Responsibility for Suicide or Violence on Campus

At the time of his death, Han Duy Nguyen was a 25-year-old graduate student in marketing at the Sloan School of Management of the Massachusetts Institute of Technology (MIT) (1). Prior to enrollment at MIT in fall 2006, Nguyen had been treated for depression and apparently made two suicide attempts of uncertain seriousness. During his 3 years in Cambridge, he sought treatment from nine mental health professionals unaffiliated with the university. None noted active suicidality. However, most of the people at MIT who interacted with him were unaware of this history, and his only requests for assistance from the school were for difficulties dealing with examinations, characterized as test anxiety. Indeed, he declined several attempts to get him to engage with the student mental health service.

Although Nguyen needed special accommodations to get through his general examinations during his second year as a doctoral candidate, his third year, during which he had a teaching assistantship, seemed to go better. He was recommended for a summer research job at MIT and made contact with the project investigator in late May 2009. Whatever happened in that exchange, Nguyen apparently felt that he had not been treated with appropriate respect. He wrote a somewhat intemperate e-mail to the investigator, objecting to an interaction that he found “disturbing, as well as a little insulting.” The e-mail was called to the attention of a professor acting as Nguyen’s advisor, who reached out to him by phone on June 2, 2009, and “read him the riot act.” A few minutes later, Nguyen went to the roof of his laboratory building and jumped to his death.

A continent away, but just a day after Nguyen died, campus police were called to a dormitory at the University of California, Los Angeles (UCLA), after Damon Thompson confronted and pushed another student whom he accused of making too much noise (2). The incident was only the latest problem to arise since Thompson had transferred to UCLA in fall 2008. He had complained on multiple occasions of students and professors making derogatory comments about him, spreading rumors, and eavesdropping on his phone calls. By February 2009, Thompson was hearing voices coming through the walls calling him an idiot, and he called the campus police to report hearing the click of a gun in a nearby room, saying that he believed other students were planning to shoot him. That episode led to an emergency psychiatric evaluation and a number of follow-up sessions with a campus psychologist. However, Thompson never consistently took the medications that were recommended for him, and by April he had left treatment.

Although he was expelled from the dormitory after the pushing incident, Thompson remained enrolled at the university, with the understanding that he would reconnect with the counseling service in fall 2009. As the new semester started, he was again complaining of other students criticizing him and making racist comments, especially in chemistry lab. In a flurry of e-mails, his chemistry professor, administrators, and mental health staff expressed their concern and tried to convene a meeting of the university’s Response Team, which consults on the management of students having problems. Before that could occur, on October 8, 2009, Thompson, in chemistry lab “suddenly, without warning or provocation . . . stabbed fellow student Katherine Rosen in the chest and neck with a kitchen knife.” Thompson previously had identified Rosen as one of the students who he believed had been harassing him. Rosen was critically wounded but ultimately survived the attack.

Colleges and universities have seen an evolution of the law governing their responsibility for harm that occurs to their students. Peter Lake, one of the leading scholars in this area, has characterized four phases in this evolution (3). Until the early to mid-1960s, universities were largely immune to liability claims because of a variety of tort doctrines, including charitable immunity and, most importantly, the doctrine of in loco parentis. By acting in place of students’ parents, colleges and universities acquired the same discretion and immunity that parents have in making decisions regarding their children. The second phase—marked by the decline of the doctrine of in loco parentis—continued into the mid-1970s. Universities lost some of their insularity from legal regulation as civil rights doctrines were applied to their interactions with students, but without a direct increase in their liability for student harm.

Phase 3 saw a major reconceptualization of universities’ responsibility for their students. Beginning in the mid-1980s, universities were viewed as businesses, which might thus have some obligations toward the students who were their customers, e.g., maintaining safe premises. But with regard to student conduct, such as alcohol use, they were seen as mere observers or bystanders, like other businesses, that had no responsibility to intervene. The fourth, current phase normalizes universities’ liability, in the sense of holding them to duties that could apply to other entities as well. Because duties to protect third parties typically turn on the existence of a legally recognized “special relationship”—a term familiar to most mental health professionals from the Tarasoff case (4)—resolution of cases involving student suicide or injury now usually depends on whether courts find that, in the circumstances of the case, a special relationship existed between the school and the student.

The influential Restatement of the Law Third: Torts (sec. 40) identifies those relationships in which “a duty of reasonable care with regard to risks that arise within the scope of the relationship” should apply (5). They include “a school with its students,” although the commentary to the Restatement notes that “because of the wide range of students to which it is applicable, what constitutes reasonable care is contextual—the extent and type of supervision required of young elementary-school pupils is substantially different from reasonable care for college students.” Hence, when claims are brought against a university for failure to protect a student, both the existence of a duty and the scope of the duty will be determined as a matter of law by the court.

In the wake of Han Duy Nguyen’s suicide, his father brought suit in a Massachusetts court against MIT and several of its employees for negligence in failing to prevent his death. When the case was dismissed by a lower court, on the grounds that MIT had no duty to Nguyen to prevent him from ending his life, a direct appeal was taken to the state’s Supreme Judicial Court (SJC). In its opinion, the state’s highest court noted the complex set of relationships that exists between students and universities. Although the schools’ primary obligations are academic, they also organize activities for their students, act as landlords by providing housing for students, promote students’ physical and spiritual needs, and generally offer a community within which students learn and reside. Nonetheless, the court recognized that students function in their personal lives as adults (graduate students in fact are legal adults), making their own decisions, including about whether to seek mental health care.

Weighing these conflicting considerations, the SJC concluded that a duty to take reasonable care to protect a student from self-harm exists “where a university has actual knowledge of a student's suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student's stated plans or intentions to commit suicide.” The court took pains to emphasize the limited circumstances in which the duty would exist. “It is definitely not a generalized duty to prevent suicide. Nonclinicians are also not expected to discern suicidal tendencies where the student has not stated his or her plans or intentions to commit suicide. Even a student's generalized statements about suicidal thoughts or ideation are not enough, given their prevalence in the university community.” Only when the suicide was foreseeable—i.e., there had been a recent attempt or threat of suicide with stated plans or intent to act—would the requisite conditions for a duty be met. However, because these conditions did not exist in Nguyen’s case, MIT could not be held responsible for his death (1).

Katherine Rosen’s suit against UCLA for failure to protect her from assault by Damon Thompson had a similar course, albeit a somewhat different outcome. The trial court rejected UCLA’s efforts to have the case dismissed on the grounds that it had no duty to protect her, but an appellate court granted the university’s motion to dismiss the case. On appeal to the California Supreme Court, the justices again looked to the Restatement’s special relationship analysis. They concluded that students “are dependent on their college communities to provide structure, guidance, and a safe learning environment . . . [and] [c]olleges, in turn, have superior control over the environment and the ability to protect students.” Given that this fits the model for a special relationship, the court held that colleges have a duty to protect students “while they are engaged in activities that are part of the school’s curriculum or closely related to its delivery of educational services,” when it is foreseeable that harm may occur. The assault on Rosen took place in a laboratory class, thus coming within the scope of this rule. Her case was remanded for further proceedings consistent with the court’s opinion, including a determination of whether Thompson’s violence was foreseeable and whether the university responded appropriately, and the case will now presumably move toward trial, unless a settlement is reached first (2).

It is noteworthy that two state supreme courts, facing very different fact situations and located at opposite ends of the country, arrived at roughly similar analyses of when universities could be held liable for failing to protect students from themselves or others. Taken together, the opinions suggest that institutions of higher education will need to be more attentive to students who are potentially suicidal or aggressive and to be more assertive about intervening before harm occurs. What is the likely impact of such a trend?

The track record of colleges and universities in situations in which liability may be imposed is not encouraging. Students who report suicidal ideation have been forced to take leaves of absence, not allowed to live in dormitories, and in some cases not even allowed to enter campus (6). Needless to say, such approaches are counterproductive, leaving students isolated from social networks and educational settings that may be important sources of support. Regarding students with the potential for violence, in the wake of horrific acts on campuses, most notably the massacre at Virginia Tech in 2008, administrators are already sensitive to such students. Heightening the risk of liability will increase pressure on them to act quickly—perhaps based on inadequate evidence—to remove such people from the campus.

Efforts to anticipate rare acts such as suicide and homicide inevitably result in overprediction, meaning that many of the targets of preventive actions will be misidentified. Knowing that colleges are highly incentivized to minimize risk so as to avoid liability, students who most need the help that campus mental health services can provide may be particularly unlikely to seek it, or if they do, to be open about their situations. Indeed, a coalition of groups interested in campus mental health suggested in an amicus brief in the California litigation that colleges may even dissolve their counseling services to reduce the likelihood of learning about students’ suicidal or homicidal ideation (7).

Notwithstanding the sympathy we feel for victims and survivors of campus suicide and violence, placing the responsibility on educational institutions to protect students from their own destructive impulses or from aggression by other students asks universities to undertake tasks for which they are ill suited. Unfortunately, such rules are more likely to have negative consequences than positive ones.