Suicide lawsuits put universities in tight spot

St. Louis Daily Record & St. Louis Countian, May 25, 2006 by Reni Gertner

The following article was originally published in Lawyers USA, another Dolan Media publication.

In an effort to protect themselves from liability for suicidal students, universities around the country may be digging themselves into a deeper legal hole.

In the first round of suicide-related litigation, a handful of universities have been sued for failing to protect students who have harmed themselves.

Two lower-court decisions, one from a state court in Massachusetts and one from a U.S. District Court in Virginia, sent fear throughout the world of higher education. Both courts found that the universities had a duty to protect a student from committing suicide.

In reaction to those cases, many universities have instituted policies that require suicidal students to be removed from school - an attempt to avoid taking on the duty to protect a student from killing himself.

But many experts believe that policy will backfire, leaving the university even more vulnerable.

Universities can be between a rock and a hard place when it comes to protecting emotionally-disturbed students, said Karen-Ann Broe, senior risk analyst for educational insurance company United Educators in Chevy Chase, Md. If a student stays on campus and administrators ignore clear warning signs that the student is suicidal, they could face a wrongful death suit. But if they put the student through an involuntary leave procedure, they could be faced with an ADA suit.

The current trend among universities is to adopt policies aimed at removing students who check themselves into hospitals for treatment for mental illness, according to Karen Bower, senior staff attorney at the Bazelon Center for Mental Health Law in Washington. In addition to suicidal thoughts, some schools have policies that also apply to students with other mental conditions such as anorexia, bulimia and a form of self-mutilation known as cutting.

Since actual suicides are relatively rare compared to the threat of suicide, some experts expect there will be a far greater number of ADA suits compared to those based on failure to protect.

The backlash begins

One case in the second round of suicidal student litigation involved Jordan Nott, an undergraduate at George Washington University who voluntarily went to the hospital because he became depressed and was having suicidal thoughts after a close friend committed suicide.

A day and a half later, Nott received a letter stating that his endangering behavior violated the school disciplinary code and that he faced possible suspension or expulsion - unless he withdrew from school and deferred the charges while getting treatment. He was banned from university property immediately, according to Bower, who represents him in the case.

In response, Nott sued the school and individual administrators under the ADA, alleging that the university betrayed him by suspending him in his time of need and by sharing confidential treatment information. The case is pending in the D.C. Superior Court.

Experts said this is only the beginning of the backlash against universities for how they treat suicidal students.

A lot of college administrations have been oblivious to the ADA, and as a result, there are going to be more cases like the Nott case, said Gary Pavela, director of judicial programs at the University of Maryland. The public is also much more aware of the protections under the ADA that apply in this context and recognizes that colleges have this hair-trigger risk aversion that can be challenged.

Despite the possible dangers, some contend colleges are better off doing whatever they can to prevent students from killing themselves on campus - even if it means a lawsuit.

I'd much rather fight a civil rights claim than a death case, said Peter F. Lake, a law professor at Stetson University in DeLand, Fla. and co-author of The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life?

Regardless what type of policy a college adopts, legal experts agree the best policy is to institute policies and procedures that will protect them from litigation altogether.

Mandatory leave

The surge in mandatory leave policies at colleges was prompted by two state court decisions which said that a college has a duty to prevent a student from committing suicide where the risk is foreseeable. (Schieszler vs. Ferrum College, 233 F. Supp. 2d 796 (W.D. Va. 2002); Shin vs. Massachusetts Institute of Technology, 19 Mass. L. Rptr. 570 (Mass. Super. 2005).)

These rulings represent a pretty radical development in the law, said Pavela, who wrote the book, Questions and Answers on College Student Suicide: A Law and Policy Perspective. Both cases have since settled.

What seems to be lost in the rush to institute new anti-suicide policies is that the Iowa Supreme Court held the other way, finding that a university didn't have a duty to protect a suicidal student by telling his parents of his previous suicide attempt. (Jain vs. State, 617 N.W.2d 293 (Iowa 2000).)

But universities across the country have taken the other cases to heart and are now trying to remove suicidal students before they take any more serious action.