Academic journal article The Review of Litigation

Wake-Up Call: Striking a Balance between Privacy Rights and Institutional Liability in the Student Suicide Crisis

Academic journal article The Review of Litigation

Wake-Up Call: Striking a Balance between Privacy Rights and Institutional Liability in the Student Suicide Crisis

Article excerpt

I. INTRODUCTION ........................................................................ 896

II. CASE LAW ADDRESSING STUDENT SUICIDES AND SUICIDE ATTEMPTS ............................................................................... 901

A. The New Era of Liability: "Special Relationships " ........ 901

B. Shockwaves: Schieszler and Shin ................................... 904

C. After Schieszler and Shin ................................................ 909

D. What Else Can Colleges Do? "Act Now, Apologize Later" Mandatory Leave Policies ................................... 911

III. KEY ELEMENTS IN LIABILITY: USING WHAT WE KNOW ........ 915

A. Factors Giving Rise to A Duty ........................................ 915

B. Breach of Duty ................................................................ 917

C. Causation ........................................................................ 917

IV. BALANCING INTERESTS: FINDING A SOLUTION FOR STUDENTS AND UNIVERSITIES ................................................ 918

A. TheRoleofthe Courts: Adopt a Standard for Duty ........ 918

B. Adopt the Illinois Plan ..................................................... 919

C. Keep the Current FERPA Emergency Exception ............ 920

V. CONCLUSION ........................................................................... 924

". . . i have no real friends, i have no one up here, everyone voices discontent but no one will rally when it counts, i am sad and angry and alone, alone, alone, alone. . . "'

- Charles Mahoney, sophomore (in his last correspondence before he committed suicide)

I. INTRODUCTION

In the wake of the shooting and suicide at Virginia Tech on April 16, 2007, student suicide became a very palpable issue.2 Suicide is the third leading cause of death among college-age students.3 "Approximately 1,100 young adults kill themselves in the nation's colleges and universities every year."4 A study in May 2001 found that 10.3% of college students had seriously considered suicide in the twelve months preceding with those ages eighteen to twenty-four being more likely than older students to have contemplated suicide.5 The heightened attention to this crisis prompted the former Surgeon General, Dr. David Satcher, to react to this crisis by introducing the first national suicide prevention strategy.6

As students face more independence in a period of transition, problems may manifest in the form of depressive or self-destructive behavior that can lead to suicide. Moreover, with the high number of students diagnosed as mentally fragile, colleges must deal with concerns of how to address the needs of students "who may not have gone to college five years ago [but who] are able to attend today because their illness has been recognized earlier and they are on medication."7 These circumstances raise two questions: (1) what role should colleges and universities play in addressing student suicide? and (2) what liability will and should colleges incur in this role?

The answers to these questions and the role of post-secondary institutions has been evolving over time. In the early 1900s through the 1960s, colleges and universities played a parental role in a student's moral and educational development.8 These institutions assumed an in loco parentis role.9 The era began with the Kentucky Court of Appeals' 1913 decision in Gott v. Berea College}0 In Gott, the court upheld Berea College's policy forbidding students from patronizing certain businesses not affiliated with the college.11 The court stated that "[c]ollege authorities stand in loco parentis concerning the physical and moral welfare and mental training of the pupils, and . . . they may . . . make any rule or regulation for the government or betterment of their pupils that a parent could for the same purpose."12

Notably, despite the important role these institutions played in students' lives, courts refused to hold them liable in tort. …

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