Student suicide has received renewed attention both in the US and Canada, not only because of the increased number of suicides by college students (with research studies indicating that as many as 1.5% of college students may actually attempt suicide, while many others will give suicide serious consideration at some point during their years on campus) but also because of increased legal scrutiny and the legal liabilities incurred by failing to address a risk of student suicide proactively and speedily.
In an interview this week, we asked Allan Shackelford to offer his reflections on the issue. As an attorney and consultant, Allan Shackelford has advised institutions of higher education for more than 30 years. He is the co-author (with Anne Lundquist) of The Student Affairs Handbook: Translating Legal Principles into Effective Policies, as well as Responding to and Supporting Students with Disabilities: Risk Management Considerations.
You can find his recommendations below.
Legal Ambiguities: Forseeability and Liability
Citing Robert Bickel and Peter Lake's study The Rights and Responsibilities of the Modern University (1999), Shackelford notes that institutions of higher education owe a legal duty to students to protect them in every reasonable manner from forseeable risks:
"At the heart of our institutional responsibility toward students," Shackelford remarks, "is the view that we have a 'special relationship' with students and they with us. 'Foreseeability' has become an especially important concept in the current evolution of legal theory related to higher education -- and ultimately in a number of cases that have found both institutions and administrators liable for student suicides."
THE COMPLEXITY OF THE ISSUE
Considering an institution's liability is a nuanced issue. Shackelford unpacks the complicating factors:
"The issue of how to respond appropriately and legally to students who may pose a risk of harm to self and potentially a risk of suicide has been made more ambiguous and complex by changes made to Title II and III of the ADA and related protocols. These revisions, made by the Department of Justice and the Department of Education's Office for Civil Rights (OCR), took effect on March 15, 2011. Pursuant to these changes, if taken literally, the ability to respond to a 'direct threat' for both public and private institutions of higher education is limited to students who pose 'a significant risk to the health or safety of others' and not students who pose a potential risk to the health or safety of themselves.
"This has left campuses and various higher education related associations wondering how to respond to students who pose a threat of harm to self without violating the ADA. It is especially puzzling because the change is directly contrary to the policies and protocols regarding 'direct threat' and involuntary withdrawal that the OCR had repeatedly mandated over the years in several compliance letters sent to various colleges and universities--for example, Guilford College (2003), Bluffton University (2004), DeSales University (2005) and Marietta College (2005). It is also at odds with the civil cases that have held institutions and individual administrators liable for student suicides under the theory that they had "a duty to protect" students from 'foreseeable risks.'
"There have been several attempts to persuade the OCR to revisit this issue. For example, on January 20 last year, representatives from NASPA and the National Association of College and University Attorneys (NACUA) met with representatives of OCR and outlined numerous health, safety and legal issues related to this policy change. The subjects of this discussion were confirmed in a follow-up letter to the Senior Counsel of OCR dated February 24, 2012. While there have been rumors that the substance and effect of the regulatory changes were being revisited by the OCR, nothing has happened to this point."
What You Need to Do
Given this disconnect between the mandates from the Departments of Justice and Education and the reality of what can occur unexpectedly on your campus when a student poses a risk of harm to self, what are you supposed to do?
First, Shackelford advises, it is absolutely critical to prepare by putting in place policies and infrastructure that are guided by prevention strategies and best practices for responding to student behavioral issues:
- "Employ counseling, conduct, case management, bystander intervention, online self-screening to identify mental health risk factors, and other initiatives that will position your campus to respond appropriately and creatively to the increasing number of students with significant mental health issues."
- "Use mental health data from national surveys--such as those of the American College Health Association (ACHA)--to evaluate the responses of your student population. Informed by your data, focus your prevention initiatives to target high-risk behaviors."
When confronted with a difficult scenario, consider these 6 action steps:
1. "Engage your legal counsel at the beginning of the discussion because of the complexity of the interrelated risk and legal issues involved. One word of caution which your legal counsel may not like hearing: Attorneys can be risk averse in their analysis of issues where the correct outcome is not clear, and decisions involving and affecting the best interests and lives of students should not primarily be driven by perceived legal risks."
2. "Focus on the use of your voluntary withdrawal protocols. Be flexible and non-confrontational regarding your policies and practices concerning completing present course requirements, tuition refunds, reinstatement, etc. The expelled student who returned to Oikos University (Oakland, CA) on April 2 last year and shot and killed seven people was apparently enraged by a dispute over a requested tuition refund." (Allan Shackelford offers more reflection on the Oikos University incident in our April 2012 article offering cautionary advice related to expelling students.)
3. "Remember that the difference between potential harm to self versus potential harm to others can sometimes be an illusory distinction. This should always be considered during your individualized assessment process."
4. "Involve your behavioral intervention or threat assessment team in your review process."
CREATING AN EFFECTIVE BEHAVIORAL INTERVENTION TEAM
In August 2011, Academic Impressions interviewed Gene Deisinger, deputy chief of police and director of threat management services at Virginia Tech, for his advice on:
- How to establish early behavioral intervention teams or threat assessment teams when challenged to do more with existing resources (read this article)
- Pitfalls to avoid when establishing early behavioral intervention teams or threat assessment teams (read this article)
We hope these free resources will be useful to your institution.
5. "Factor your student conduct/disciplinary code into the review and assessment of what is occurring. Students with disabilities are not exempt from being held accountable under generally applicable conduct standards."
6. "Consider the potentially conflicting legal obligations and liabilities under applicable federal or state court decisions and other potentially relevant state laws."
While it is of course crucial to understand and assess your legal obligations, Shackelford does offer the sobering caveat that when you are faced with a situation in which a student does pose an imminent risk of harm to self, violation of a federal regulatory standard may not be the worst of the possible outcomes of that situation.
"We must be committed to making the right decision -- taking into account the best interests of the individual student involved, the interests and needs of other students affected and of our campus community generally, and the interests, mission, values, reputation, and the safety and security of the institution itself."