While this blog is entitled Understanding the ADA, the blog as you know extends into other laws that are related in one way or another to the rights of persons with disabilities. Also, as you know, I spent 12 years in higher education teaching people how to be paralegals, with the last four of that tenure running an ABA approved paralegal program. So, education and persons with disabilities is very much an interest of mine, and numerous blog entries, such as this one, deal with the issue of disability rights in the education context. In going through my list of blog entries, it doesn’t seem that I have ever discussed a pure tort law case, except for here. Tort law involves suing each other for civil wrongs, such as for personal injury, defamation, etc. Today’s case, The Regents of the University of California v. The Superior Court of Los Angeles County (real party in interest- Katherine Rosen), occurs at the intersection of tort law, education law, and disability rights. As usual the blog entry is divided into categories and they are: facts; issues; holdings; court’s reasoning special relationship; court’s reasoning policy considerations and foreseeability; concurrence; and takeaways. The reader is free, as usual, to concentrate on any or all of the categories.

Before proceeding with the blog entry itself, I would be remiss if I didn’t wish everyone a happy Easter and a happy Passover, whichever may be the holiday you are celebrating.

I

Facts:

Damon Thompson transferred to UCLA in the fall of 2008. He soon began experiencing problems with other students in both the classroom and in residence hall settings, including but not limited to:

  1. Emailing his history professor that he was angered by offensive remarks from other students during the final exam and outraged because their comments had affected his performance. He also complained that he had heard the professor calling him troubled and crazy among other things. The professor forwarded his messages on to the department chair where the professor was told to calm him and encourage him to visit the school’s counseling services if he appeared genuinely paranoid or a potential threat.
  2. Complaining about mistreatment by fellow dormitory residents by sending a three-page letter to the Dean of Students. A week later the school moved him to a new dormitory.
  3. Complaining to three professors and a teaching assistant that students have been trying to distract him with offensive comments. The teaching assistant told her supervising professor she had never observed this behavior, but that the student himself acted oddly, including frequently talking to himself. The teaching assistant believed he was displaying signs of schizophrenia and should be referred to the University counseling and psychological services. The teaching assistant and the supervising professor met with Thompson and urged him to use the service, but Thompson denied hearing things or making things up. Another professor forwarded Thompson’s complaint to the Assistant Dean of Students who contacted the University Consultation and Response Team. That team advises campus members having concerns about the well-being of a particular student. The Dean also met with Thompson and encouraged him to seek medical help with the University’s Counseling and Psychological Services.
  4. Thompson told the Resident Director that there were voices coming through the walls calling him an idiot. He heard a clicking noise from above sounding like a gun and believed other residents were planning to shoot him. He also told Resident Director that he had telephoned his father and was told to hurt other residents. While admitting he had thought about it, he said he decided not to hurt anyone. When campus police arrived, they searched the premises but did not find any weapons. Campus police concluded that Thompson needed psychiatric evaluation and escorted him to the emergency room for that purpose. During that examination, he reported a history of depression and complained of auditory hallucinations and paranoid thinking. He also said that for several months he had heard people talking about him and insulting him even when there was no one there though he denied suicidal or homicidal thinking. The examiner diagnosed Thompson with possible schizophrenia and major depressive disorder. Thompson agreed to take a low dose of antipsychotic medication and begin outpatient treatment at the counseling and psychological services of the University. The Dean and the response team were informed about the incident and his mental evaluation. The response team began discussing Thompson at their weekly meetings.
  5. In March 2009, Thompson began sessions with a University psychologist. While he denied wanting to hurt himself or others, he continued to report auditory hallucinations and paranoid thoughts. He also notified the therapist that he had thrown away his prescribed antipsychotic medication. The psychologist diagnosed him with schizophrenia and urged him to see a psychiatrist at the University. Thompson refused to consider medication until he could determine whether the voices were real and expressed frustration that nobody believed him and said he would try to record the voices. Also, around this time the Resident Director notified counseling and psychological services that Thompson was having trouble in the dormitory, and that resulted in the response team deciding to move him to a single room and to consider the possibility for transitioning him into different housing.
  6. Later in March, Thompson told University psychologist that he was still hearing voices and being harassed by other students. He said he was now open to psychiatric evaluation. Later that day, at a session with a University psychiatrist, Thompson admitted to thinking about harming others, although he had no identified victim or plan.
  7. The psychiatrist strongly urged him to submit to voluntary hospitalization. Thompson refused but agreed to take medication. While counseling and psychological services staff agreed that Thompson did not meet the criteria for an involuntary hold, the psychiatrist recommended involuntary hospitalization if his thoughts of harming others worsened. Thompson continued to attend counseling and psychological services sessions and continued to report auditory hallucinations all the while denying he intended to harm others. He eventually withdrew from treatment.
  8. After campus police responded to an incident at Thompson’s dormitory, Thompson was expelled from university housing and ordered to return to counseling and psychological services at the beginning of the fall quarter. After he moved to an apartment, Thompson twice called the police to complain that neighbors were yelling at him through the floor.
  9. Thompson continued to experience auditory hallucinations in the classroom. A campus and psychological services psychologist reported that Thompson displayed a guarded attitude, slow speech, delusional thought processes, and impaired insight.
  10. A teaching assistant emailed her professor about an incident where Thompson accused another student of calling him stupid and insisted on learning the student’s name. The teaching assistant eventually gave Thompson the name and told him to calm down, and Thompson seemed fine after that. However, the teaching assistant remained worried that Thompson’s behavior was becoming a weekly routine. The following day, another teaching assistant told her supervising professor that Thompson had come into the chemistry lab from a different section to accuse a student of verbally harassing him. That email was forwarded to the response team, who expressed concern that Thompson identified a specific student. The campus and psychological service director contacted one of their psychologist suggesting that Thompson may need urgent outreach and members of the response team tried to schedule a meeting to discuss him. He did not appear for a scheduled session with the psychologist that afternoon. The next morning, they decided to investigate whether was having similar difficulties in other classes.
  11. After all this, while he was doing class work in the chemistry laboratory Thompson without warning or provocation stabbed a fellow student in the chest with a kitchen knife. That student had been kneeling down, placing items in her lab door, when Thompson attacked her from behind. She was taken to the hospital with life-threatening injuries but ultimately survived. Thompson ultimately pleaded not guilty by reason of insanity to a charge of attempted murder and was admitted to a state mental hospital and diagnosed with paranoid schizophrenia.
  12. The student stabbed by Thompson sued University of California and several of its employees for negligence saying University owed her a duty of due care to protect her from foreseeable harm, and that the duty was breached by UCLA and its employees. At trial, the trial court concluded a duty existed. That decision was appealed, and a divided Court of Appeals held over dissent that UCLA owed no duty to protect the student who was stabbed.

II

Issue

  1. Does the University owe student a duty of care to protect a student from foreseeable harm?

 

III

Holding: Yes

IV

Court’s Reasoning Special Relationship

  1. A duty to control, warn, or protect may be based upon the defendant’s relationship with either the person whose conduct needs to be controlled or with the foreseeable victim of that conduct. That is, a duty to control may arise if the defendant has a special relationship with the foreseeably dangerous person that entails an ability to control that person’s conduct.
  2. In an appropriate case, that duty, per this case, may be fully discharged if adequate warnings are conveyed to the students at risk.
  3. The restatement third of torts identifies several special relationships that may support a duty to protect against foreseeable risks, including a school with its students.
  4. Special relationships as defined by the law have some common features including: an aspect of dependency where one party relies to some degree on the other for protection; control where one party is dependent. That is, one party has superior control over the means of protection; defined boundaries where a duty of care is owed to a limited community and not to the public at large; and the party charged with a duty of care specially benefits from the arrangement.
  5. When it comes to a university’s duty toward its students, California cases have taken a broader view when the problem is outside of alcohol-related injuries.
  6. As a result of the unique features of the college environment, post-secondary schools have a special relationship with students while they are engaged in activities that are part of the school’s curriculum or are closely related to it delivery of educational services.
  7. Colleges provide academic courses in exchange for a fee, but colleges are far more than just a typical business relationship. Similarly, residential colleges provide living spaces, but are much more than landlords. Along with educational services, colleges provide students with social, athletic, and cultural opportunities. All colleges provided discrete community for their students.
  8. For many students, college is the first time they have lived away from home and while they may no longer be minors under the law, they are still learning how to navigate the world as adults. That is, they are dependent on the college community to provide structure, guidance, and a safe learning environment. In such an environment where students pay tuition and other fees in exchange for using the facilities and where they spend a significant portion of their time and may in fact live, students can reasonably expect that the premises will be free from physical defects, and that school authorities will exercise reasonable care to keep the campus free from conditions that increase the risks of crime.
  9. Colleges have superior control over the environment and the ability to protect students.
  10. Colleges impose a variety of rules and restrictions in the classroom and across campus in order to maintain a safe and orderly environment. For example, they often employ resident advisors, mental health counselors, and campus police. They can monitor and discipline students when necessary.
  11. While the primary function of the college or university is to foster intellectual development through an academic curriculum, the college or university is involved in all aspects of the student’s life and provides a setting in which every aspect of student life is to some degree university guided.
  12. In a broader sense, college administrators and educators have the power to influence student values, their consciousness, their relationship, and their behaviors.
  13. Students are vulnerable and dependent on their colleges for a safe environment. Colleges have a superior ability to provide that safety with respect to activities they sponsor or facilities they control. Their relationship is bounded by enrollment status and so their special relationship is only with enrolled students; a limited population and a relationship of limited duration.
  14. Colleges are in a special relationship with enrolled students only in the context of school sponsored activities over which the college have some measure of control.
  15. Other States have ruled similarly, including Massachusetts, Florida, and Delaware.
  16. The incident giving rise to this case occurred in a chemistry laboratory while class was in session. The core of a college’s mission is education, and the classroom is the classic setting for curricular activities. More than any other place on campus, colleges can be expected to retain a measure of control over the classroom environment. While class attendance is not strictly monitored, any college student hoping to obtain a degree must attend classes and required laboratory sessions. Accordingly, it is reasonable for students to expect that their schools will provide some measure of safety in the classroom.

V

Court’s Reasoning Policy Considerations and Foreseeability

  1. The California Constitution declares that the right to public safety, where students and staff have the right to be safe and secure in their persons, extends to public and private elementary, junior high, senior high, and colleges or universities.
  2. Violence against students in the classroom or during curricular activities while it may be rare, is a foreseeable occurrence and so public policy does not justify categorically barring an injured student’s claims against the University.
  3. A reasonable University could perceive that its negligent failure to control a potentially violent student or to warn students who were foreseeable targets of his or her anger, could result in harm to one of those students, such as the incident at Virginia Tech in April 2007. So, classroom attacks are foreseeable occurrences that colleges have been equipping themselves to address for at least the past decade.
  4. Whether the University was or should have been on notice that a particular student posed a foreseeable risk of violence is a specific question to be examined in light of all the surrounding circumstances. Relevant to that determination are any prior threats or acts of violence by the student, particularly if those acts of violence target an identifiable victim.
  5. Additional relevant facts would be the opinions of examining mental health professionals or observations of students, faculty, family members, and others in the University community.
  6. When circumstances put a school on notice that a student is at risk to commit violence against other students, the school’s failure to take appropriate steps to warn or protect foreseeable victims can be causally connected to injury the victim suffer as a result of that violence. While a criminal act is always shocking, it is not completely unpredictable if a defendant is aware of the risk.
  7. Compared to students, colleges would typically have access to more information about potential threats and a superior ability to control the environment and prevent harm.
  8. The court did not buy the argument of UCLA that imposing a duty of care would discourage colleges from offering comprehensive mental health and crisis management services. That is, UCLA claimed that rather than becoming engaged in the treatment of the mentally ill students, colleges would have an incentive to expel anyone posing a remote threat to others. The court acknowledged that this decision would force schools to balance competing goals, force difficult decisions, and give some schools a marginal incentive to suspend or expel student displaying a potential for violence. It also might make schools reluctant to admit certain students or to offer mental health treatment. That said, decisions like those are circumscribed by laws such as the ADA (California has a very strong State equivalent law as well, the Unruh Act). Further, market forces driving colleges across the country to adopt sophisticated violence prevention protocols after Virginia Tech likely weigh against the dismantling of those protections. Finally, colleges and universities also have options short of expelling or denying admission to deal with potentially violent students and those options will vary from case to case. If such staff can avert violent episodes like the one in this case, recognizing the duty serves the policy of preventing future harm.
  9. UCLA also claimed that this duty will deter student from seeking mental health treatment or being candid with treatment providers for fear that their confidence it would be disclosed. That argument doesn’t wash because that issue has been around since 1976 when the California Supreme Court held in Tarasoff that a psychotherapist had a duty to warn others in certain circumstances. Since that time, no evidence has been produced that patients have been discouraged from coming to therapy or from speaking freely for fear that confidentiality will be breach.
  10. Threat assessment and violence prevention protocols are already prevailing on university campuses.
  11. UCLA like many other colleges across the country has already developed sophisticated strategies for identifying and diffusing potential threats to student safety. For example, the school created multidisciplinary teams of trained staff members and professionals for this very purpose. See also ¶ 1 of the takeaways §.
  12. UCLA expressly marketed itself to prospective students and their parents as one of the safest campuses in the country.
  13. In 2007, schools in the University of California system raised mandatory registration fee 3% in order to improve student mental health services and they planned further increases to implement all the violent prevention measures recommended by the Campus Security Task Force. So, recognition of the legal duty to protect students from foreseeable threats does not pose an unmanageable burden.
  14. The University’s duty is limited to enrolled students who are at foreseeable risk of being harmed in a violent attack while participating in curricular activities at the school. Further, that duty is to take reasonable steps to protect student when it becomes aware of a foreseeable threat to their safety. The reasonableness of those actions is a question of whether that duty has been breached and not whether the duty exists.
  15. UCLA offered no reason to doubt whether colleges could obtain insurance coverage for the negligent liability under consideration.
  16. Colleges are not the ultimate insurers of all student safety. Rather, they have a duty to act with reasonable care when aware of a foreseeable threat of violence in a curricular setting. Reasonable care varies from each case and it is absolutely possible that some assault may be unavoidable despite a college’s best effort to prevent them. So, courts and juries need to be cautioned to avoid judging liability based on hindsight.
  17. The appropriate standard of care for judging the reasonableness of the University’s action is an open question that the parties are free to litigate when it goes back to the lower courts. UCLA’s argument that there was little more it reasonably could have done to prevent the assault may be relevant to this determination.

VI

Concurrence

Justice Chin concurred but said the duty should be limited to the classroom only and not to the University at large.

VII

Takeaways

  1. The sophisticated strategies that universities have to fight mental illness on campuses can be quite sophisticated indeed. In fact, in this week’s Chronicle of Higher Education, there is an article talking about how UCLA is using technology to fight against depression. UCLA aims to cut the burden of depression in half by 2050 and to eliminate it by the end of the century. It uses an online program to measure the anxiety and depression levels of nearly 4000 students. In 12 to 15 minutes, students volunteering to take the screening test are categorized on the basis of mild to severe depression, anxiety, or suicidal thoughts. UCLA then uses those classification to get student to appropriate mental health treatments. The University has found that 20 to 25% of those it has screened since January of 2017, have at least mild levels of depression or anxiety and that 23% of those students received the campus counseling services. The director of the University’s anxiety and depression research Center said that the students are needing more than they can get from the services provided and that UCLA has excellent services. The UCLA study also said that only 50% of people getting treatment respond favorably to it. When the student is flagged as a suicide risk, researchers are alerted and within three hours, a staff member reaches out to discuss intervention. Depending upon the results of the computerized assessment, the student gets placed in different tiers and gets a generic Internet based therapy program. Students classified in the mild to moderate depression level are routed to the UCLA Resilience Peer Network, which is a collective of undergraduate and graduate students who have received training in mental health support or graduate students in clinical psychology. If a student persists being severely depressed, suicidal, or having signs of manic behavior, he or she is then placed into UCLA’s Research Clinic for treatment by psychology and psychiatry fellows under the supervision of licensed professionals. The director of UCLA’s Anxiety and Depression Research Center said, “it becomes a very personalized treatment based on their needs and how they are responding in the moment, and we are keeping track of that data not only to guide in the moment treatment decisions, but also to become a guide for selecting which individual is going to respond to a certain treatment.”
  2. Depending upon which side of the aisle you are on, the article in the Chronicle of Higher Education is fortuitous or not. I certainly expect it to be used by the plaintiff to show that the duty of care established by the California Supreme Court in this case was breached. It isn’t clear what systems UCLA had in place at the time of the occurrence in this case.
  3. Just why did I blog on this case? I blogged on this case for the very reasons suggested by UCLA in its arguments. That is, a reasonable person could foresee that all kinds of things might happen to students with mental health conditions that would not be favorable to them. For example, stereotyping to take adverse action, such as assuming a dangerous propensity when none exists. Another example, would be cutting a student loose rather than exploring all possibilities in a rush to avoid liability.
  4. With respect to the ADA, certainly want to be thinking in terms of direct threat per this blog entry. You also want to be thinking in terms of essential eligibility requirements and whether the student can meet the essential eligibility requirements with or without reasonable modifications.
  5. I received my J.D. degree from the University of San Diego back in 1985. Even then, California was a very policy driven State. It’s hard to believe that when I entered law school and took torts, Tarasoff was only six years old. Since then, that case is one of the all-time classics and contains a principal that is just about everywhere. This decision is a logical extension of that case. It also reflects how society has evolved since 1976 (particularly after 20 years of school shootings ), and what society perceives of the psychological makeup of the college student today. The expectations of the mindset of today’s entering college student and their parents have certainly changed. It will be very interesting to see whether other States adopt this decision. I also found it interesting that even in 2018, the highest court of a State was being explicitly policy driven. That isn’t the case in every State.
  6. The court is absolutely right that the bulwark for persons with disabilities with respect to how colleges and universities treat them, especially after this decision, is going to be the ADA. Remember, direct threat must be based upon the best available and objective scientific evidence after an individualized analysis.
  7. As a preventive law matter, colleges and universities would do well to assume that this case could very well become the law in their jurisdiction for a couple of different reasons. First, California has always led the way with respect to tort law principles. In fact, what constitutes basic principles of tort law all pretty much started in California. Second, the decision does a nice job of encapsulating just where society sees the mindset of both the person entering college and their parents. So, colleges and universities will want to develop comprehensive systems for dealing with the mental health of its students and then ensure that their rights under the ADA are also respected so that students with mental health issues are not pushed out the door when that is not necessary.
  8. Just how far the duty extends outside the classroom is an open question and will be something for each college and university to assess.

2 Responses to Colleges and Universities Duty to Warn Obligations; The ADA is Lurking

Good blog as usual. It would seem given its sophisticated program UCLA would be particularly well placed to make and defend a finding that a student was a direct threat. I wonder if a duty to warn standard is identical to the direct threat standard; that is, if there is a duty to warn then there is a direct threat and vice versa.

As discussed above, the California Supreme Court remanded the matter back to the second Appellate District. On December 3, 2018, the second Appellate District held that the standard of care was reasonable due care under the circumstances.

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