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Juliana sleeper - Writing Sample CivLaw and Psychiatry

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Juliana sleeper - Writing Sample CivLaw and Psychiatry

Juliana sleeper - Writing Sample CivLaw and Psychiatry

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  • 1. Self-Harming Mentally Ill Students and University Policies Outline of Contents I. Introduction II. Tort Law & Suicide Liability A. General Rule and Exceptions B. Evolving Case Laws on Student Suicide and College Liabilities a. Traditional Tort Rule Applied – Bogust v. Iverson b. Exception to General Rule : Causation - Wallace v. Broyles c. Exception to General Rule : Duty – Schieszler v. Ferrum College III. Universities‟ Responses to Increasing Lawsuits & Legal Implications A. Mandatory Withdrawals a. Guilford College b. Marietta College B. Campus Housing Refusal C. Legal Implications IV. ADA & Universities‟ Policies A. Brief ADA Overview a. General b. Qualified Individual 1. Mental Disability 2. Major Life Activities 3. Substantial Limitation c. Discrimination B. Direct Threat Defense a. General b. Case Law – Ascani v. Hofstra University c. OCR Decisions C. Direct Threat Defense Misunderstood by the OCR a. Statutory Language of Title I, II, and III b. Title I & Title III Regulations c. New Title II Regulations V. Model Policy: Escalation of Help Program A. New Approach Needed B. Escalation of Help Program a. Mandatory Counseling b. Mandatory Guardian Meeting c. Options to Live with Parents or Guardians d. Mandatory Withdrawal with Option to Return VI. Conclusion
  • 2. 1 I. Introduction James Seevakumaran was a former student from University of Central Florida. 1 Even though he was no longer attending the school he still lived in the school‟s dormitory.2 The school was in the process of evicting him when he committed suicide.3 According to his roommate, he was an anti- social individualwith money trouble, but nobody saw him as a danger to others or to himself.4 Seevakumaran never visited theuniversity‟s counseling center and the university found no record indicating he was mentally unstable.5 However March 20, 2013 Seevakumaran killed himself after his failed attempt to go on a killing spree on campus.6 He had planned amassive campus attack with his homemade bombs, an assault rifle, and a handgun; but before he could kill anyone, the authorities responded and apanicked Seevakumaran took his own life. 7 Undoubtedly Seevakumaran had an undiagnosed mental illness that led him to be suicidal. Seevakumaran is not alone amongcollege students. More than fifty percent of college students feel suicidal.8 However, only twenty-six percent of college students are aware of their school‟s mental health services.9 Even when they are aware of the services, most students conceal their suicidal thoughts and do not seek help.10 Because of these circumstances, suicides among college students are rapidly rising.11 Between 2007 and 2011, suicides by male students grew by 36% and doubled for female students. 12 Suicide has become the second leading cause of death among college students.13 While the student suicide rate rose, universities‟ legal liabilities for studentdeaths increased as well. Consequently universities became more concerned about how to defend their potential tort liability lawsuits arising from students‟ suicides. Universities have been implementing policies that they believe will prevent lawsuits. Unfortunately, however, the policies also keep studentsfrom seeking help. This note will discuss how universities‟ current policies do not in fact shield them from 1 Former UCF student who killed himself had planned wider attack, Orlando Sentinel, http://articles.orlandosentinel.com/2013-03-19/news/os-ucf-death-suspicious-evacuation- 20130318_1_dorm-room-beary-assault-rifle (last visited Apr. 20, 2013). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. 7 Id. 8 David J. Drum, New Data on the Nature of Suicidal Crises in College Students: Shifting the Paradigm, 2009, Vol. 40, No. 3, 213–222 (Oct 9, 2008). 9 Id. 10 Preventing Suicidal Behavior Among College and University Students, National Center for Prevention of Youth Suicide, http://www.suicidology.org/c/document_library/get_file?folderId=261&name=DLFE-558.pdf, (last visited Apr 20, 2013). 11 Published ad hoc data and analysis: Health and Social Care, requests during November 2012, Office of National Statistics, http://www.ons.gov.uk/ons/about-ons/what-we-do/publication- scheme/published-ad-hoc-data/health-and-social-care/november-2012/index.html, (last visited, Apr 20, 2013). 12 Id. 13 More Than 50% of College Students Felt Suicidal, abc News, http://abcnews.go.com/Health/DepressionNews/50-college-students-felt- suicidal/story?id=5603837#.UVWsAFo-uXQ, (last visited, Apr 20, 2013).
  • 3. 2 legal liabilities, and the note will explore alternate policies to reduce legal liabilities for the schools. The note uses „university‟, „college‟ and „school‟ interchangeably to refer to higher education institutions. Part II of this note offers a brief overview of Tort Law and suicide liability. Part III reviews various university policies in response to increasing tort lawsuits. Part IV analyzes thelegal implications of university policies, focusing on the ADA. Part V advances my model policy, “Escalation of Help Program(EHP)”, a suggestion for the universities to follow. II. Tort Law and Suicide Liability A. General Rule and Exceptions Historically the law did not allow plaintiffs‟ recovery from suicide.14 Traditionally people believed taking one‟s own life is abnormal, immoral and sinful.15 Thus states imposed lawsmaking suicide unlawful.16 Once a person died as a result of such an unlawful act, he was barred from recovery.17 Even when suicide no longer was unlawful, tort law did not provide recourse for the plaintiffs.18 Traditional tort rules regarded suicide as a voluntary act, which broke the causal connection between third party‟s negligent action and decedent‟s death.19 Accordingly, the courts did not hold educational institutions liable for students‟ deaths.20 Such historical background formed thegeneral rule of law that bars damages in actions seeking compensation for the decedent‟s suicide. 21 However since the late 1990s the courts have evolved their view of suicide and carved out two exceptions to the general rule22 : (1) if the defendant is found to have actually caused the suicide or (2) if the defendant is found to have had a duty to prevent the suicide, the defendant may be liable for the decedent‟s death and plaintiffs can recover damage.23 It is rare for the third party to have been considered to cause a decedent‟s suicide, unless the defendant was negligent or reckless.24 It is more common to find cases where the plaintiffs argue that the defendant had the duty to prevent the decedent‟s suicide.25 While a defendant seldom has duty to prevent one‟s suicide, affirmative duty may rise where a special relationship exists.26 For the last three decades the courts have been more likely to find a special relationship between the colleges and their students. B. Evolving Case Laws on Student Suicide and College Liabilities a. Traditional Tort Rule Applied – Bogust v. Iverson 14 Stuart M. Speiser, Recovery for Wrongful Death § 2:8 (4th ed.), (July, 2012). 15 Id. 16 Id. 17 Id. 18 Id. 19 Id. 20 Elizabeth Wolnick, Depression Discrimiation: Are Suicidal College Students Protected by the Americans with Disabilities Act, 49 Ariz. L. Rev. 989, 992 (2007). 21 Id. 22 Id. 23 See McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983) 24 49 Ariz. L. Rev. 989, 993 25 Id. 26 See Patricia C. Kussmann, Liability of doctor, psychiatrist, or psychologist for failure to take steps to prevent patient's suicide, 81 A.L.R.5th 167 (2000); C. T. Drechsler, Civil liability for death by suicide, 11 A.L.R.2d 751 (1974); Winger v. Franciscan Med. Ctr., 299 Ill.App.3d 364, 701 N.E.2d 813 (Ill.App.1998).
  • 4. 3 Bogust v. Iverson is the first significant case pertaining to college student suicide and a school‟s liability.27 Bogust was astudent at Stout State College.28 She was under the direct guidance and supervision of the defendant, Iverson, from November 1957 and April 1958.29 Iverson was employed as a full time director of student personnel services and a professor of education with a Ph.D.30 Iverson administered Bogust‟s aptitude and personality tests, and he was familiar with her personal, social and educational problems and her conflicting feelings, environment and her emotional disturbances.31 Although Iverson knew that she was constantly in need of professional guidance, after April 1958, Iverson suggested termination of future counseling of her problems.32 In May 1958, Bogust took her own life, and her parents brought suit against Iverson.33 The Supreme Court of Wisconsin stated that Iverson was merely an educator and could not be charged with the same degree of care as a person trained in medicine or psychiatry could exercise.34 Even if Iverson performed a duty similar to a psychologist, the court refused to impose “duty of mental health professional (to its patient)” on Iverson.35 Moreover the court rejected the parents‟ claim that Iverson negligently caused Bogust‟s death by failing to secure professional medical help for her.36 The court stated that Iverson could not haveknown that Bogust had suicidal tendencies.37 Furthermore, the court concluded that Iverson could not be liable for Bogust‟s suicide even if he had been aware of her psychiatric condition because her suicide was an intervening cause of her injuries that broke the chain of causation between any act of negligence on Iverson‟s part and Bogust‟s decision to take her own life.38 b. Exception to General Rule: Causation - Wallace v. Broyles Shannon Wright, son of the plaintiff Jacqueline Wallace, was a varsity football player at theUniversity of Arkansas.39 In September 1993, he injured his shoulders severely while playing for the school.40 The school illegally dispensed him heavy dosages of a controlled drug for his shoulder pain.41 The school did not advise him of any potential dangerous side effects.42 In particular he was not warned against the risk of addiction, the danger of combining thedrug with alcohols and potential depression.43 He died of a self-inflicted gunshot wound in October 1993.44 27 Richard Fossey& Heather E. Moore, University Tort Liability for Student Suicide: The Sky Is Not Falling, 39 J.L. & Educ. 225, 229 (2010). 28 Bogust v. Iverson, 10 Wis.2d 129, 132 (1960). 29 Id. 30 Id. 31 Id. 32 Id. 33 Id. 34 Id. at 134. 35 Id. 36 Id. 37 Id. 38 Bogust, 10 Wis.2d at 134. 39 Wallace v. Broyles, 961 S.W.2d 712, 713 (1998). 40 Id. 41 Id. 42 Id. 43 Id. at 717. 44 Id.
  • 5. 4 In 1998, The Arkansas Supreme Court held that there was a sufficient evidence to support Wallace‟s suit against the university administrators because the evidence manifested that the school‟s illegal prescription of a controlled drug without proper warningsled Wright to commit suicide.45 The Wallace decision alerted colleges that they potentiallycould be liable for their students‟ committingsuicides and they were no longer immune from lawsuits arising froma student‟s self destruction.46 c. Exception to General Rule: Duty – Schieszler v. Ferrum College Frentzel was a student at FerrumCollege.47 He caused a few troubles the first semester he attended Ferrum and they resulted in some undisclosed disciplinary sanctions.48 University administrators kept a close eye on Frentzel due to these sanctions.49 Administrators requested thatFrentzelattend anger management class before returning for hissecond semester at Ferrum.50 He complied with the request and returned to Ferrum for a second semester.51 Two months into his second semester, he had an argument with his then girlfriend, Crystal, and campus police intervened.52 Around the same time, he wrote a note to Crystal saying that he would kill himself.53 Crystal showed the note to the campus police.54 When the police responded to the note and visited his dorm, they found him with self-inflicted bruises to his head. 55 The police notified school administrators.56 Administrators required Frentzel to sign a statement promising not tohurt himself again.57 The school did not provide help or suggest that he get help from a mental health professional.58 A few days later Frentzel wrote another note to a friend implying he would commit suicide.59 Again within a few days he wrote his last note saying, “Only God can help me now.”60 School administrators were informed about both incidents but took no action until a few days after the last note.61 When school administrators visited Frentzel after his last note, he had already committed suicide.62 Frentzel‟s guardian, Shcieszler brought a wrongful death suit against the school.63 The Virginia District Court held that Ferrum College had a duty to prevent the suicide and thus the school was liable for Frentzel‟s death.64 The court found there was a special relationship between 45 Id. at 718. 46 49 Ariz. L. Rev. 989, 994. 47 Schieszler v. Ferrum College, 236 F.Supp.2d 602, 605 (W.D.Va.2002). 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 Id. 57 Id. 58 Id. 59 Id. 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. at 614.
  • 6. 5 the school and Frentzel that gave rise to an affirmative duty to prevent his death.65 The court imposed this special relationship because the school had received specific notices that Frentzel‟s suicide was probable and imminent; the foreseeability, combined with school‟s clear awareness of his circumstances, had created the relationship.66 However, the court clearly distinguished between affirmative duty and assumed duty.67 The school was liable not because the school had assumed duty as a guardian to its students but because it was aware of this student‟s (Frentzel‟s) situation and could have foreseen the harm.68 Such imposition of the duty was the first instance of an American college accepting liability for its student‟s suicide.69 Three years after, in 2005, MIT was also found liable for its student‟s suicide for breaching its duty to the student.70 As more and more of these case laws were decided in the early to late 2000s, the Universities started to implement policies to protect themselves from the wrongful death liabilities.71 III. Universities’ Responses to Increasing Lawsuits & Legal Implications A. Mandatory Withdrawals As a proactive measure of preventing student suicide (on campus), many universities and colleges require the suicidal student to withdraw from the institution temporarily or permanently.72 The withdrawal usually lasts until the student can get a letter from psychologist or a psychiatrist assuring the school that the student is no longera suicide risk.73 The controversy of this policy arises from how the colleges define their suicidal students.74 In many cases, schools take premature actions to weed out students who are still capable of remaining and studying with thehelp of counseling and psychotherapy drugs.75 Students have heavily criticized schools‟behavior in this regard and many of them have brought complaints to the Office of Civil Rights (“OCR”);76 rather than challenging in court because it is less costly and a much faster process than litigation.77 The following two cases are notorious examples of schools‟ premature actions against the students from the OCR complaints: a. Guilford College In 2003, Guilford College required a student to withdraw because they believed she was suicidal.78 The student did have mental disorders, which made her to cut herself.79 The college knew that she was “a cutter” since she had sought assistance from the school‟s counseling service.80 After 65 Id. at 608. 66 Id. at 612. 67 Id. 68 Id. 69 49 Ariz. L. Rev. 989, 998. 70 Id. 71 Barbara A. Lee & Gail E. Abbey, College and University Students with Mental Disabilities: Legal and Policy Issues, 34 J.C. & U.L. 349, 383 (2008). 72 Id. 73 Id. 74 Id. 75 Id. 76 Id. 77 Id. 78 Id. at 384. 79 Id. 80 Id.
  • 7. 6 three separate cutting incidents, she was committed involuntarily to a hospital.81 However, doctors did not believe she was a suicide threat.82 Upon her return to campus, the school required her to withdraw for medical reasons and to immediately (on the same day) leave the campus.83 She tried to appeal the withdrawal decision, but the appeal was not permitted.84 b. Marietta College In 2005, Marietta College dismissed a student after a month into his freshman year, when the school learned of his history of depression and suicide attempts.85 The school made the mandatory withdrawal decision based on the fact that the student did not meet with the school psychologist as often as the psychologist believed he needed (during the four weeks he attended the school).86 In 2006, another student sued Marietta College for its mandatory withdrawal policy; the case settled with an agreement that the school would revise its policies.87 B. Campus Housing Refusal Instead of sanctioning mandatory withdrawals, the schools sometimes bar suicidal students from campus housing.88 The student can still attend classes but is not allowed to live on campus. Although it is a reduced sanction, it further mentally harms the student.89 Many of the OCR complaints illustrate a situation where the student was severely depressed, injured herself, was taken to the emergency room and came back to find a note outside her dorm room asking for the student to immediately leave the campus.90 C. Legal Implications Universities‟ current policies deal with suicidal students as if those students have theplague typically as soon as a school finds even the slightest sign of a self-harming tendency in a student, the school gets rid of him. Universities‟ prematurely responding to student mental health concerns by making the student withdraw can trigger violations under the Americans with Disabilities Act (“ADA”).Because ADA prohibits discrimination against mentally and/or physically disabled people.91 Those who are suicidal clearly fall under the heading of mentally disabled.92 Most of the recent complaints and lawsuits brought on behalf of the decedents contend that the decedents were discriminated against by the schools because of the decedents‟ mental disabilities; moreover findings of discrimination can help prove the school‟s breach of school‟s duty and their liability for the decedents‟ deaths. Ironically the universities‟ responses, which were made to avoid liabilities,caused more blame for student deaths to be heaped upon the institutions and exposed their accountabilities. IV. ADA and Universities Policies A. Brief ADA Overview a. General 81 Id. 82 Id. 83 Id. 84 Id. 85 Id. 86 Id. 87 Id. 88 Id. at 387. 89 Id. 90 Id. 91 42 U.S.C.A. § 12132 92 Cohen, Keeping Students Alive: Mandating on-Campus Counseling Saves Suicidal College Students' Lives and Limits Liability, 75 Fordham L. Rev. 3081, 3107 (2007).
  • 8. 7 The ADA is divided into three parts, Title I, Title II and Title III. Title I applies to employers with 15 or more employees that engage in an industry affecting interstate commerce.93 Title II applies to public entities.94 Title III applies to places of public accommodation.95 For higher education institutions, which are either state entities or places of public accommodation, fall under Title II and Title III.96 Under Title II and III, universities may not discriminate against students because of their disability.97 Discrimination includes a school‟s failure to provide reasonable accommodation to the disabled students.98 However, a disabled student must be qualified under the ADA to achieve its protection.99 Therefore, a plaintiff (of awrongful death suit for a student‟s suicide due to ADA discrimination) must show (1) the student (decedent) was qualified under ADA, (2) the student was discriminated against, and (3) the student was discriminated against because of his/her disability.100 This paper will focus on (1) and (2) because (3) is hardly ever an issue once the plaintiff can prove (1) and (2). Once the plaintiff proves (1),(2) and (3), the defendant can refute theplaintiff‟s allegations and/or utilize the “direct threat” defense. If the defendant can properly contend a“direct threat”, the plaintiff no longer has a claim. b. Qualified Individual A person must meet three criterions to be aqualified individual under the ADA: (1) mental disability that (2) substantially limits (3) major life activities. Following subsections define each category.101 1. Mental Disability To be covered by the ADA a student must have a mental disability under the ADA standard. The ADA defines mental impairment as: “[a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness.”102 The Compliance Handbook gives as examples of mental illnesses: bipolar disorder, major depression, anxiety disorders such as panic disorder, obsessive-compulsive disorder, and post-traumatic stress disorder, schizophrenia and personality disorders.103 Mental Impairment does not include common personality traits such as poor judgment, irritability or irresponsible behavior.104 The ADA also excludes homosexuality and illegal drug use.105 Courts utilize the Diagnostic and Statistical Manual of Mental Disorders(“DSM- IV”) as persuasive authority to identify whether a person has a mental disability under the 93 42 U.S.C.A. § 12111 94 42 U.S.C.A. § 12131 95 42 U.S.C.A. § 12181 96 Wilhelm, Accommodating Mental Disabilities in Higher Education: A Practical Guide to ADA Requirements, 32 J.L. & Educ. 217, 221 (2003). 97 42 U.S.C. § 12132; 42 U.S.C. § 12182 98 42 U.S.C. § 12131(2); 42 U.S.C. § 12182 (b)(2)(A)(ii). 99 Shapiro, Defining the Rights of Law Students with Mental Disabilities, 58 U. Miami L. Rev. 923, 926 (2004). 100 49 Ariz. L. Rev. 989, 1006. 101 Id. 102 32 J.L. & Educ. 217, 222 103 Id. 104 Id. 105 Id.
  • 9. 8 ADA.106 However, the United States Supreme Court stated that an impairment need not appear in the DSM-IV to be considered a disability under the ADA.107 2. Major Life Activities To be qualified under the ADA, the student must have not only the ADA standard mental disability but also the disability should substantially limit his/her major life activities.108 Major life activities are listed in the definitions as: “caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.”109 The courts have the list of major life activities to include sleeping, engaging in sexual relations and interacting with others; eating, drinking and learning; thinking; and reading.110 3. Substantial Limitation Substantial limitation is also another criteria to meet if a plaintiff wants to bring a suit under the ADA. Regulations defines “substantially limits” as: (i) unable to perform a major life activity that the average person in the general population can perform; or (ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity.111 For instance, if a student with depression had been able to read material more effectively than the average person before his/her depression; but now he can read the material only as effectively as the average person, he is not consistently substantially limited in his major life activities.112 c. Discrimination In the context of universities‟ discrimination against suicidal students, the term discrimination does not comport with a layman‟s understanding. Here, discrimination involves the universities‟ failure to reasonably accommodate the suicidal students. For instance in Smith v. University of the States of New York, Smith was admitted to school with the school‟s knowledge of his clinical depression.113 His professor also knew about his condition but when he asked for accommodations, the school refused.114 His depression led him to miss many classes and achieve failing grades.115 The school required that Smith withdraw.116 The court held that the school discriminated againstthe student and might be liable under the ADA.117 B. Direct Threat Defense a. General: Even if a student has an ADA defined mental disability substantially limiting his major life activity, the school may not be liable under theADA if it can validly contend thedirect threat 106 Id. at 223. 107 Id. 108 Id. 109 28 C.F.R. § 35.104(1)(iii)(2) (1991). 110 32 J.L. & Educ. 217, 226. 111 29 C.F.R. § 1630.2(j)(1). 112 32 J.L. & Educ. 217, 227 113 49 Ariz. L. Rev. 989, 1009 114 Id. 115 Id. 116 Id. 117 Id.
  • 10. 9 defense.118 The following case laws and OCR decisions reflect the common use of the “direct threat” defense. b. Case Law – Ascani v. Hofstra University Ascani appealed to New York District Court in 1999 contending that Hofstra University expelled her from school because of her mental disability.119 Although Ascani proved her mental disability was genuine, the court decided against her because the school properly utilized the direct threat defense.120 The school proved to the court that Ascani had threatened and harassed her professors and had pled guilty to the harassment and trespass charges.121 The court determined her actions were adirect threat to others even if the actions were precipitated by her mental illness; thus Hofstra University did not violate the ADA.122 There are no recorded court cases where an university utilized adirect threat defense for a student that posed only a harm to himself. c. OCR Decisions: In the previously cited Guilford College (the student with cutting issues) and Marietta College (the student with history of multiple suicide attempts) cases, the OCR reviewed whether the students posed a direct threat to others and oneself.123 Their case analysis implied if the students were truly a direct threat tohimself, the school could issue a mandatory withdrawal to himwithout violating the ADA.124 In both cases, the schools requested mandatory withdrawals prematurely (without consultations with the psychologists or without listening to the student‟s side of the story) which led the OCR to decide against the schools; the OCR believed the schools did not have enough evidence toprove that the student was danger to himself/herself.125 However according to the OCR, as long as a school individualizes and creates an objective assessment to evaluate whether the student is adirect threat to himself, the school can successfully argue adirect threat defense. 126 C. Direct Threat Defense Misunderstood by the OCR Because many students and their legal representatives seek their remedies from the OCR rather than from the court, the OCR‟s decisions affect future policies of the universities and colleges. The OCR‟s misinterpretation of the law could not only jeopardize a school‟s legal outcome in a court but also could lead tocreating policies that harm more students. The OCR‟s interpretation of ADA‟s “Direct Threat” is erroneous (it should not include “threat to oneself”), and the OCR should rectify its error to prevent wrongful influence on policies written in institutions of higher education. a. Statutory Language of Title I, II, and III For higher educations, Title II and Title III are the relevant sections of ADA. I will begin with Title III analysis. Actual statutory language of Title III defines “direct threat” as: “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies.”127 The statute does not directly state or indirectly imply“threat to self.”128 Title I also contains a direct threat 118 34 J.C. & U.L. 349, 362. 119 Ascani v. Hofstra Univ., 173 F.3d 843, 843 (2d Cir.1999). 120 Id. 121 Id. 122 Id. 123 34 J.C. & U.L. 349, 383 (2008). 124 Id. 125 Id. 126 Id. 127 42 U.S.C.A. § 12182(b)(3) 128 Id.
  • 11. 10 defense and is defined as threat to others.129 Title II does not contain a “direct threat” defense in the statutes at all, it is only mentioned in the regulations (further discussed in part 3).130 Therefore, nowhere in the statutory language of ADA can one find direct threat to self as thedefinition of “direct threat”. b. Title I & Title III Regulations Although Title I‟s statutory language does not include direct threat to self, its regulation covers such threat in the“Direct Threat” definition. The regulation is written and enacted by the Equal Employment Opportunity Commission (EEOC) pursuant to congressional authority within the ADA.131 The EEOC written regulation, 29 C.F.R. § 1630.15(b)(2) states: Direct threat as a qualification standard. The term “qualification standard” may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace. In comparison, EEOC‟s Title III regulation, 28 C.F.R. § 36.104 states: “Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies”132 If the EEOC wanted the regulation to include “threat to self” in the definition (for Title III), it would have written Title III‟s definition identical to Title I. However instead the EEOC clearly distinguished the two definitions. Based on both languages of the statutes and the regulations, it is clear that Title III institutions (non government higher education institutions) cannot raise the“direct threat” defense if the student is only a threat to himself. c. New Title II Regulations Effective March 15, 2011 Congress implemented new Title II regulation (did not amend the statute), which contains the “Direct Threat” defense; prior to the new regulation, Title II did not permit a “direct threat” defense for government entities.133 The new regulation allows it by stating: This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.134 Once again, regulation does not contain the language of “threat to self”. Congress‟ commentary accompanying this regulation amendment clearly states that the amendment is intended to parallel Title III definition of “Direct Threat”.135 Congress must have put in parallel explanation to distinguish Title II‟s “direct threat” from Title I‟s regulation. The 2011 Title II regulation amendment reaffirms the understanding that the schools will violate the ADA if the schools take actions against mentally disabled students who are adirect threat onlyto themselves. V. Model Policy – Escalation of Help Program A. New Approach Needed Because “direct threat to student self” is not a proper defense to avoid legal liabilities, universities need to find anew approach. The new approach should fulfill theADA‟s requirement by 129 42 U.S.C.A. § 12111 (3) 130 42 U.S.C. §§12131–12165. 131 JAMIE L. IRELAND & RICHARD BALES, Title II of the Americans with Disabilities Act of 1990 and Its Prohibition of Employment Discrimination, 28 N. Ill. U. L. Rev. 183, 189 (2008). 132 28 C.F.R. § 36.104 133 Revised ADA Regulations Implementing Title II and Title III, Department of Justice, http://www.ada.gov/regs2010/ADAregs2010.htm, (last visited, Apr. 2013). 134 28 C.F.R. § 35.139 135 Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed.Reg. 56206 (September 15, 2010).
  • 12. 11 reasonably accommodating the suicidal students until 1) they become athreat to others or 2) more accommodations would lead to substantial burden to the universities. The ADA allows universities to discriminate if the student poses danger to others or further accommodations impose undue burden on the school.136 I propose for the universities to use an“Escalation of HelpProgram.” B. Escalation of Help Program (“EHP”) The EHP uses different tools to help the students in multiple stages by implementing more aggressive tools as each stage progresses. By exhausting all the tools and spending more time (with various stages) analyzing the student, the school will get a chance to individually evaluate and assess the student‟s situation. The EHP has four steps: 1) Mandatory counseling, 2) Mandatory meeting with parents or guardians, 3) Option for parents, guardians or any family member to come live with the student on campus, and 4) Mandatory withdrawal with theoption to come back thefollowing semester. The EHP must be agreed upon with the student in the admission contract form before the student begins attendingthe school. a. Mandatory Counseling The first step happens when the school initially finds out that the student has suicidal tendencies. The student must first be seen by a mental health professional if he has not done so already, and if the student is not in an emergency crisis, the student must follow step 1 protocols; however if the student needs more than regular counseling sessions, the school can skip step one and proceed to step two. The student must attend all required counseling sessions unless the student has acceptable excuses. If the student misses more than three counseling sessions, the school administrator must meet with the student to resolve the issue. If the student still fails to attend counseling session regularly, the school must meet with the student again and notify the student that the parents or guardians will be informed of the situation; the school must wait at least half a semester before making this decision. If at this point, the student refuses to inform the parents, the school can require the student to provide bona fide reasons and contact information of another family member (over the age of 25) or a mentor (over the age of 25) to reach as analternate contact; the alternate contact will be informed of thestudent‟s mental health and proceed to step two with the student. The student must also sign a document verifying that he refused to contact parents or guardians. b. Mandatory Guardian Meeting If the student doesnot cooperate well instep one or if the student‟s mental health professional informs the school that thestudent is not benefiting from step one, the school can proceed to step two. In step two, the school administrators, the student, the parents or guardians (or alternate contact), and the student‟s mental health professional will have a meeting. The meeting will discuss the student‟s situation and the participants will create solutions that best all parties. All parties will sign the document as an agreement that each party validates the solution and will execute it to the best of his/her ability. c. Option to Live with Parents or Guardian If the solution from step two doesnot help the student or the student still needs help to be out of danger of committing suicide, the school may proceed with step three. In step three, the school gives the option for the parents or guardians or other family members to come on campus and live with the student. The student would have to move to graduate housing where the housing accommodations are more fit for a family. The purpose is to help the student recuperate and rehabilitate with the support of the family. If no family member can come to stay with the student, the school may proceed to step four. d. Mandatory Withdrawal with Option to Return 136 163 A.L.R. Fed. 339 - 2(b) summary & comment; 28 C.F.R. § 35.130 (b)(7).
  • 13. 12 In this step, the student will be forced to withdraw from school withtheoption to return the following semester. However the student must obtain an official letter from amental health professional allowing the student to return to the school and attesting that the student is capable of continuing his studies. The school must provide a due process proceeding in which the student can appeal and contest the mandatory withdrawal decision before the decision can be finalized. The EHP benefits the universities in three ways: 1) It shows agood faith effort of the school to help the student – by constantly meeting with the students in a long term program and including parents and mental health professionals to discuss the student‟s well being, EHP shows that the school cares about its students not just about avoiding future lawsuits; 2) It complies with the ADA – four steps contain almost all possible reasonable accommodations by the school, thus anymore accommodation may be considered an undue burden to the school; 3) Legal liability will be greatly reduced – potential plaintiffs, parents and guardians, all participate with the EHP; thus they are less likely to complain in court about lack of notification or toargue negligence (what the school should have done). VI. Conclusion In addition touniversities‟ legal duties, they have an ethical duty to find anew approach when dealing with mentally ill students, especially those who are suicidal. The current approach of treating amentally ill student as a plaguevictim is causing students to avoid seeking help when they really need it.137 The students are afraid of meeting mental health counselors because they think if the school finds out about their mental difficulties, they might get into trouble.138 Institutions of higher learning should set examples by helping those in need not shunning the sick. James Seevakumaran might have sought help if he had thought the school would have aid him with his mental illness; and if he had received the help he needed, he might nothaveplotted mass murder and then killed himself. Universities‟ customary treatment of mentally ill students as evidenced in Seevakumaran‟s case was the “but for cause” of hisdemise. By strictly adhering to the EHP universities can not only meet theirlegal obligations but also fulfill their ethical responsibilities to their students. 137 Allie Grasgreen, Students Rate Mental Health Services, http://www.insidehighered.com/news/2012/10/30/colleges-dont-always-help-mental-health- issues-student-survey-shows, (last visited Apr. 2012). 138 Id.