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Legal Lessons on Student Suicides and Assaults: A Short Guide for College and University Presidents, Administrators and Trustees: Part 2

Liability for Harm to Oneself

Given the statistics on the widespread and growing phenomenon of student suicide, college administrators are likely to be more concerned about suicide than they are about student-on-student assault.  According to the American College Health Association (ACHA) the suicide rate among young adults, ages 15-24, has tripled since the 1950s, and suicide is currently the second most common cause of death among college students.  Indeed, the emotional and legal repercussions of student suicide have become front page news (see the New York Times article of Sunday, May 13, 2018, entitled “His College Saw Despair.  His Parents Didn’t. Until It Was Too Late.”)

As a result, the recent decision of the Supreme Court of Massachusetts (Nguyen v. Massachusetts Institute of Technology), while exonerating MIT from liability for the death of an MBA student who killed himself, received national attention by suggesting that there could be certain circumstances under which a college or university would be held legally responsible for the death of a student by suicide.

Stated simply, the Massachusetts Court said that a university or college has a duty to take action to protect any student  when it obtains knowledge that the student either:

1. has attempted to commit suicide while actually attending the institution or shortly before entering the institution; or

2. has explicitly told school personnel about an intention to act on his or her suicidal thoughts.

What must the school do to fulfill that duty?

According to the Massachusetts Court, once the school has knowledge of “known suicide threats or [recent] attempts,” it must invoke its “suicide protocol” if there is one (and after this case, every school that does not have such a protocol is best advised to promulgate one) or, if there is no protocol, the school must contact appropriate emergency personnel to intervene.  The school is also well advised to notify the student’s designated emergency contact. (The Massachusetts Court’s opinion identifies a model suicide prevention protocol created by the JED Foundation which has been, or in all likelihood soon will be, widely implemented by educational institutions.)

Having identified this duty on the part of colleges and universities, the Massachusetts Court went out of its way to make it clear that the duty is limited to the school’s obligation to take reasonable and appropriate preventive measures in situations of known danger; and that even with actual knowledge of the likelihood that a student may commit suicide, the school is not a guarantor that the student will not harm himself.

The Massachusetts Court also made it clear that university administrators who are not medical or psychological professionals should not and will not be held to the same standards as clinicians or trained health workers.

Finally, the Court found that the conduct of MIT and its administrators in the case at issue could not be faulted because the particular behavior of the student who killed himself had not triggered any duty on MIT’s part.  The MIT student’s prior suicide attempt or attempts were several years in the past and therefore not sufficiently recent to justify any action on MIT’s part. Moreover, the student actually had denied any current suicidal ideation and made no current threats of suicide to any MIT administrator; indeed, the student had informed MIT that he was seeking help for his personal problems outside the MIT mental health system, and wanted to limit MIT’s involvement to purely academic problems, such as his test-taking anxiety.  Thus, under the facts of this case, there could not be a duty on the part of MIT.

(As an interesting side note, since the student was employed in a summer research job not required for his degree, he may have been an MIT employee whose claim required exclusive legal treatment under the Massachusetts Workers’ Compensation law.  The Massachusetts court did not decide this issue, but kept it alive for further findings by the lower court.)

Nonetheless, by its extensive discussion of the circumstances under which a college or university would have a duty to take certain actions to attempt to avert or at least lessen the chance of a student’s suicide, the Supreme Court of Massachusetts has raised more questions than it answered.

As just one example, when is the school deemed to have been put on notice that it must act?

Under the Massachusetts decision, if a student tells a senior administrator that he or she is seriously contemplating suicide, the answer is clear:  there is a duty to take prompt action.  But what if a lonely student tells a campus maintenance worker who has befriended him that the student is feeling suicidal?  Is that enough to put the college or university on sufficient notice for the duty to arise? What about telling the student’s resident advisor?  A professor or teaching assistant? Such folks are lay persons when it comes to mental health. They also are not even close to having the same legal responsibilities as senior administrators or officers of the university whose acts may bind the university under traditional theories of agency law.

And that’s only one of the most obvious questions which could arise given the variety of factual possibilities.

The only outcome of the Massachusetts case which can be predicted with certainty is that future courts will hear much more about these issues as plaintiffs’ lawyers, hired by families who are understandably overwhelmed by feelings of grief, anger, shame and confusion about whom to blame for an unspeakable personal and family tragedy, test the limits of the Massachusetts decision, both there and in other jurisdictions.

Practical Lessons for College and University Presidents, Administrators and Trustees.

But while the full legal ramifications of these recent court decisions are both complicated and unclear, the practical “takeaway” for senior leaders in higher education are relatively straightforward:

  1. Every college and university must put in place clear, detailed protocols for dealing with students who are or may be actively suicidal or who, by reason of obvious mental health issues, might pose a danger to other students;
  2. There must be institution-wide training as to when and how these protocols must be invoked;
  3. When a student commits suicide or harms another student, a lawsuit will almost certainly follow.  Accordingly, any student problem or threat, or any evidence of the potential effects of mental illness, should not be colored by wishful thinking about the best possible outcome, but must be viewed as the preface to a foreseeable tragedy, even if such a stark view sometimes leads to institutional “overkill”;
  4. Every college and university needs to have liability insurance, sufficient in amount and specificity of coverage, to address student self-harm and harm to others.

The California Supreme Court explicitly stated, in its decision, that these are insurance issues.

And is it not coincidental that the Massachusetts Supreme Court places its discussion of “moral blameworthiness” on the part of the educational institution right next to a pointed comment on the current high cost of college tuition!  Indeed, as with many other societal issues, the economic preparedness of a college or university must rise to the same high level as the necessary preparedness of emotional and crisis management resources to deal with such horrifying events as student suicide or assault.

As that former Amherst professor Robert Frost once said:  “Provide, provide.”

About the Author

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George Birnbaum

Since 1980, sophisticated business people have relied on George to apply the meticulous preparation, attention to detail, and devotion to his clients he learned from fabled trial lawyer Louis Nizer. A graduate of Harvard College and Harvard Law School, George has over 35 years of distinguished deal-making, litigation, mediation and arbitration experience which he has used to negotiate high-stakes agreements for senior executives and select business clients throughout the United States.