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Title: Effective Risk Management for Students With and Without Disabilities: The Intersection of Risk, ThreatS and CrisEs on College and University Campuses


1
Effective Risk Management for Students With and
Without Disabilities The Intersection of Risk,
ThreatS and CrisEs on College and University
Campuses
  • Anne Lundquist and Allan Shackelford
  • New York State Disability Services Council
  • Spring Meeting
  • June 16, 2009

2
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
    Womens Studies.

3
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 assessments.

4
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.

5
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)

6
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 education.

7
Your Expectations for the Day?
8
Learning Objectives
  • Participants will
  • Gain a better understanding of disabilities
    issues within the context of institutional risk
    management
  • Learn new strategies for responding to students
    with psychological and mental health issues and
    disabilities
  • Learn techniques for effective policy development
  • Gain insights regarding institutional crisis
    management
  • Share strategies for educating and working
    effectively with faculty members

9
Legal Liability Historical Overview
10
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.

11
Higher Education Was a Protected Industry
  • 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
    Universitys dismissal of a student because she
    was not a typical Syracuse girl.

12
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 universities.

13
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.

14
Todays 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.

15
Changing Legal Environment Shifts Institutions
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.

16
Changing Legal Environment Shifts Institutions
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
    themselves.
  • 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?

17
Recent Incidents and Tragedies in Higher Education
  • Texas AM
  • MIT
  • Ferrum
  • Eastern Michigan
  • Virginia Tech
  • Duke

18
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

19
Essential Legal Principles
  • Duty
  • Foreseeable Danger
  • Reasonable Care

20
Legal Duty
  • Action
  • Breach (Act or Inaction)
  • Proximate cause
  • Injury/damage

21
Legal Duty
  • Courts moving from no duty findings to
    assessment of reasonableness and
    forseeability for colleges and universities.
  • Courts are focusing on the special relationship
    between an institution and its students (thus
    owing students a duty to protect).

22
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 risk.
  • Peter Lake. Higher Education Called to
    Account. Chronicle. June 29, 2007.

23
Implications
  • 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 campus.
  • Acting independently, no department is likely to
    solve the problem.

24
Implications
  • 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.

25
NYSDSCPre-conferenceSurvey Results
26
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

27
Respondents
  • Position Title
  • Supervisor Title

67.2 of respondents supervise others
28
Primary Job Functions
29
Compliance
30
Effectiveness
1 lowest, 5 highest
31
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

32
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 dont 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

33
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.

34
RISK
35
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 university.
  • 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.

36
Responses to Risk
  • Avoid/ignore
  • Transfer to a third party
  • Reduce/mitigate/control the negative effects
  • Accept some or all of the consequences

37
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.

38
How We Have Come to DefineInstitutional Risk
Management
  • The deliberative, strategic, systemic, holistic,
    integrated, proactive, ongoing process of
    identifying , anticipating, categorizing,
    assessing, and analyzing the institutions
    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 institutions human,
    physical and intellectual assets and its mission,
    strategic objectives and reputation.
  • The President as Chief Risk Manager, Lundquist
    Shackelford, pending, 2009

39
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.

40
Risk Management Intersections
Adapted from University of Nebraskas Campus
Community Coalition
41
Risk Management Is a Disability Services Issue
  • There may be certain risks and potential threats
    inherent in the presence of a particular student
    on campus.
  • The risks can relate to the nature of the
    students 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.

42
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
    program.
  • Consult with others, as appropriate, in the
    fact-finding and decision-making process.
  • Employ Risk-Management Perspective When
    Considering Reasonable Accommodations, Allan
    Shackelford

43
A Case Study
  • Virginia Tech April 16, 2007

44
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.

45
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 student.
  • 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.

46
The Virginia Tech Tragedy Facts and
Circumstances
  • Mass Shootings at Virginia Tech, April 16, 2007,
    Report of the Review Panel, August 2007.
  • 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.

47
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, Chos English
    professors communicated with Cho, the department
    chair, various administrators and university
    police about Chos writings and behavior.

48
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.

49
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.

50
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 treatment.

51
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 Chos
    behavior during the 2006 spring and fall
    semesters.
  • E-mails also show that these concerns were
    expressly brought to the attention of various
    administrators.

52
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

53
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.

54
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 doing.
  • 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.

55
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 Tech.

56
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.

57
Students with Psychiatric Disabilities
58
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 isnt
    the right question.
  • Peter Lake. Higher Education Called to
    Account. Chronicle. June 29, 2007.

59
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.

60
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
    found
  • 90 had seen an increase of students with
    psychological problems, including clinical
    depression.
  • 4 in 10 college students report they feel so
    depressed its difficult to function.
  • 1 in 10 had seriously considered suicide.
  • - American College Health Association

61
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.

62
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
    activities.
  • Student must make disability known and request
    accommodations.
  • Must be otherwise qualified and able to meet
    the academic and technical standards required.
  • Duty to reasonably accommodate.

63
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?

64
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 students suicide?
  • Not all students who engage in self-harming or
    threatening behavior have psychological
    disabilities.

65
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 reasonably.

66
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.

67
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 depression.
  • GWU sent letter to him stating that he had
    violated the student conduct code by engaging in
    endangering behavior.

68
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.

69
Georgetown
  • Reynold Urias contends he was joking about
    following in the footsteps of the Virginia Tech
    gunman.
  • Roommate reports the threat to counseling
    services.
  • Asked to leave campus by administrators.

70
Response vs. Over-reaction
  • Colleges are confused by the law and face the
    dilemma of under and over response.
  • Students face the choice of seeking
    help/accommodation for their mental illness and
    jeopardizing their education.

71
Virginia Tech Task Force(s) Recommendations
  • 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
    incidents.

72
Implications
  • 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

73
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.

74
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.

75
Responding to Psychological Disabilities
  • 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
    institution.
  • Treat each case individually.
  • Distinguish risk assessment from treatment.

76
The OCRs 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.

77
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.

78
Individualized Assessment One Size Does Not Fit
All
  • Functional limitations resulting from a
    particular disorder will vary from student to
    student.
  • Surrounding circumstances of each situation will
    vary.
  • Must apply decision-making on a case by case
    basis.

79
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).

80
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 students disability or diagnosis to the
    professor, however they do need to know the
    students limitations.
  • Be specific in your request for medical evidence
    and clear about who should provide it.

81
Individualized Assessment Provide Notice
  • Nott v. George Washington University
  • Make every effort to meet in person or by phone
    with the student prior to making a decision.
  • May need to go to them (home, hospital,
    therapists office, etc.)
  • Provide a reasonable period of time for
    decision-making.
  • Utilize interim suspension or interim leave
    procedures when necessary.

82
Individualized Assessment Direct Threat Analysis
  • Review
  • Nature
  • Frequency
  • duration of the behavior
  • Assess
  • Likelihood
  • Imminence
  • And nature of harmful conduct in the future

83
You Must Consider Alternatives to Suspension
  • 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.

84
Establish and Communicate Conditions for Return
  • You may set requirements upon exit that must be
    met prior to your considering the students
    return.
  • You may be more specific with requirements for
    readmitting students than during their initial
    admission to the college or university.

85
Readmission Agreements
  • State terms of exit and readmission
  • Indicate that have received medical information
    as requested
  • Institution desires to assist and support, but
    has certain expectations
  • Student must comply
  • Can confirm receiving counseling or other medical
    treatment
  • Acknowledges that the agreement is not
    disciplinary action, but failure to abide by it
    will result in such.

86
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.

87
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-Champaigns
    model is a good starting point. It reduces its
    liabilities and helps students.
  • Establish Threat Assessment Teams and Critical
    Incident Response Plans.

88
Policies, Procedures and Protocols
89
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

90
Develop Technical Standards
  • Not otherwise qualified not entitled to
    accommodations.
  • To determine qualifications, must have
    standards.
  • 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 24th Annual Law and
    Higher Education Conference. 2003.

91
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
    skills.
  • Include complying with Code of Conduct as a
    technical standard.

92
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.

93
Psychological Disabilities and Student Misconduct
  • 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.

94
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)

95
Disturbed/Disturbing Matrix
Mental Health Concern Disturbed
YES
NO
YES
Disruptive Behavior Disturbing
NO
Dunkle, Silverstein and Warner 2008
96
Disturbed/Disturbing Student Observed
Chief Student Affairs Officer Monitor roles and
responsibilities of other administrators. Be
involved as appropriate.
Dunkle, Silverstein and Warner 2008
97
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 easier.
  • 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 problems.
  • 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.

98
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.

99
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.

100
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).

101
Department of Education Final Rule (January 8,
2009)
  • New regulations encourage institutions to release
    information to avoid outbreaks of violence.
  • They make it crystal clear to schools that they
    have flexibility if theres an emergency (LeRoy
    Rooker, former director of the Family Policy
    Compliance Office).

102
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 consentin connection with a health and
    safety emergency.
  • ED will not second guess an institution's
    conclusion that a health or safety emergency
    exists.
  • May disclose to protect the health and safety of
    the student or other persons

103
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 harm.

104
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 record.
  • ED review will focus on information available at
    the time of determination and will not
    substitute its judgment in evaluating
    circumstances.

105
FERPAs Final Rule
  • Attendance
  • Directory information
  • Education records
  • Permissible disclosure without student consent
  • School official definitions
  • Redisclosures
  • Personally identifiable information
  • Enforcement
  • www.ed.gov/legislation/FedRegister/finrule/2008-4/
    120908a.pdf

106
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
    violence.
  • Provisions for release of private information in
    the case of serious threat to health and safety.

107
Responding Effectively to a Threat and/or Crisis
108
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

109
When a Crisis Explodes, the Administration Is
Tested
  • When unanticipated events or crises occur, the
    best intentions regarding how the senior
    administrators and the institutions professional
    communicators will react to those events and
    communicate internally and externally may
    evaporate.

110
The Institution May Appear to Lose Its Way
  • 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 institutions
    insular ivy walls.
  • It often seems as if the ability to think, act
    and communicate decisively and appropriately is
    lost.

111
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.

112
Preventative and Proactive Assessment and Planning
  • Prepare now for the unexpected and unforeseen.
  • Anticipate and identify potential student related
    events, crises and/or tragedies.
  • Learn from the experiences of others.

113
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 solutions.
  • Develop policies, procedures and protocols to
    respond to these issues.
  • Educate and train your staff.

114
A Triangulated Approach to Crisis Management
  • First, make decisions that take into
    consideration the best interests of students --
    all students.
  • Second, make decisions that take into
    consideration how the institutions interests may
    be affected and can be protected.

115
A Triangulated Approach to Crisis Management
  • Third, focus on controlling the institutions
    message and the media, to the extent
    appropriate and practicable.
  • To accomplish these objectives, requires
    foresight, planning, preparation, confidence,
    trust and credibility.

116
How Can You Be Prepared?
  • Create effective policies and follow them.
  • Keep good recordsgood paper helps, bad paper
    hurts.
  • Understand your institutions process for
    engaging legal counsel.
  • Be diligent about confidentiality.
  • Understand attorney-client privilege.
  • Work to educate others on your campus.

117
Working Effectively with Faculty
118
From the Survey Issues that Keep You Up at
Night
  • Faculty lack of understanding and lack of
    interest in learning about disabilities.
  • Faculty who dont get it.
  • Student with disability conflict with faculty.
  • Individual instructors who try to block
    students accommodations.
  • Instructor ignorance.
  • Faculty attitude.

119
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)

120
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
    disabilities.

121
The Legal Requirements
  • Rehabilitation Act of 1973
  • Americans with Disabilities Act
  • ADAAA
  • State Law (New York Human Rights Law)
  • Local ordinances
  • OCR regulations
  • DOJ regulations
  • Contractual obligations

122
Section 504 of the Rehabilitation Act
  • 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 institutions
    educational program or activity.

123
This Is a Shared Institutional Responsibility
  • 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 burden.

124
One Legal Caveat for Your Consideration
  • 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.

125
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.

126
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. EDs Section 504 regulations as
    currently written are valid .
  • OCR is currently evaluating the impact of the
    Amendments Act on OCRs 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.

127
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.

128
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 dont 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.

129
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.

130
What Strategies Have You Found to Be Particularly
Successful?
  • 1.
  • 2.
  • 3.
  • 4.
  • 5.
  • 6.
  • 7.

131
Wrapping Up
132
Effective Risk Management for Students With and
Without Disabilities The Intersection of Risk,
ThreatS and CrisEs on College and University
Campuses
  • 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 institutions legal counsel regarding the
    specific facts and circumstances associated with
    any legal matter or case.
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