DEALING WITH THREATS OF VIOLENCE ON CAMPUS BY TROUBLED
STUDENTS
June 27 – June 30, 2007
Lucien Capone III
The University of North Carolina at Greensboro
Greensboro, North Carolina
I.
Introduction
Just as violence occurring in broader society, campus violence runs the gamut from
simple assaults to murderous rampages. What is truly different about campus violence is that it
tends to occur much less frequently than in society at large. For example, in a 2004 study
conducted by the UNC Task Force on Campus Safety, it was determined that the crime rate for
UNC Campuses is only one-sixth of the state wide crime rate and the incidence of violent crime
is even lower.1 However, when students are severely harmed or killed, especially in a mass
murder scenario, press and public attention is intense and the calls for action by school
administrators to “keep this from happening again,” are loud and insistent. While this is
understandable, there is a danger that a siege mentality may set in leading to extreme measures
that will produce little in the way of real increases in safety.
The public also seems to have little awareness of the legal restraints placed on school
administrators’ ability to share information about troubled students, including FERPA, ADA,
Section 504, HIPAA and state privacy laws. While there are “direct threat” and “health and
safety emergency” exceptions included in those laws, these exceptions are very narrowly
construed.2
The attempt to strike an appropriate balance between implementing prudent safety
measures while maintaining the openness of our higher education institutions, and preserving
privacy rights in the process, is an enormous challenge. There are no easy answers. This paper
will address legal aspects of some of the ideas and techniques campuses are employing to deal
with this most difficult yet crucial of charges.
II.
Basic Legal Principles Defining the Parameters for Dealing with Troubled Students
Before proceeding to a discussion of specific strategies that are being employed to deal
with campus safety vis-à-vis troubled students, it is important to define the general legal
boundaries within which administrators are free to roam when crafting policies and procedures.
A.
Constitutional and Contractual Limits on Removing Admitted Students
1
Task Force on the Safety of the Campus Community, The University of North Carolina, Final Report, Executive
Summary, December 14, 2004, http://counsel.cua.edu/Final_safety_task_force_report.pdf.
E.g., 34 C.F.R. § 99.36(c) which expressly provides that the health and safety exception to FERPA’s consent
requirements is to be “strictly construed.”
2
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Once a student has been admitted to a public university, that student has a
constitutionally protected interest in his or her attendance. The student may not be removed from
the school without due process, i.e., the student must be given notice and an opportunity to be
heard prior to suspension or dismissal. However, in emergency situations, the student may be
immediately removed from residence halls and from classes so long as a due process hearing is
provided at the earliest possible opportunity. Goss v. Lopez.3 Courts tend to afford the same due
process rights to students at private schools based on a contract theory.4
B.
ADA/504 and the “Direct Threat” Exception5
These two laws forbid universities from discriminating against students on the basis of a
disability, including mental illness. However, a university is not required to permit an individual
to participate in or benefit from the goods, services, facilities, privileges, advantages and
accommodations of the university where such individual poses a direct threat to the health or
safety of others. The term ''direct threat'' means a significant risk to the health or safety of others
that cannot be eliminated by a modification of policies, practices, or procedures or by the
provision of auxiliary aids or services.6
Case law interpreting the direct threat exception makes it clear that the threat has to be
concrete and not based on mere supposition that an individual’s disability might result in
dangerous conduct. For example, in Ascani v. Hofstra University,7 the University did not violate
the ADA when it expelled a student with mental illness who threatened her professor. The court
held that the student was not “otherwise qualified” because she posed a direct threat to the safety
of others and was, therefore, not entitled to the protections of the Act.
Similarly, in Layser v. Morrison,8 the University sufficiently established that Layser, a
University security officer, presented a direct threat and significant risk to the health and safety
of others, justifying the University's actions in stripping him of his firearm, placing conditions on
his employment and reassigning him to a dispatch position, where Layser's psychologist testified
that he had contacted Layser’s supervisor to warn him that Layser had been having thoughts
about shooting the supervisor, and Layser told the psychologist that he “might end up in trouble”
if he went to work while still experiencing anger toward the supervisor.
3
419 U.S. 565 (1975).
4
See, e.g., Jarzynka v. St. Thomas University of Law, 310 F.Supp.2d 1256 (S.D.Fla.2004) (law school student who
made threatening and physically intimidating remarks to members of law school community could be suspended,
but private law school was contractually obligated to provide due process).
5
Americans With Disabilities Act, 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act of 1973, Pub.
L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 29 U.S.C. § 794.
6
42 U.S.C. § 12182 (b) (3).
7
173 F.3d 843 (2d Cir. 1999) (unpublished opinion).
8
935 F.Supp. 562 (E.D.Pa. 1995).
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On the other hand, in Clark v. Virginia Board of Bar Examiners,9 an applicant for
admission to the Virginia bar sued the Board of Bar Examiners contending that questions on the
license application as to whether the applicant had been treated or counseled for any mental,
emotional or nervous disorders violated the ADA. The Court ruled for Clark holding that the
“direct threat” exception was inapplicable because there was no evidence to show that applicants
who answered the question affirmatively necessarily threatened the health and safety of the
public.
C. FERPA and Information Sharing
The ability to share information about a troubled student is limited by FERPA and its
implementing regulations.10 FERPA prohibits nonconsensual disclosure of personally
identifiable information from the student’s education records.11 The term “Education records”
means those records that are (1) directly related to a student, and (2) maintained by an
educational agency or institution or by a party acting for the agency or institution. “Record"
means any information recorded in any way, including, but not limited to, handwriting, print,
computer media, video or audio tape, film, microfilm, and microfiche.12
However, an educational agency or institution may disclose personally identifiable
information from an education record to appropriate parties in connection with an emergency if
knowledge of the information is necessary to protect the health or safety of the student or other
individuals.13 Additionally, an educational agency or institution may:
(1) include in the education records of a student appropriate information concerning
disciplinary action taken against the student for conduct that posed a significant risk to
the safety or well-being of that student, other students, or other members of the school
community;
(2) disclose appropriate information concerning disciplinary action taken against the
student for conduct that posed a significant risk to the safety or well-being of that student,
other students, or other members of the school community to teachers and school officials
within the agency or institution who the agency or institution has determined have
legitimate educational interests in the behavior of the student; or
(3) disclose appropriate information concerning disciplinary action taken against the
student for conduct that posed a significant risk to the safety or well-being of that student,
other students, or other members of the school community to teachers and school officials
9
10
880 F.Supp. 430 (E.D. Va. 1995).
20 U.S.C. § 1232g; 34 C.F.R. Part 99.
11
34 C.F.R. § 99.30(a).
12
34 C.F.R. § 99.3.
13
34 C.F.R. § 99.36.
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in other schools who have been determined to have legitimate educational interests in the
behavior of the student.
Just as invocation of the “direct threat” exception to ADA/504 is narrowly limited by
OCR, the “use of the health or safety emergency exception to FERPA’s consent requirements is
also strictly construed by the Family Policy Compliance Office (FPCO). In a “Dear Colleague”
letter issued by the U.S. Department of Education in 2002, FPCO’s director, Leroy Rooker, said,
[T]he Department consistently has limited the health and safety
exception to a specific situation that presents imminent danger to a
student, other students, or other members of the school community
– or to a situation that requires immediate need for information
from education records in order to avert or diffuse serious threats
to the safety or health of a student or other individuals...however,
any release must be narrowly tailored considering the immediacy,
magnitude, and specificity of information concerning the
emergency…[and must be] temporally limited to the period of the
emergency and generally will not allow for a blanket release of
personally identifiable information… .14
D. Campus Crime Alerts
The Campus Security and Student Right to Know Act15 requires universities to publish
statistics on certain types of crimes occurring on or adjacent to the campus and to promulgate
campus safety alerts whenever criminal activity has or is likely to occur. With respect to the
crime alerts, the Act specifically requires that:
Each institution … shall make timely reports to the campus
community on crimes considered to be a threat to other students and
employees described in paragraph (1)(F) that are reported to campus
security or local law police agencies. Such reports shall be provided
to students and employees in a manner that is timely and that will aid
in the prevention of similar occurrences.
Where a student is the suspect, if the alert is issued by university administrators, it may
identify the suspect only if the alert meets the health or safety emergency standards discussed in
Section II.C. However, it is important to note that FERPA exempts police records from the
definition of education records so long as those records are maintained by the law enforcement
agency and not the educational institution.16 Thus, the crime alert can specifically identify the
14
http://www.ed.gov/policy/gen/guid/fpco/pdf/htterrorism.pdf
15
20 U.S.C. § 1092(f).
16
34 U.S.C. § 99.8.
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suspect, even if the suspect is a student, if the information was gathered by police, and the alert is
issued by the police.
III.
Campus Threat Assessment and Safety Inventory
Before expending scarce resources and staff time on safety improvements that may or
may not be effective, it would behoove every institution to analyze what the real threat of
violence is for its campus and then determine (1) what safety measures are already in place, (2)
whether those measures match the threat and, (3) if not, what needs to be added or changed. For
example, in 2004, in response to two murders involving students at UNC Wilmington (only one
of which occurred on campus), former UNC President, Molly Broad, created a task force to
study the issues and make recommendations for improving campus safety. After extensive study,
the task force found the following facts, some of which were obvious, others that were surprising
and even counterintuitive:
* During the period from July1, 2001 to June 30, 2004, the unduplicated student (systemwide) population was about 250,000. During that same period there were 1,086 reported
“violent”17 campus crimes (0.0043 crimes per student). Only one of those crimes was a
murder.
* A student was identified as the suspect in 532 (49%) of those cases.
* The most prevalent form of violent crime was assault, with 80% being simple assaults.
* 58% of the reported violent crimes occurred inside residence halls or other campus
buildings.
* Only 21 students who committed a violent crime during the three-year period had a
criminal history. That figure represents only 3% of the suspects. 13 of those 21 students
had not disclosed that history on their application for admission.
* Victims were evenly divided between men and women.
* In approximately half of all reported incidents, the victim and suspect knew each other.
Based on these findings, where does common sense dictate that campus administrators
should be focusing most of their time and attention? Should millions of dollars be spent on
sophisticated electronic surveillance and detection devices, cipher locks, extensive criminal
background check requirements, more police officers, and the like? Or would time and money be
better spent teaching students and staff how to recognize and avoid dangerous situations and
teaching students anger management techniques?
With those considerations in mind, a discussion of some of the options for identifying
and dealing with threats follows.
The term “violent” campus crime was defined to include aggravated and simple assaults, forcible and nonforcible sex offenses, kidnapping, murder, robbery and stalking.
17
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III.
The “Enemy at the Gate”: “Front Door” Options and The Admissions Process
Keeping a dangerous individual off campus and out of the student body is obviously
preferable to having to deal with such a person once he or she has been admitted to the campus
and before constitutional or contractual due process rights take hold.
A.
Criminal History18
On the theory that past behavior is the best predictor of future conduct, applicants for
admission should be asked about their criminal and disciplinary histories (state law permitting).
It should be made clear that failure to reveal such a history or falsification of that information
may result in denial or revocation of admission or employment. “Trust but verify” is not a bad
policy in this area. If anything on the admissions application looks suspicious, or if the applicant
discloses negative history, it would be prudent to complete a full criminal background check
since even honest people will skew personal data to look more favorable. The UNC Campus
Safety Task Force made the following specific recommendations:
* Ask clear and consistent questions concerning disciplinary, criminal, military and
enrollment history.
* Emphasize that failing to provide complete and accurate information will constitute
grounds for immediate denial of admission, withdrawal of admission, and/or withdrawal
of enrollment.
* Require applicants to report criminal history between the date of application and the
date of enrollment.
A few additional words on criminal background checks are in order here. While there is
great pressure to require that schools complete full criminal background checks on all applicants
offered admission, there is little evidence that this effort will yield much additional safety for the
cost involved. As noted above, a very small percentage of reported campus violent crimes were
committed by individuals having a prior criminal record. This may be due, at least in part, to the
fact that juvenile records do not show up in criminal background checks and most students have
only been subject to the adult criminal system for a short period of time prior to enrolling in
college. Another danger is that of adverse impact. As Randy Geller points out in his treatise on
Criminal Conduct by Students-The Institution’s Response, at p. 3, (NACUA 2007),
It is well documented that minority group members tend to be convicted of
crimes in numbers disproportionate to their representation in the general
population. Thus, the effect of a policy automatically barring admission
due to a criminal conviction would be to exclude a disproportionate
number of minority applicants. This does not mean that federal law
Volumes have been written on the do’s and don’ts of questions regarding criminal history. An excellent source
of additional information on this topic is a new NACUA publication, authored by Randolph Geller, entitled
“Criminal Conduct by Students-The Institution’s Response,” at pp. 1-5 (NACUA 2007).
18
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prohibits an inquiry into convictions; rather, it means that an institution
should analyze the applicant’s particular circumstances before denying
admission on the basis of a conviction.
B.
Disciplinary History
As is the case for criminal history, applicants should be asked about prior disciplinary
actions at previous schools, the military and employers. Here too there is no guarantee that the
applicant will be truthful, so to the extent that information provided on the application can be
verified it should be. One thing UNC found is that students who are facing serious disciplinary
charges will drop out of school prior to resolution of those charges and immediately enroll in
another school. While some campuses will proceed in absentia, others will not. UNC created a
system-wide expulsion/suspension database so that applicants can at least be checked against that
information. Additionally UNC is asking the public school and community college systems in
North Carolina to report suspensions and expulsions on transcripts or transcript supplements.19
C.
Other Suspicious Indicators
Admissions staff should be trained to identify specific “triggers” that may warrant the
need for a more thorough background check, e.g., an unexplained gap in time between high
school graduation and application for admission. Inconsistencies in information provided at
various stages of the process should also be resolved prior to admission. For example, in one
case at UNCG, a 34 year old transfer applicant listed attendance at Strayer University as her only
prior college, and she answered “no” to all of the campus safety questions (dealing with criminal
and disciplinary history). However, the student subsequently met with an advisor in the
admissions office and listed attendance at a community college, but said that she couldn’t
remember what courses she took and couldn’t get a transcript. She also had no employment
record since high school graduation in 1991. Subsequent checking revealed that she had been
expelled from another UNC campus for falsifying an application. Needless to say, UNCG
rejected her application.
4.
Referral to Special or Extraordinary Admissions Committee
Many institutions make use of special committees to review questionable applications.
These committees usually have a multidisciplinary membership including mental health
professionals, faculty, student affairs staff, legal counsel, and law enforcement representatives.
When an application is referred to the committee by Admissions staff, the committee may decide
to request that the applicant either provide or give consent for the committee to obtain additional
information such as criminal records, disciplinary records and records of mental health treatment.
The charge to such a committee needs to be clear and narrowly limited to that of rendering an
opinion as to whether the applicant poses a risk to the university community. A typical
committee charge might read as follows:
19
Task Force on the Safety of the Campus Community, The University of North Carolina, Final Report, December
14, 2004 at pp 6-7, http://counsel.cua.edu/Final_safety_task_force_report.pdf.
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The Director of Admissions may (but is not required to) refer any
admissions case to the Committee on Extraordinary Admissions
for the purpose of seeking advice and consultation in the decision
making process. Normally referrals will occur in those cases
presenting difficult or unusual legal, emotional, behavioral, or
other issues which, in the judgment of the Director of Admissions,
may result in the admission of a person who, while otherwise
meeting objective admissions criteria, might jeopardize the safety
of the University community or the educational interests of the
University or for whom the stress of the academic environment
may be destructive to the person’s physical or mental health.20
It is critical that university counsel play an advisory role to such a committee in order to
ensure that violations of the ADA/504 do not occur and that other legal rights of the applicant are
observed.
IV.
The “Enemy Within”- Options for Dealing with Admitted Students
A.
“Threat Assessments,” and “Targeted School Violence”
In 2002, the U.S. Secret Service issued a final report from its “Safe Schools Initiative,” a
joint project with the U.S. Department of Education.21 One of the key recommendations of the
Safe Schools Initiative was that school officials, working together with law enforcement and
mental health professionals should:
develop the capacity to pick up on and evaluate available or
knowable information that might indicate that there is a risk of a
targeted school attack; and, employ the results of these risk
evaluations or “threat assessments” in developing strategies to
prevent potential school attacks from occurring.22
The term “threat assessment” in this context means, “a fact-based investigative and
analytical approach that focuses on what a particular student is doing and saying, and not on
20
Excerpt from the Protocol for Committee on Extraordinary Admissions, University of North Carolina at
Greensboro (1992)(Attached).
21
The Final Report and Findings of the Safe School Initiative: Implications for the Prevention of School Attacks in
the United States, The United States Secret Service and the United States Department of Education, May 2002,
http://www.ed.gov/admins/lead/safety/preventingattacksreport.pdf.
22
Id at 41.
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whether the student ‘looks like’ those who have attacked schools in the past.”23 The report
contained ten key findings about “targeted”24 school violence:










Incidents of targeted violence at school rarely were sudden, impulsive acts.
Prior to most incidents, other people knew about the attacker’s idea and/or plan to attack.
Most attackers did not threaten their targets directly prior to advancing the attack.
There is no accurate or useful “profile” of students who engaged in targeted school
violence.
Most attackers engaged in some behavior prior to the incident that caused others concern
or indicated a need for help.
Most attackers had difficulty coping with significant losses or personal failures.
Moreover, many had considered or attempted suicide.
Many attackers felt bullied, persecuted or injured by others prior to the attack.
Most attackers had access to and had used weapons prior to the attack.
In many cases, other students were involved in some capacity.
Despite prompt law enforcement responses, most shooting incidents were stopped by
means other than law enforcement intervention.25
(Emphasis added).
The Secret Service and Department of Education issued a 99 page follow-on report
detailing how threat assessment programs should be implemented and conducted.26 That
Report identifies three key implementation components:
(1) Create a formal policy covering the following topics:
• the purpose and scope of the policy;
• the role of educators and the threat assessment team vis-à-vis the
role of law enforcement;
• the identity of, and delegation of authority to, school officials
concerning determination that a threat assessment inquiry or
investigation should be pursued;
23
Id.
24
For the purposes of this study, an incident of targeted school violence was defined as any incident where (i) a
current student or recent former student attacked someone at his or her school with lethal means (e.g., a gun or
knife); and, (ii) where the student attacker purposefully chose his or her school as the location of the attack.
Consistent with this definition, incidents where the school was chosen simply as a site of opportunity, such as
incidents that were solely related to gang or drug trade activity or to a violent interaction between individuals that
just happened to occur at the school, were not included.
25
Id at 18.
26
Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School
Climates, The United States Secret Service and the United States Department of Education, May 2002,
http://www.secretservice.gov/ntac/ssi_guide.pdf.
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• the definition of the threshold of concern for initiating a threat
assessment inquiry or investigation, i.e., a description of the nature
and extent of behavior or communication that would trigger a
threat assessment inquiry or investigation; and
• the description of the types of information that may be gathered
during the assessment;
(2) Create a multidisciplinary team to conduct threat assessments chaired by a school
administrator and including among its membership:
a) a respected member of the school faculty or administration;
b) an investigator, such as police officer assigned to the school;
c) a mental health professional, such as a forensic psychologist, a clinical
psychologist, or a school psychologist;
d) other professionals, such as counselors, teachers, coaches, and others,
who may be able to contribute to the threat assessment process, and,
e) an ad hoc member of the team who knows the student of
concern;27
(3) Create integrated system relationships both within and external to the school. Such
relationships should include mental health professionals and agencies, student affairs personnel,
faculty representatives, law enforcement officials, campus attorneys, etc.
B.
Managing Threats
Managing threats needs to be undertaken on two levels: (1) systemic, i.e., creating a
climate of campus safety and a campus safety plan, and (2) individualized, i.e., getting help for
and/or removing the troubled student.
1.
Systemic measures: creating a climate of campus safety and a
campus safety plan.
Raising and maintaining awareness of campus safety issues among all members of the
campus community will likely be the single most effective way of preventing or at least
mitigating, campus violence. In his book, “The Gift of Fear,” Gavin de Becker, a noted authority
on threat assessment and managing violence, teaches that most violent acts are preceded by clear
warning signs, however, most of us ignore those signs for a variety of reasons, some personal
and some cultural. Staff and students need to be encouraged to pay attention to their survival
instincts and, particularly with respect to students, break the “code of silence” and report their
27
Id at 37-38.
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concerns to campus safety officials. Campuses should conduct training, both for students and
staff on warning signs such as those identified by the Safe Schools Initiative.
Additionally, students (and, unfortunately, some staff) must be taught the importance of
anger management and mutual respect. As noted earlier, a key finding of the Safe Schools
initiative was that many attackers felt bullied, persecuted or injured by others prior to the attack.
Each campus should construct a campus safety plan based on an assessment of key
vulnerabilities, and an inventory of safety assets such as relevant policies and procedures, mental
health intervention options, physical plant, etc. The plan should ensure that assets match the
areas of vulnerability. Additionally, it is a good idea to periodically conduct a safety survey of
staff and students to identify perceived areas of strength and deficiencies.
2.
Managing individualized threats
As noted in Section III., once a student has been admitted, privacy rights, especially
FERPA, take hold, and constitutional or contractual due process rights must be observed. Within
that context, some of the strategies campuses are using to manage identified threats are:
Counseling or other mental health intervention
Emergency suspensions
Involuntary commitments or medical withdrawals
Campus ban as a condition of bail or probation
Campus safety alerts
Counseling
Short of legal commitment proceedings, students cannot be legally forced to accept
counseling or other mental health treatment.28 As university attorneys, we constantly, and
correctly, advise our clients not to impose required mental health treatment plans as sanctions for
inappropriate behavior. The most that we can advise our clients to do is to offer counseling
services.
If the student accepts the referral, the issue of information sharing still has to be
considered, especially if the student expresses specific threats of violence. The tension between
client confidentiality and the duty to warn is of specific concern to mental health professionals.
28
Rennie v. Klien, 462 F.Supp. 1131 (D. N.J. 1978).
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In Tarasoff v. Regents of the University of California,29 a patient told a university hospital
psychologist that he planned to kill his girlfriend. Although the psychologist reported the threat
to the police, no one informed the girlfriend. Two months later the patient committed the murder.
The Court held the psychologist liable holding that the psychologist breached a duty to warn the
girlfriend about this very specific threat. Many states have adopted Tarasoff provisions into
statutes governing mental health professionals.
Emergency suspension
Once a student has manifested overt behaviors that violate school conduct policies or
criminal statutes it is possible to take quick action to remove the student from residence halls or
the campus so long as due process is afforded at the earliest possible opportunity. The leading
case on this point is Goss v. Lopez, where the Supreme Court said,
Students whose presence poses a continuing danger to persons or
property or an ongoing threat of disrupting the academic process
may be immediately removed from school. In such cases, the
necessary notice and rudimentary hearing should follow as soon as
practicable30
This principal was applied in a college setting in the case of Picozzi v. Sandalow, where a
law school student who was suspected of setting fire to his residence hall was summarily
suspended pending the outcome of an administrative hearing.31
Involuntary commitment and/or medical withdrawal
Where a student manifests behaviors that, in the opinion of qualified medical
professionals, constitute a threat to the safety of the student or others, the student may be
involuntarily committed to a mental health facility in accordance with state laws or may be
medically withdrawn from the university. However, the authority to withdraw a student is
narrowly proscribed by the U.S. D.Ed., Office of Civil Rights. For example in OCR Complaint
No. 15-04-2042, Bluffton College was held to be in violation of Section 504 when it
involuntarily withdrew a suicidal student without making an adequate determination that the
student was likely to attempt suicide in the future. Specifically, OCR found that the University
did not consult with medical personnel, examine objective evidence, ascertain the nature,
duration and severity of the risk to the student or other students, or consider mitigating the risk of
injury to the student or other students. The University made the decision without providing the
student notice of a hearing or an opportunity to be heard. Rather, the evidence showed that the
University made a determination to withdraw the student within forty-eight hours of her
29
17 Cal. 3d 425; 551 P.2d 334 (1976). Also see, Ewing v. Northridge Hospital Medical Center, 120 Cal. App. 4th
1289 (2004).
30
419 U.S. 565, 582-583 (1975).
623 F.Supp. 1571 (E.D. Mich.,1986), aff’d, 827 F.2d 770 (6th Cir. 1987), cert. denied, 484 U.S. 1044 (1988).
Also see, Jarzynka v. St. Thomas University of Law, 310 F.Supp.2d 1256 (S.D.Fla. 2004).
31
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attempted suicide based on a conversation between a student affairs official and the President of
the College.
OCR’s description of the legal standards it will apply to the “direct threat” justification
for removing a student is instructive.
To rise to the level of a direct threat, there must be a high
probability of substantial harm and not just a slightly increased,
speculative, or remote risk. In a direct threat situation, a college
needs to make an individualized and objective assessment of the
student's ability to safely participate in the college's program,
based on a reasonable medical judgment relying on the most
current medical knowledge or the best available objective
evidence. The assessment must determine; the nature, duration,
and severity of the risk; the probability that the potentially
threatening injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will sufficiently
mitigate the risk. Due process requires a college to adhere to
procedures to ensure that students with disabilities are not subject
to adverse action on the basis of unfounded fear, prejudice, or
stereotypes. A nondiscriminatory belief will be based on a
student's observed conduct, actions, and statements, not merely
knowledge or belief that the student is an individual with a
disability. In exceptional circumstances, such as situations where
safety is of immediate concern, a college may take interim steps
pending a final decision regarding adverse action against a
student as long as minimal due process (such as notice and an
initial opportunity to address the evidence) is provided in the
interim and full due process (including a hearing and the right to
appeal) is offered later. (Emphasis added).
An example of a University Involuntary Medical Withdrawal policy incorporating this
standard is attached to this paper. The standard is stated as follows:
A student will be subject to involuntary medical withdrawal if the
Medical Withdrawal Panel concludes that, in its professional
judgment, the student is suffering from a mental, emotional, or
psychological health disorder and, as a result of this disorder,
engages, or threatens to engage, in behavior which
a. poses a significant danger or threat of causing
physical
harm to the student or others, or
b. substantially impedes the lawful activities of other
members of the campus community, or the educational
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processes or proper activities or functions
personnel.32
of the University or its
Campus ban as condition of bail or probation
Violent or threatening conduct may violate criminal statutes as well as student conduct
codes. There is often tension between the local district attorney and the school when it comes to
simultaneous proceedings. The D.A. is concerned that the campus proceeding may compromise
the criminal prosecution. The school is concerned with keeping the violator away from the
campus. One compromise that has worked is for the school to coordinate with the D.A. and have
the D.A. request a ban from the campus pending resolution of criminal charges as a condition of
bail. If the student is convicted but not given active jail time, the ban may be imposed as a
condition of probation, depending on the statutory latitude given to local judges in a particular
state.
Campus Safety Alerts
As discussed in Section II, campus crime alerts are now required by the Campus Security
and Student Right to Know Act. Although FERPA has to be considered if the information relates
to an enrolled student, if a determination is made that the student’s acts are creating a health or
safety emergency, the relevant information may be published. This is a case where “choosing
your lawsuit” may be the best a campus administrator can do under the circumstances, but if
legal counsel is obtained, and the determination is based on observed facts and made in good
faith, the odds are good that the school will not be sanctioned (at least severely) if it guessed
wrong.
V.
Conclusion
There are no easy answers to dealing with threats of violence on campus, and there are
certainly no guarantees that any measures taken will eradicate all possibility of harm to students
and staff. Even if one could build a thirty foot wall around the campus and search everyone
coming in, the fact remains that a determined individual may still find a way to beat even the
most draconian of security measures. It is important that administrators not over promise the
level of attainable safety, and it is equally important that institutions of higher education not
devolve into armed islands of paranoia. This (in my opinion) would serve only to exacerbate the
problem.
In a recent Washington Post article, written by Lionel Shriver after the Virginia Tech
massacre, Shriver gave voice to the following concern:
I also get the willies when I hear that, in response to this single
massacre, campuses across the country are now undergoing
“security reviews.” Anxious that no one claim in the future that
they, too, should have caught the “warning signs,” school
32
The University of North Carolina at Greensboro Policy on Student Involuntary Medical Withdrawal,
http://deanofstudents.uncg.edu/policy/medical.pdf.
The National Association of College and University Attorneys
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administrators nationwide will be tempted to institute policies that
infuse their institutions with a climate of fear, suspicion and
creative repression so at odds with the purpose of education.33
It is critical that perspective be maintained, that prudent steps be taken to
match safety measures with true as opposed to perceived threats, and that we do
what we do best – educate.
33
Lionel Shriver, “What the killers want,” Washington Post, April 22, 2007.
The National Association of College and University Attorneys
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