From the WSJ Opinion Archives
REVIEW & OUTLOOK
Caught in the (Legal) Crossfire
Virginia Tech could have been sued no matter what it did.
Within hours of the Virginia Tech massacre, pundits were speculating on lawsuits, and understandably so. We will leave to security experts the question of whether Virginia Tech should be held accountable for not informing students--between shooting sprees--that an armed gunman was possibly loose on campus. The bigger question now concerns Cho Seung-hui's history of mental-health problems. What legal burden did they impose on Virginia Tech's administrators? And--no less important--what could school officials have done about this troubled student without colliding with student "rights" and other legal barriers to school authority?
Cho had been sent by a judge to a mental-health facility in 2005, having stalked two women on campus. An English professor was so shocked by his classroom manner and grisly prose that she asked for help from her department head, who took Cho out of the class and notified school officials. But because Cho had not made any direct threats, officials said, there was little that they could do.
This is the Catch-22 that universities now face when it comes to governing a campus. There is a lingering sense that they should act in loco parentis at least by protecting potentially dangerous or disturbed students from themselves and others. And the tort bar is ready to pounce when they don't. In 1995, Harvard student Sinedu Tadesse was exhibiting antisocial behavior similar to Cho's; eventually she stabbed her roommate to death and then hanged herself. The roommate's family sued Harvard for "wrongful death, conscious pain and suffering and emotional distress." In 2002, the parents of Elizabeth Shin sued MIT after their daughter committed suicide. The Shin family claimed MIT had "fail[ed] to provide reasonable medical/mental health services." (Both cases were settled out of court.)
A reasonable university administrator might conclude from all this that mentally ill students--when there is even a remote possibility that they will be dangerous--need to be removed from campus, at least until their condition has improved. But not so fast. In 2004, George Washington University suspended Jordan Nott after he sought medical treatment for severe depression. Officials said later that they were trying to act in Mr. Nott's best interests, by forcing him to take time off to get counseling. Mr. Nott sued the university, arguing that it had violated his rights under the Americans With Disabilities Act. The school and Mr. Nott settled out of court last fall.
In the same rights-based spirit, Virginia recently passed a law barring public colleges and universities from punishing or expelling students "solely for attempting to commit suicide, or seeking mental-health treatment for suicidal thoughts or behaviors." Hard as it may be to believe, removing Cho Seung-hui from campus might have been deemed illegal by state authorities.
Our hearts don't often go out to college administrators, but they are, in fact, in a terrible bind. As Philip K. Howard, the author of "The Death of Common Sense," explained to us: "The legal system has substantially disabled the judgment of the people with responsibility." Not that a mere change in law will help very much. He points to the absurd reforms following the 1999 Columbine shooting that resulted in "first-graders being suspended for drawing guns on pieces of paper."
The problem is less legal than cultural. Students now see themselves as autonomous, despite their frequent inability to meet even the minimum standards of adult conduct. The protests of the 1960s were said to have set students free from the shackles of grown-ups. And now we have a generation of parents--those same boomers--filing multimillion-dollar lawsuits if a school official doesn't protect their children properly. There is a certain irony here.
At Virginia Tech, the families of the dead will want to know, understandably, why Cho Seung-hui was allowed to remain at school. And they will likely demand compensation for what they will argue was a potentially foreseeable tragedy. At least part of the blame, though, belongs with those who, long ago, decided to "challenge authority" at the expense everything else--including, it turns out, safety itself.
