Housing Act, and the Rehabilitation Act. The suit was settled out of court with Hunter College agreeing to pay the student $65,000 and rescinding its suicide policy. The school was quick to note, though, that under any new policy, suicidal students still may be asked to leave student housing, but there would no longer be automatic expulsion.

In another ongoing lawsuit, a former student has sued George Washington University because he was banned from campus after he checked himself into a hospital for depression following the suicide of a classmate. During the first full day of his hospital stay, the student received a letter from the university administration informing him that his "endangering behavior" had violated the student code of conduct, and that if he returned to campus, he could face suspension or expulsion.

This student also claims a violation of the ADA, among other federal laws;incidentally, in 2005, the U.S. Department of Education specifically informed several federal aid receiving schools that the ADA does cover people with mental illness.

So what is a university's legal duty regarding suicidal students?

Up until the 1970s, institutions of higher learning were seen as taking the place of the parents away from home, or standing "in loco parentis." This idea changed, though, as students increasingly wanted to be seen as adults, and so for the last 30 years or so, for the most part, students have been held responsible for their own actions. One of the results of that time period was the 1974 Family Educational Rights and Privacy Act, which prohibits colleges from sharing personal information of a student—even with a parent—without the student's consent.

But now, schools such as George Washington University are considering counseling waivers, which would provide administrators with information on students seeking on-campus counseling. Alternatively, the state of Colorado's lawmakers are considering legislation that would require students seeking counseling to waive their right to privacy, allowing counselors to inform anyone they choose if a student is suicidal or a danger to himself, herself, or others.

Why the shift from long-standing privacy policies in residential contracts?

Universities are increasingly afraid of liability if a student commits suicide or harms others on campus. This fear arose because trial courts in two cases, one involving Virginia's Ferrum College and the other the Massachusetts Institute of Technology, found that colleges and students may share a special relationship that imposes a duty on the schools to prevent student suicides if the risk was foreseeable. Both of these cases were settled out of court before a higher authority could have its say. The effect however has meant significant changes in university policies regarding privacy and residential contracts.

Make no mistake, suicide is a real problem at universities, as it's the second leading cause of death for college-aged students; nationwide, approximately 1,100 college students take their own lives. In a 2004 survey by the American College Health Association, of the 47,000 students questioned, 1 in 10 had considered suicide. Moreover, the number of college students taking psychiatric medications seems to be increasing; a 2005 University of Pittsburgh led National Survey of Counseling Directors found that 95% of schools reported an increase in the number of freshmen who arrived on campus already taking psychiatric medications.

So what's a school to do? First, schools should continue to abide by well-established privacy policies and not compromise patient confidentiality; remember that many states already have in place a psychiatrist's duty to warn others if a patient is a danger to himself, herself or others.

Next, universities should do away with blanket suicide policies that require suicidal tudents to leave campus housing. Karen Bower, senior attorney with the Bazelon Center for Mental Health Law, puts it this way: "The real danger of these policies is that they discourage students from getting the help that they really need." A policy that penalizes a student for seeking help for a suspected mental illness only encourages the student to try to mask the problem—a solution that could potentially put everyone at risk.

Universities should consider each case individually as to whether a student poses a threat to himself, herself, or others. The Department of Education's Office for Civil Rights states that a person should be considered a threat only where there is "a high probability of substantial harm and not just a slightly increased, speculative or remote risk."

One policy often cited as a good balance of all the competing issues is that of the University of Illinois, which requires students expressing suicidal thoughts to see a counselor for four sessions or they must leave school. In the nearly 20 years that this policy has been in effect, more than 1800 students have passed through the program with no suicides and only one student forced to leave the school.

What about parents though?

Parents of college students should always watch for signs that their children may be having emotional difficulties—a sudden drop in grades, withdrawal from activities he or she always enjoyed, and dramatic mood or behavior changes are just a few. Before a student steps on campus, though, all parents, especially those of children with existing mental health issues, should investigate the mental health care policies of child's list of potential schools before enrollment. Look at the privacy policies, residential contracts, number of counselors available, usual wait to see someone, and availability of off-campus help.

A little research before enrollment can make a big difference later on.