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   Anne Lundquist and Allan Shackelford

   New York State Disability Services Council
   Spring Meeting
   June 16, 2009
About the Presenters
 Anne Lundquist is the Dean of Students at
 Wells College in Aurora, NY, the fourth private
 liberal arts college where she has served as dean.
 She has written and presented on a wide range of
 higher education topics, including presentations
 at the First Year Experience Conference, NASPA,
 the National University Security Workshop and
 the NASPA/Stetson Student Affairs Law and
 Policy Conference. In her teaching career, she was
 an associate professor of English and also taught
 Women‘s Studies.

                    Lundquist & Shackelford
About the Presenters

 In 2002, when Anne became the Dean for
 Campus Life at Guilford College, she
 negotiated the involuntary withdrawal
 process for students with psychological
 disabilities that was approved by the OCR
 and established the standard for
 conducting ―individualized‖ threat

                 Lundquist & Shackelford
About the Presenters
 As an attorney, counselor and/or consultant, Allan
 Shackelford has advised institutions of higher
 education for almost thirty years on various issues,
 including student affairs, tenure, disability
 accommodations, governance, accreditation and
 risk management. He has presented at the annual
 meetings of the American Council on Education,
 NASPA and the National University Security
 Workshop. Allan began writing about higher
 education issues over twenty-five years ago and
 authors a regular column, ―Of Counsel,‖ for Campus
 Legal Advisor and a quarterly column for Disability
 Compliance for Higher Education.

                     Lundquist & Shackelford
About the Presenters
 Following the Virginia Tech tragedy, the National
 Association of College and University Attorneys
 assembled and published a comprehensive compendium
 outlining current thinking about relevant legal issues
 and trends and detailing best practices for identifying,
 anticipating and responding to risk management issues
 in higher education. An article that Allan had written,
 ―Conduct a Risk-Management Assessment Before
 Tragedy Strikes Your Campus,‖ was one of twenty-five
 law review or journal articles selected for inclusion in
 this publication. (Student Risk Management in Higher
 Education: A Legal Compendium, 2007, NACUA)

                      Lundquist & Shackelford
About the Presenters
 Anne and Allan are the co-authors of The Student
 Affairs Handbook: Translating Legal Principles
 into Effective Policies (March 2007, LRP
 Publications). In this book, the authors address
 current risk management and liability issues
 involving students in higher education. The book
 focuses less on theory and more on the realities of
 student affairs administration. It also emphasizes
 the crucial need for a deliberative, strategic,
 collaborative and systemic organizational
 management approach for institutions of higher

                     Lundquist & Shackelford
Your Expectations for the Day?
Learning Objectives
Participants will:
• Gain a better understanding of disabilities issues
  within the context of institutional risk
• Learn new strategies for responding to students
  with psychological and mental health issues and
• Learn techniques for effective policy development

• Gain insights regarding institutional crisis
• Share strategies for ―educating‖ and working
  effectively with faculty members
                     Lundquist & Shackelford
Legal Liability: Historical Overview

             Lundquist & Shackelford
Higher Education is a Unique Industry

 Colleges and universities have been
  described as ―ivory towers
  surrounded by reality.‖
 Historically, higher education has
  largely been viewed as a self-created,
  self-perpetuating, insular, isolated
  and self-regulating world.

                Lundquist & Shackelford
Higher Education Was a Protected
 Traditionally, colleges faced few legal
  requirements and the world of higher
  education remained above the fray of
  the law and lawyers.
 Courts and legislatures deferred to the
  decisions of academia.
 Anthony v. Syracuse (1928) upheld the
  University‘s dismissal of a student
  because she was not a ―typical Syracuse
                 Lundquist & Shackelford
It Is an Industry That Has Been in
Transition for Many Years

    With the rise in student numbers and the
     increased diversity of students attending
     institutions of higher education after World War
     II, the legal landscape began to shift and the
     outside world started to intrude onto campuses.
    The 1960s brought great societal changes and
     saw the federal government begin to enact
     specific legislation affecting colleges and

                       Lundquist & Shackelford
That Transition Has Brought More Legal
and Business Challenges

     The proliferation of federal statutes and
      implementing regulations, coupled with the rise
      of aggressive consumerism toward the end of
      the 1990s, has led to an increased risk of private
      legal claims against institutions of higher
      education -- and their administrators -- by
      individuals or groups of students.
     Higher education is now treated like any
      other business by judges, juries and
      creative plaintiffs’ attorneys.
                         Lundquist & Shackelford
Today‘s Legal Landscape

 Administrators, staff and faculty must be
 familiar with the proliferation of legal
 requirements and, beyond that, must translate
 them into best practices on their campuses to
 ensure the welfare, safety and education of
 their students, as well as to protect the
 integrity and reputation of their institutions.

                   Lundquist & Shackelford
Changing Legal Environment Shifts
Institution‘s Relationship With Students

   In Loco Parentis Era: Family based tort
    immunities used to protect institution from
    lawsuits regarding discipline, regulation and
    punishment of students. College and
    universities acted as surrogate parents.
   Civil Rights Era: Students acquired the
    privilege to exercise their constitutional rights
    on campus and seek protection from the
    courts. Institutions were directed to treat
    students as adults.

                       Lundquist & Shackelford
Changing Legal Environment Shifts
Institution‘s Relationship With Students
   Bystander Era: Courts began to approach
    lawsuits involving students and institutions using
    the legal analytical tools of ―duty‖ and ―no duty.‖
    The deciding philosophy in a number of cases was
    the belief that students are responsible for
   Duty Era: Institutions of higher education and
    students have shared responsibility. More lawsuits
    and decisions focus on the philosophy that
    colleges and universities owe a duty to students
    and students owe a duty to themselves.
    Kim Novak, Arizona State University, based on Bickel and Lake, The Rights and Responsibilities of the Modern University: Who Assumes the Risk of
    College Life?

                                                             Lundquist & Shackelford
Recent Incidents and Tragedies in Higher

   Texas A&M
   MIT
   Ferrum
   Eastern Michigan
   Virginia Tech
   Duke

                       Lundquist & Shackelford
Types of Claims

   Tort litigation (negligence, personal injury,
    property damage, premises liability)
   Breach of contract
   Negligent supervision
   Misrepresentation and emotional distress
   Constitutional and contractual due process
   Failure to warn or protect against reasonably
    foreseeable harm
                     Lundquist & Shackelford
Essential Legal Principles

 Duty
 Foreseeable Danger

 Reasonable Care

                Lundquist & Shackelford
Legal Duty

 Action
 Breach (Act or Inaction)

 Proximate cause

 Injury/damage

              Lundquist & Shackelford
Legal Duty

 Courts moving from ―no duty‖ findings to
  assessment of ―reasonableness‖ and
  ―forseeability‖ for colleges and
 Courts are focusing on ―the special
  relationship‖ between an institution and
  its students (thus owing students a duty to

                  Lundquist & Shackelford
―Changes in College Safety Law have
brought changes in accountability.‖

 ―Higher education law is moving, steadily, to
 consolidate around paradigms of reasonableness
 and forseeability--which focus much more on
 conduct, choices and information--and away
 from the concept of colleges‘ special status and
 their disengagement from students to avoid

 Peter Lake. ―Higher Education Called to Account‖. Chronicle. June 29, 2007.

                                              Lundquist & Shackelford

   Colleges must provide reasonably safe
    environments for students by attending to
    forseeable dangers.
   Campus policies must work in tandem with
    regulations regarding the open areas of
   Acting independently, no department is likely
    to solve the problem.
                      Lundquist & Shackelford

   Colleges may have to comply with the law of
    agency which means that the institution is
    assumed to have gathered and synthesized all
    information in a reasonable and efficient way.
   Colleges may become legally responsible if
    they create or enhance a risk or take charge of
    a person or situation.

                      Lundquist & Shackelford
Survey Respondents

   Sent survey via e-mail to 250 members of NYS
    Disability Services Providers listserv
   42 complete survey responses (16%)
   68% public, 31% private
    Institutional Size   % Respondents
    Less than 1000       3.3%
    1000 – 2500          16.4%
    2500 – 5000          41%
    5000 – 10,000        14.8%
    Over 10,000          24.6%
                         Lundquist & Shackelford

Position Title                           Supervisor Title

Director                   52.8%         Dean /VP of Student        29.7%
Assistant/Associate        5.7%          Affairs
Director                                 Academic VP or Dean        21.6%
Coordinator/Manager        32.1%         Associate Dean, Student    16.2%
Counselor                  9.4%          Affairs
                                         Associate Dean, Academic   8.1%
                                         Director of Disability     24.3%
67.2% of respondents supervise others    Services

                               Lundquist & Shackelford
Primary Job Functions

Consult with faculty regarding accommodations                 98%
Arrange services for students with disabilities               95%
Serve as an advocate for students with disabilities           92%
Compile statistics and data                                   90%
Update publications and brochures for disabilities services   90%
Develop/write/review disabilities policies                    88%
Review and evaluate medical documentation                     83%
Purchase equipment for students with disabilities             78%
Teach campus workshops regarding disabilities                 73%
Serve as liaison with vocational rehabilitation agencies      72%
Ensure campus compliance with disabilities requirements       70%

                                 Lundquist & Shackelford

                                              Knowledge Responsibility
ADA Title I                                   34%        9.8%
ADA Title II                                  47.1%      34%
ADA Title III                                 56.8%      50%
Rehabilitation Act of 1973                    52%        72%
FERPA                                         76%        54%
HIPAA                                         27.5%      15.6%
OCR Regulations                               44.9%      56%
EEOC Regulations                              21.5%      13.3%
Department of Justice Regulations             24%        30%
State and Local Laws and Ordinances           33.3%      27.1%

                              Lundquist & Shackelford

*   Disability              Disability                  Compliance with
    Policies                Procedures                  Federal Disability
5   13.7%                   20.0%                       27.5%
4   62.7%                   56.0%                       45.1%
3   19.6%                   20.0%                       17.6%
2   2.0%                    2.0%                        5.9%
1   2.0%                    2.0%                        3.9%

* 1 – lowest, 5 = highest

                                   Lundquist & Shackelford
Most Concerned About

   Psychological/emotional/mental health
    disabilities and possible implications
   Compliance with laws and regulations
   Working with and educating faculty
   Training, budget and adequate staffing

                     Lundquist & Shackelford
What Keeps Respondents Up at Night

   Being sued/OCR investigations
   Indicators for a student who harms self or others
    not being ―recognized‖ by the institution
   Faculty members who ―don‘t get it‖
   Lack of collaboration between various offices to
    serve needs of students with disabilities
   Not being included in institutional decision-
    making processes
   Inadequate/inappropriate policies and procedures

                       Lundquist & Shackelford
Student Veterans

 Only 18.8% of respondents reported
  having programs specifically
  designed to meet the needs of student
  veterans with disabilities.
 This is the one response that

  surprised us the most.

                Lundquist & Shackelford
Risk Can Be...

   Physical : injuries from physical activities,
    accidents, intentional acts, death.
   Reputation: negative publicity for you and/or
    your colleagues, an activity and/or your college or
   Emotional : cause a student receiving your
    services to feel alienated or something negatively
    impacts the psychological well-being of a member
    or members of the campus community.
   Financial: adversely impact the fiscal stability of
    your functional area or the stability and viability
    of the entire institution.
   Facilities: property damage, lack of required
    equipment or materials.
                        Lundquist & Shackelford
Responses to Risk

 Avoid/ignore
 Transfer to a third party

 Reduce/mitigate/control the negative
 Accept some or all of the

               Lundquist & Shackelford
Risk Management

 Risk management is the ―art and
  science of anticipation.‖
 While organizational management
  structures and leadership styles are
  not often perceived as risk
  management issues, ineffectiveness
  in these areas lies at the heart of
  almost every instance in which a
  senior leadership team ―got it wrong.‖
―The President as Chief Risk Manager,‖ Lundquist & Shackelford, pending, 2009.

                                     Lundquist & Shackelford
How We Have Come to Define
―Institutional Risk Management‖
   The deliberative, strategic, systemic, holistic,
   integrated, proactive, ongoing process of identifying ,
   anticipating, categorizing, assessing, and analyzing
   the institution’s exposure to internal and external risk
   factors to determine how best to avoid, transfer,
   mitigate, control, handle and/or respond to such
   exposures and related issues, activities and scenarios
   to safeguard and preserve the institution’s human,
   physical and intellectual assets and its mission,
   strategic objectives and reputation.

―The President as Chief Risk Manager,‖ Lundquist & Shackelford, pending, 2009

                                        Lundquist & Shackelford
Risk Management on Campus

   Must be based on genuine concern for student safety.

   Cannot be executed in isolation from comprehensive planning.

   Based on the principles of student empowerment.

   Acknowledges that some choices carry inherent risk.

   Injury and death can occur despite best planning efforts.

   Some activities are simply too unreasonably dangerous to continue.

―Private Law Continues to Come to Campus: Rights and Responsibilities Revisited.‖ Peter Lake.

                                                       Lundquist & Shackelford
   Risk Management Intersections


                                   Enforcement                          Education

                                                         Lundquist & Shackelford
Adapted from University of Nebraska‘s Campus Community Coalition
Risk Management Is a Disability
Services Issue
   There may be certain risks and potential threats
    inherent in the presence of a particular student on
   The risks can relate to the nature of the student‘s
    disability or may arise as the result of an
    accommodation being requested or considered.
   The risks may be obvious or not.
   It is not only the best interests and legal rights of
    the particular student that must be considered
    and addressed, but also those of other students,
    the campus community and the institution itself.
                        Lundquist & Shackelford
Risk Management Is a Disability
Services Issue
   An accommodation is not required if it or the
    student would pose a ―direct threat‖ or if the
    accommodation would fundamentally alter a
   Consult with others, as appropriate, in the
    fact-finding and decision-making process.

―Employ Risk-Management Perspective When Considering Reasonable Accommodations,‖ Allan Shackelford

                                            Lundquist & Shackelford
   A Case Study
Virginia Tech – April 16, 2007
Violence on Campus Is Not New

   16th century Scotland, students carried guns to school and staged a
    rebellion against school authorities.
   Bath, Michigan (1927), a local farmer opened fire at the school,
    killing nearly 40 students and teachers.
   Columbia University (1952) a disgruntled physics student opens fire
    on faculty and administrators.
   Swarthmore College (1955), a student who has formerly been
    hospitalized for psychotic episodes opened fire on his classmates.
   University of Texas (1966) student kills his wife and mother, then
    climbs the university tower and opens fire, killing 15 people and
    wounding 31 others.
   Stanford (1978) student who felt mistreated by his thesis advisor
    bludgeons the professor to death.

                              Lundquist & Shackelford
Violence on Campus Is Not New

   University of Iowa (1991) honor student, angry over a scholarship
    awarded to another student, shoots and kills the other student, two
    professors and two college administrators.
   Penn State (1996), a female student opens fire on College Avenue,
    killing one other student.
   University of Arkansas (2000) graduate student in comparative
    literature killed his Ph.D. advisor and then killed himself.
   Appalachian School of Law (2002) student kills 2 professors and a
   Fairfield University (2002) former student takes 22 students
    hostage in a classroom building.
   University of Arizona College of Nursing (2002) student kills one
    professor in her office and another in a classroom.

                              Lundquist & Shackelford
The Virginia Tech Tragedy – Facts and
   ―Mass Shootings at Virginia Tech, April 16,
    2007, Report of the Review Panel, August
   ―No Right to Remain Silent, The Tragedy at
    Virginia Tech,‖ Lucinda Roy, former Chair of
    the Department of English.
   Media articles, especially investigative reports
    by reporters of the Richmond Times-Dispatch
    using FOIA requests.

                       Lundquist & Shackelford
Early Warning Signs

   The Report of the Review Panel lists ten
    separate episodes of threatening behavior by
    Seung-Hui Cho that were documented in
    Virginia Tech records prior to April 16, 2007.
   Most occurred during the 2005 fall semester.
   Throughout that semester, Cho‘s English
    professors communicated with Cho, the
    department chair, various administrators and
    university police about Cho‘s writings and

                      Lundquist & Shackelford
Early Warning Signs

   October 2005: Cho was removed from a class
    taught by poet Nikki Giovanni and tutored
    privately by Lucinda Roy, then Chair of the
    English Dept.
   Lucinda Roy gave a ―code word‖ to her
    assistant that she would use to alert her to
    summon the police if Roy believed she was in
    danger of harm.

                     Lundquist & Shackelford
Early Warning Signs

   November 2005: Female student reported
    annoying phone and in-person contact; second
    female student complained of IMs.
   November 30, 2005: Police requested a temporary
    detention order and Cho was evaluated at Cook
    Counseling Center.
   November and December 2005: Cho initiated
    contact with the Cook Counseling Center three
    separate times within 15 days and was ―triaged‖
    (given a preliminary screening) each time.
                      Lundquist & Shackelford
Early Warning Signs?

   Dec. 13, 2005: A screener concluded that Cho was
    ―mentally ill and in need of hospitalization, and
    [presents] an eminent danger to self or others as a
    result of mental illness….‖
   Dec. 14, 2005: Two others concluded that Cho did
    not present an imminent danger to himself.
   Dec. 14, 2005: A judge ordered Cho to obtain
    outpatient treatment.
   No one followed-up to ensure that he received this
                       Lundquist & Shackelford
The Virginia Tech Response

   All records of Cho being seen, evaluated and
    ―triaged‖ at the Cook Counseling Center were
    reportedly ―destroyed inadvertently.‖
   E-mails show that professors in the English
    Department remained concerned about Cho‘s
    behavior during the 2006 spring and fall
   E-mails also show that these concerns were
    expressly brought to the attention of various

                      Lundquist & Shackelford
Among Those With Knowledge of
Various Aspects of the Threat
   Vice President of Student Affairs
   Dean of Students
   An Associate Dean of Students
   Director of the Office of Judicial Affairs
   The VA Tech Police Department
   Residence Hall Director
   Resident Advisors
   The Virginia Tech Care Team
   The Dean of the College of Liberal Arts
   The Associate Dean of the College of Liberal Arts
   The Cook Counseling Center

                         Lundquist & Shackelford
The Law Was Misinterpreted

   In her prepared remarks to the Review Panel, the
    General Counsel of VA Tech indicates that she
    misconstrued FERPA and HIPAA as prohibiting the
    sharing and disclosure of medical and counseling
    records in the face of a known threat.
   Peter Lake pointedly disagreed: ―A lot of the
    information that you are hearing about privacy laws
    keeping people from talking is just dead wrong. Both
    HIPAA and FERPA have very broad exceptions for
    health and safety … privacy ends where safety begins.‖

    ―Florida Panel Says Privacy Laws Do Not Protect Dangerous Students,‖ Martin Van Der Werf and ―Higher Education Called
    to Account, Colleges and the Law After Virginia Tech,‖ Peter Lake, 2007.

                                                 Lundquist & Shackelford
A Devastatingly Perfect Storm

   Virginia Tech followed the historic ―silos of power
    and silence‖ management model. Clearly, ―the
    right hand did not know what the left hand was
   On the morning of April 16, 2007, issues that had
    been repeatedly misinterpreted and mishandled
    relating to regulatory, informational security and
    operational risk came together.
   32 innocent victims died and others received life-
    long, debilitating injuries.
                        Lundquist & Shackelford
The Legal Aftermath

   Because of the ―sovereign immunity‖ hurdle, in
    June 2008, 28 families of those killed and 18
    injured survivors settled claims against the
    Commonwealth of VA for just over $11 Million.
   Subsequent to the settlement, numerous
    substantive factual discrepancies have been
    discovered between the report of the Review
    Panel and documents later produced by VA

                     Lundquist & Shackelford
The Legal Aftermath

   On April 16, 2009, the families of two students
    who were killed (and who had not entered into the
    settlement agreement) filed lawsuits against the
    State of Virginia, VA Tech and individual
    administrators and counselors. In the 64 page
    complaints, they assert claims based on an alleged
    failure to maintain a safe campus, negligence,
    gross negligence and deliberate indifference. Each
    seeks $ 10 Million in damages.
   One family has pledged to donate any money
    received to a scholarship fund they established in
    honor of their daughter in 2007.

                       Lundquist & Shackelford
Students with Psychiatric Disabilities
Legal Duty and Ethical Responsibility

 Many of us ask if Virginia Tech will be
  liable for the deaths on their campus.
 Peter Lake (Stetson Law) cautions

  that this isn‘t the right question.

    Peter Lake. ―Higher Education Called to Account‖. Chronicle. June 29, 2007.

                                                      Lundquist & Shackelford
The Question Is...

   ―Will Higher Education in general be called to
    account legally for such events?‖
   The answer is ―yes, and more frequently.‖
   ―While we may not be held liable more
    frequently, we will now have to go to court, the
    legislatures, and Congress and explain why we
    did what we did--or did not do--more
    consistently and probingly than ever before.‖

                      Lundquist & Shackelford
Mental Health on Campus

    Self-harming behaviors, including cutting and
     eating disorders, are on the rise.
    Student suicide is the second leading cause of
     death among college students.
    2005 National Survey of Counseling Directors
       90% had seen an increase of students with
        psychological problems, including clinical depression.
       4 in 10 college students report they feel ―so depressed
        it‘s difficult to function.‖
       1 in 10 had ―seriously considered‖ suicide.

- American College Health Association

                                        Lundquist & Shackelford
Mental Health on Campus

     95% of counseling center directors report that the
      number of students arriving on campus already
      taking psychiatric medication has increased.
     Average number of students hospitalized for
      psychological reasons has increased.
     Of 154 college student suicides, 85% had no
      contact with counseling services on campus.

--Robert Gallagher, University of Pittsburgh, 2006.

                                                      Lundquist & Shackelford
Everyone Knows ―the Law‖

   Section 504 of the Rehabilitation Act of 1973
   The Americans with Disabilities Act
   The ADA Amendments Act of 2008
   A ―disability‖ is a physical or mental impairment
    that substantially limits one or more major life
   Student must make disability known and request
   Must be ―otherwise qualified‖ and able to meet the
    academic and technical standards required.
   Duty to ―reasonably accommodate.‖

                       Lundquist & Shackelford
But, the Devil Is in the Details

   What are the duties and/or responsibilities owed
    to a student who poses a risk of harm to
    her/himself or others?
   Do these duties and/or responsibilities increase
    when there is an announced or perceived threat of
    suicide or threat to others?
   For students who pose a risk of harm to self or
    others, and may have a psychological disability,
    what are the legal hurdles to remove them from
    campus or otherwise control the situation?
                       Lundquist & Shackelford
When There Is a Threat of Suicide, We Are
Concerned for Our Students – and Ourselves

   Recent suicide cases have given rise to
    concerns by administrators about the
    institution's responsibility and role in
    preventing student suicide and self-harm.
   Can an administrator be held personally liable
    for a student‘s suicide?
   Not all students who engage in self-harming or
    threatening behavior have psychological

                     Lundquist & Shackelford
The Issue Is Not Fully Settled, But ...

   The trend appears to be that institutions have
    no legal duty to prevent suicide and no legal
    duty that requires them to notify parents about
    such a threat.
   While a legal duty has not specifically attached
    for student suicide, best practices are
    beginning to emerge incorporating the
    expectation that administrators are to act

                      Lundquist & Shackelford
Mahoney v. Allegheny College (Pa.
Common Pleas Dec. 2005)

 ―We believe that the ‗University‘ has a
 responsibility to adopt prevention programs
 and protocols regarding students[‗] self-
 inflicted injury and suicide that address risk
 management from a humanistic and
 therapeutic as compared to just a liability or
 risk avoiding perspective.‖

                    Lundquist & Shackelford
Legal Caution: Nott v. George
Washington University
   GWU student was suspended, forced to
    withdraw and banned from campus after
    checking himself into a University hospital for
   GWU sent letter to him stating that he had
    violated the student conduct code by engaging
    in ―endangering behavior.‖

                      Lundquist & Shackelford
Legal Caution: Hunter College

   Student sought treatment after suicide attempt.
   Removed from the residence halls.
   School policy: "A student who attempts suicide or
    in any way attempts to harm him or herself will be
    asked to take a leave of absence for at least one
    semester from the residence hall and will be
    evaluated by the school psychologist or his/her
    designated counselor prior to returning to the
    residence hall."
   Settled for $65,000.
                       Lundquist & Shackelford

   Reynold Urias contends he was joking about
    ―following in the footsteps‖ of the Virginia
    Tech gunman.
   Roommate reports the threat to counseling
   Asked to leave campus by administrators.

                      Lundquist & Shackelford
Response vs. Over-reaction

 Colleges are confused by the law and
  face the dilemma of under and over
 Students face the choice of seeking
  help/accommodation for their mental
  illness and jeopardizing their

               Lundquist & Shackelford
Virginia Tech Task Force(s)
   Address school culture and ―codes of silence.‖
   Educate students about sharing information about
    those who pose a danger with those who can help.
   More education on early warning signs and
    intervention for those with mental illness.
   Greater information-sharing both on campus and
    with local authorities.
   Develop protocol for timely, effective and
    coordinated response to students in crisis.
   Increase resources for preventing mental health
    issues rather than just responding to critical
                      Lundquist & Shackelford

   College mental-health professionals have
    duties to warn other people about patients who
    pose a serious risk of violence.
   Privacy ends where safety begins.
   Legislative changes to HIPAA and FERPA

                     Lundquist & Shackelford
Involuntary Withdrawal is Permissible

   Re Bluffton and Re Marietta (OCR)
   Federal law does not prevent an institution
    from addressing the dangers posed by an
    individual who represents a ―direct threat‖,
    even if s/he is a person with a disability, as
    that person my no longer be qualified for a
    particular educational program.

                       Lundquist & Shackelford
Involuntary Withdrawal Protocols for
Risk of Harm
   At their core: a primary desire to protect a
    student from self-harm and the campus from
    the negative effects of self-injurious behavior.
   Gary Pavela warns against establishing ―hair
    trigger‖ removal policies.
   What is legally permissible and what is ―the
    best decision‖ for the student and the
    institution may not always coincide.

                       Lundquist & Shackelford
Responding to Psychological
   Best practices: develop policies and procedures
    based on guidance from the Office for Civil
    Rights (OCR).
   Always do what is ―RIGHT‖ for the student(s)
    involved, other students, their families and the
   Treat each case individually.
   Distinguish ―risk assessment‖ from
                      Lundquist & Shackelford
The OCR‘s Letter to Guilford College
Said Do It Right
   Brief background facts.
   Required the College to reconstruct events and
    related decisions.
   OCR concluded that the College had failed to
    conduct a direct threat analysis appropriately -
    - its assessment had not been ―individualized‖
    as required.

                      Lundquist & Shackelford
OCR Requirements for Guilford

   Review, revise, publish appropriately and
    implement ADA/Section 504 Policy and
    associated procedures.
   Provide faculty and staff training.
   Revise involuntary withdrawal protocols.

                      Lundquist & Shackelford
Individualized Assessment: One Size
Does Not Fit All
   Functional limitations resulting from a
    particular disorder will vary from student to
   Surrounding circumstances of each situation
    will vary.
   Must apply decision-making on a case by case

                     Lundquist & Shackelford
Individualized Assessment: Focus on
Observable Behaviors
    Everyone on campus is an ―observer‖
    Right and obligation to report behaviors
    People think they can ―tell‖ when someone has
     a mental illness
    Legal troubles begin when institutions cross
     the line between ―observation of behavior‖ and
     ―perception of mental illness.‖

Vicki Gotkin, ―From Diagnosis to Treatment: Addressing Legal Issues Related to Mental Illness on Your Campus‖ (2003).

                                                        Lundquist & Shackelford
Individualized Assessment: Credible
Medical Evidence
    Should not be reviewed by the professors, but
     by the person at the institution charged with
     arranging for accommodations.
    Accommodations can be designed without
     disclosing the student‘s disability or diagnosis
     to the professor, however they do need to
     know the student‘s limitations.
    Be specific in your request for medical
     evidence and clear about who should provide

                        Lundquist & Shackelford
Individualized Assessment: Provide
   Nott v. George Washington University
   Make every effort to meet in person or by
    phone with the student prior to making a
   May need to go to them (home, hospital,
    therapist‘s office, etc.)
   Provide a reasonable period of time for
   Utilize ―interim suspension‖ or ―interim leave‖
    procedures when necessary.
                      Lundquist & Shackelford
Individualized Assessment: Direct
Threat Analysis
   Review
     Nature

     Frequency

     duration   of the behavior
   Assess
     Likelihood

     Imminence

     And   nature of harmful conduct in the future

                         Lundquist & Shackelford
You Must Consider Alternatives to
   Do not require the cessation of the behavior as
    a condition for continued enrollment.
   Explore alternatives that mitigate the risk such
    as removal from campus housing, distance
    education, reduced course load and/or
    modifications of college policies.
   Consider interim steps prior to suspension.

                      Lundquist & Shackelford
Establish and Communicate
Conditions for Return
   You may set requirements upon exit that must
    be met prior to your considering the student‘s
   You may be more specific with requirements
    for readmitting students than during their
    initial admission to the college or university.

                      Lundquist & Shackelford
Readmission Agreements

   State terms of exit and readmission
   Indicate that have received medical information as
   Institution desires to assist and support, but has
    certain expectations
   Student must comply
   Can confirm receiving counseling or other medical
   Acknowledges that the agreement is not
    disciplinary action, but failure to abide by it will
    result in such.

                        Lundquist & Shackelford
Readmission Agreements

   Student waives right to appeal
   Student acknowledges that s/he has read,
    understands and agrees to comply
   Define terms
   Standard terms or requirements: participation
    in counseling or treatment, appointments with
    medical professionals, use of alcohol or other
    drugs, urine samples, medical exam, obey all
    laws, notify of change in address, etc.
                      Lundquist & Shackelford
Involuntary Withdrawal Protocols

   Add language to your Student Conduct Code
    about self-harm and threats to others.
   Establish suicide prevention programs. The
    University of Illinois at Urbana-Champaign‘s
    model is a good starting point. It reduces its
    liabilities and helps students.
   Establish Threat Assessment Teams and
    Critical Incident Response Plans.

                      Lundquist & Shackelford
Policies, Procedures and Protocols
Risk Management: Effective Policies
and Decision-Making
   Clear campus policy on information-sharing
   Develop protocol for response to danger to self
    or others
   Include individualized assessment
   Create effective and non-punitive involuntary
    leave policies

                      Lundquist & Shackelford
Develop Technical Standards

   ―Not otherwise qualified‖ = not entitled to
   To determine qualifications, must have
   Hallmark of sound planning (and avoiding claims
    of discrimination) starts with having written
    technical standards.
   Should be developed before they are needed.

    Vicki Gotkin, ―From Diagnosis to Treatment: Addressing Legal Issues Related to Mental Illness on Your Campus.‖ Stetson 24 th Annual Law and Higher
    Education Conference. 2003.

                                                            Lundquist & Shackelford
Technical Standards

   Utilizing a planning group of students, faculty
    and staff ensures buy in.
   Akin to ―essential functions‖ of a job and can
    include skills such as communication, intellect,
    behavioral and social attributes and motor
   Include complying with Code of Conduct as a
    technical standard.

                      Lundquist & Shackelford
Psychological Disabilities and Your
ADA Policy
   Identifying the diagnosis and submitting
    documentation of test results is insufficient.
   Require a qualified medical professional to
    provide a DSM-IV diagnosis and a detailed
    explanation of how this affects the student in
    the academic and co-curricular environment.
   Poor judgment, irresponsible behavior, poor
    impulse control are not disabilities.

                      Lundquist & Shackelford
Psychological Disabilities and Student
   Focus on the observable behaviors.
   As indicated previously, include threats of self-
    harm, self-injury and threats to others as
    violations of your Student Conduct Code.
   Be consistent in your enforcement of your
    policies and procedures.

                       Lundquist & Shackelford
AISP Model: Assessment-Intervention of
Student Problems (Ursula Delworth, 1989)

   Student behaviors that raise campus safety
    concerns are categorized
   ―Disturbed‖ (i.e. muttering while walking
    across campus or poor hygiene)
   ―Disturbing‖ (i.e. muttering includes threats
    to self /others or hygiene presents health
    threat to self or others)

                      Lundquist & Shackelford
  Disturbed/Disturbing Matrix*

                                             Mental Health Concern: ―Disturbed‖

                                                    YES                      NO

                                       YES    Disturbed/Disturbing         Disturbing

Disruptive Behavior:

                                       NO          Disturbed                Neither

                                                 Lundquist & Shackelford
*Dunkle, Silverstein and Warner 2008
          Disturbed/Disturbing Student Observed

                                                                Chief Student
                                                                Affairs Officer:
                                                                Monitor roles and
                                                                of other
                                                                administrators. Be
                                                                involved as

                                      Lundquist & Shackelford
Dunkle, Silverstein and Warner 2008
Involving Parent(s) or Other
Appropriate Family Members
   Parents do not want to learn about serious academic, conduct
    or health related consequences without a previous warning.
   Previous contact with a parent makes a difficult situation
   When appropriate, counsel the student to make contact with
    her or his parents about a potentially serious issue involving
    alcohol, drugs, pending disciplinary sanctions or emotional
   Involve those directly concerned with the situation, such as
    the alcohol, drug or mental health counselor, in a phone
    conversation with the parents so that everyone is on board
    concerning actions taken.
   Appropriate waivers are required.

                            Lundquist & Shackelford
FERPA Has Always Been a Speed
Bump, Not a Stop Sign
   FERPA does not require parental notification,
    but it provides opportunities.
   Institution may release all information if the
    student is under 18 or a tax dependent. There
    may be an exception, however, if the student is
    legally emancipated.

                      Lundquist & Shackelford
FERPA Has Always Been a Speed
Bump, Not a Stop Sign
   FERPA permits release of information
    regarding student over 18 who has signed a
    waiver to release such information.
   Warner Amendment permits release of
    information concerning alcohol or drug
    violations for students under 21 to parents or
    legal guardian.

                      Lundquist & Shackelford
FERPA Has Always Been a Speed
Bump, Not a Stop Sign
   FERPA also permits nonconsensual disclosure
    of student information on a ―need to know‖
    basis when an imminent health or safety
    danger exists.
   FERPA does not provide a private cause of
    action (Gonzaga Univ. v. Doe).

                    Lundquist & Shackelford
Department of Education Final Rule
(January 8, 2009)
   New regulations encourage institutions to
    release information to avoid outbreaks of
   They ―make it crystal clear to schools that they
    have flexibility if there‘s an emergency‖ (LeRoy
    Rooker, former director of the Family Policy
    Compliance Office).

                      Lundquist & Shackelford
Department of Education Final Rule: Health
and Safety Emergency Exceptions

   ―Educational agencies and institutions are
    permitted to disclose personally identifiable
    information from students‘ education records,
    without consent…in connection with a health
    and safety emergency.‖
   ED will not second guess an institution's
    conclusion that a health or safety emergency
   May disclose to ―protect the health and safety
    of the student or other persons‖

                      Lundquist & Shackelford
Department of Education Final Rule: Threat
or Emergency

   Possible terrorist attack, natural disaster,
    campus shooting, outbreak of epidemic, etc.
   ―Articulable and significant threat‖ means that
    institution must be able to state the specific
    nature of the threat when it makes and records
    the disclosure.
   Institutions may contact parents, potential
    victims, previous institutions and law
    enforcement agencies to avoid imminent

                      Lundquist & Shackelford
Department of Education Final Rule:
Recording Requirement

   Institutions must record the ―articulable and
    significant threat.‖
   Must also record the parties to whom the
    information was disclosed.
   This document becomes an ―education
   ED review will focus on ―information available
    at the time of determination‖ and will not
    ―substitute its judgment in evaluating
                      Lundquist & Shackelford
FERPA‘s Final Rule

   Attendance
   Directory information
   Education records
   Permissible disclosure without student consent
   School official definitions
   Redisclosures
   Personally identifiable information
   Enforcement

                      Lundquist & Shackelford
HIPAA Considerations

   Student health centers, business offices,
    student affairs offices who collect medical
    information are bound by HIPAA.
   OCR provides guidance on how to release
    information for public health reasons.
   Provisions in cases of domestic or sexual
   Provisions for release of private information
    in the case of serious threat to health and
                      Lundquist & Shackelford
Responding Effectively to a Threat
and/or Crisis
When You Least Expect It, a ―Student
Crisis‖ Can Explode
   When it happens, you must be prepared to
    respond to:
     The student(s) directly involved
     Other students and campus constituents

     Parents

     The law and lawyers

     The media

                      Lundquist & Shackelford
When a Crisis Explodes, the
Administration Is Tested

   When unanticipated events or crises occur, the
    best intentions regarding how the senior
    administrators and the institution‘s
    professional communicators will react to those
    events and communicate internally and
    externally may evaporate.

                     Lundquist & Shackelford
The Institution May Appear to Lose Its
   A student suicide, a disabilities related
    incident or claim, an alleged hate crime or
    violence on campus can quickly tear down the
    presumed invulnerability of an institution‘s
    insular ivy walls.
   It often seems as if the ability to think, act and
    communicate decisively and appropriately is

                       Lundquist & Shackelford
Systemic Risk Management
Implications of Indecision

 When colleges and universities fail to
 respond immediately with the best
 interests of both its students and the
 institution uppermost in mind, students,
 administrators, faculty and the institution
 itself may be placed at serious risk of
 harm in unforeseen ways.

                 Lundquist & Shackelford
Preventative and Proactive Assessment
and Planning

 Prepare now for the unexpected and
 Anticipate and identify potential

  student related events, crises and/or
 Learn from the experiences of others.

                Lundquist & Shackelford
Preventative and Proactive Assessment
and Planning
   What are the sources of your greatest risks?
   Develop a base of knowledge about the
    potential risks, their implications and possible
   Develop policies, procedures and protocols to
    respond to these issues.
   Educate and train your staff.

                      Lundquist & Shackelford
A Triangulated Approach to Crisis
   First, make decisions that take into
    consideration the best interests of students --
    all students.
   Second, make decisions that take into
    consideration how the institution‘s interests
    may be affected and can be protected.

                      Lundquist & Shackelford
A Triangulated Approach to Crisis
 Third, focus on controlling the
  institution‘s ―message‖ and the media, to
  the extent appropriate and practicable.
 To accomplish these objectives, requires
  foresight, planning, preparation,
  confidence, trust and credibility.

                  Lundquist & Shackelford
How Can You Be Prepared?

   Create effective policies –and follow them.
   Keep good records—good paper helps, bad
    paper hurts.
   Understand your institution‘s process for
    engaging legal counsel.
   Be diligent about confidentiality.
   Understand attorney-client privilege.
   Work to educate others on your campus.

                      Lundquist & Shackelford
Working Effectively with Faculty
From the Survey: ―Issues that Keep
You Up at Night‖
   ―Faculty lack of understanding and lack of
    interest in learning about disabilities.‖
   ―Faculty who don‘t get it.‖
   ―Student with disability conflict with faculty.‖
   ―Individual instructors who try to block
    student‘s accommodations.‖
   ―Instructor ignorance.‖
   ―Faculty attitude.‖

                       Lundquist & Shackelford
From the Survey: ―Issues that Keep
You Up at Night‖
   ―Faculty lack of interest in using techniques
    which are proven to improve outcomes for all
    students and students with disabilities in
    particular (universal design).‖
   ―Faculty issues.‖
   ―An instructor not providing an
    accommodation repeatedly.‖ (Actually, a
    ―worst case scenario‖)

                      Lundquist & Shackelford
From the Survey Wish List

   ―Wish that Faculty was mandated to take a
    ‗disability sensitivity‘ course to help them
    appreciate the challenges facing students with

                      Lundquist & Shackelford
The Legal Requirements

   Rehabilitation Act of 1973
   Americans with Disabilities Act
   State Law (New York ―Human Rights Law‖)
   Local ordinances
   OCR regulations
   DOJ regulations
   Contractual obligations

                    Lundquist & Shackelford
Section 504 of the Rehabilitation
   At the postsecondary level, the recipient of
    federal financial assistance is required to
    provide reasonable accommodations,
    appropriate academic adjustments and
    auxiliary aids and services to a ―qualified
    student with a disability.‖
   A ―qualified student with a disability‖ is one
    who meets the academic and technical
    standards of admission or participation in the
    institution‘s educational program or activity.

                      Lundquist & Shackelford
This Is a Shared Institutional
   Accommodating the needs of qualified
    students with a disability is, of course, a legal
    obligation requiring an interactive process
    involving individual faculty members.
   Accommodations, adjustments, aids or
    services are not required if they would result in
    a fundamental alteration of an academic
    program or activity or impose an undue

                       Lundquist & Shackelford
One Legal Caveat for Your
   The burden is on a student to self-identify and
    initiate the reasonable accommodation process.
   However, last year, the U.S. Court of Appeals for
    the Second Circuit (jurisdiction over NY, Vermont
    and Connecticut) ruled, in a case that arose in an
    employment context under the ADA and NY state
    law, that an employer may have a duty to provide
    reasonable accommodations to an individual with
    a disability if that ―disability is obviously known to
    the employer.‖

                         Lundquist & Shackelford
Brady v. Wal-Mart Stores, Inc., 531
F.3d 127 (2nd Cir., 2008)
   This case is now precedent under the federal law
    applicable to the State of New York.
   A question for your future consideration is
    whether the same outcome might be reached by
    the OCR or a court in New York presented with a
    similar situation involving a student at an
    institution of higher education.
   Also, query whether the refocus of the ADAAA
    might have an impact on how the OCR responds.
   If the question arises, consult with your counsel.
                        Lundquist & Shackelford
One Other Legal Word of Caution
for Your Consideration
   Just what is the impact of the ADAAA on your
    obligation to accommodate students with disabilities?
   The OCR website says, ―The Amendments Act does
    not require ED to amend its Section 504 regulations.
    ED‘s Section 504 regulations as currently written are
    valid … .‖
   ―… OCR is currently evaluating the impact of the
    Amendments Act on OCR‘s enforcement
    responsibilities under Section 504 and Title II of the
    ADA, including whether any changes in regulations,
    guidance, or other publications are appropriate.‖
   Stay tuned for further developments.
                         Lundquist & Shackelford
There Is Also an Ethical Aspect to
this Issue
   Academic freedom includes responsibilities.
   Obligations and responsibilities are often
    outlined in faculty handbooks.
   The AAUP Statement of Professional Ethics
    says, in part, ―Professors demonstrate
    respect for students as individuals and
    adhere to their proper roles as intellectual
    guides and counselors.‖

                     Lundquist & Shackelford
The Underlying Considerations You Face in
Attempting to Work with Faculty

   On which side of the academic fence does your
    office fall?
   All politics is local!
   What do you need to do to get someone to tell
    the faculty that they don‘t know everything
    and that they need to pay attention to you?
   Having a collaborative environment for
    responding to students with disabilities is a
    crucial risk management issue.
                     Lundquist & Shackelford
Specific Steps in the Process of
Working with Faculty
   Develop and implement appropriate policies,
    procedures, protocols and guidelines.
    Obtain buy-in from the academic side of the house.
   Institute an institutional requirement for professors to
    attend workshops in which they are educated on their
    legal obligations and responsibilities.
   Sometimes using scare tactics may be the only way to
    get their attention.
   Teach the teachers to teach!
   One key question is how much information to share
    with faculty about a particular student.

                         Lundquist & Shackelford
What Strategies Have You Found
to Be Particularly Successful?
   1.
   2.
   3.
   4.
   5.
   6.
   7.

             Lundquist & Shackelford
Wrapping Up

   Anne Lundquist and Allan Shackelford
   This presentation was designed to provide accurate and
   authoritative information regarding the subject matter covered.
   However, it does not constitute legal advice. Please consult with
   your institution’s legal counsel regarding the specific facts and
   circumstances associated with any legal matter or case.

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