Revisit Current Laws and Regulations

By Walter Olson
The Manhattan Institute

According to ABC News, writing professor Lucinda Roy was one who got a close look at the future killer's disturbed personality: "She said she notified authorities about Cho, but said she was told that there would be too many legal hurdles to intervene."

What were those legal hurdles? Were I in Congress, I'd want to know. Did any of them arise from the Buckley Amendment, which forbids universities from sharing many sorts of information about students, even with the students' own families? In a publicized recent case, a Pennsylvania college came under fire after a 20-year-old student confided in counselors about his state of psychological desperation, and then went on to commit suicide. The parents sued, saying they might have helped prevent his death had they been told about the warning signs, but the college prevailed: the federal rules did not authorize it to contact the family until matters had reached an "emergency".

Or was the problem other well-meaning laws aimed at advancing due process and other fine goals? Did the Health Insurance Portability and Accountability Act (HIPAA), the medical privacy law, work to ensure that those who knew of Cho's medico-psychiatric history would never compare notes with those trying to assess the seriousness of his reported stalking behavior?

Perhaps the answers lie elsewhere. But as pressure groups seek to heap new regulations and legal burdens on universities, let's not forget to revisit the ones already there.

Walter Olson is senior fellow at the Manhattan Institute and runs Overlawyered.com.

Posted by Michael Corones |  April 18, 2007; 2:55 PM ET
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Comments

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I have worked in University Student Affairs for over 15 years. Your commentary about the constraints of Federal Law is SO on the point. The counselors, nurses, and MDs are so constrained by HIPPA and FERPA that they cannot even let those of us in Student Affairs know of a student who clearly does not belong in Housing much less classes.

Congress MUST change the laws to allow collaboration and sharing of student's mental health in order for all of us to do our jobs in protecting other students, staff,and faculty.

Posted by: Gene Kahane | April 18, 2007 10:11 PM

Even if HIPPA and FERPA allowed the communication of health information among different segments of the administration, it would not have mattered one little bit. Zip, nada, nothing.

The only things known where that he was depressed, that he wrote weird fiction, didn't communicate and was "spooky-scary."

If the university had tried to action against him because of the depression, they would have run smack into the Federal Americans with Disabilities Act plus the VA statute forbidding any university from expelling a student because of mental health problems or a suicidal thoughts or attempt.

Unless and until he did something dangerous to others, they couldn't touch him.

Any adult has the right to refuse treatment per the US S. Ct. He would not have to comply with treatment and they couldn't expel him beacuse of his emotional problems if he was not a danger to others. (Note: most states would allow a suspension if a danger to himself and now in VA even that is very iffy.)

Political correctness dictates that even those on medications for extreme psychotic behavior are to be integrated into society - and that means universities if they can get accepted based on their grades and do the work.

(Oh, and that college in Pa she mentions? It is Allegheny College in Meadville Pa which is ranked among the premier liberal arts colleges in the country. Of course they won the lawsuit - they haven't lost a lawsuit since they were founded over 195 years ago. I should know - I'm an alumni of many decades who then went to law school.)

Posted by: AnnS | April 18, 2007 11:21 PM

One reason for HIPPA is so your employer can't know your health status and penalize you for it by denying you coverage. If we had universal coverage, we would need HIPPA less.

Posted by: meewv | April 18, 2007 11:56 PM

I worked 40 years in University student affairs and agree with the comments that federal restrictions make it very difficulty to deal effectively with seriously disturbed students. (There are students out there year after year with symptoms not unlike Cho's--fortunately very few act out against others--none gravely in my direct experience.) Technically without a student release, counseling personnel are not allowed even to confirm the student is a client or is keeping appointments. Many times, in the middle of the night,residence hall staff finally convinced a student to check themselves into a local hospital psych ward only to learn the attending psychiatrist had discharged him/her in the morning.(again not unlike the rapid Cho mental hospital discharge)

Posted by: Don Buckner | April 19, 2007 01:13 AM

I find it ironic that the Patriot Act allows all kinds of imminent danger exceptions to normal consititutional rights to defend us from the potential violence of terrorists and yet we remain true to our usual principles when it comes to the risks from a person who we perceive to be a threat but does not meet the current definition for a commitment to treatment. I do not know what the proper balance is between liberty and safety, but maybe in the case of students who continue to attend a university the school put weekly mandated discussions with an assistant dean of students as a condition for continued enrollment in the University. That way the school adds one additional measure of monitoring and protection. It may not stop such events, but they could judge whether or not the individual is getting worse.

Posted by: swlewis | April 19, 2007 04:47 AM

I am a healthcare provider in Virginia and have found myself in situations with my patients who needed emergency mental health care hospitalizations unable to find a provider. The state of Virginia made deep cuts in the mental health care system in our state. Our state mental hospitals no longer have admission departments and furthermore only convicted felons can get in to the state mental hosptials. The bed availabilty through other hospitals is nil. Talking with the Community Services Board who in our state is often the first line of help in emergency situations....through up their hands and walk away. This problem is deeper than meets the eye and does begin with HIPPA laws and other brick walls that were made with good intentions but somewhere in the process, we lost our common sense.

Posted by: sharon cu | April 19, 2007 05:26 AM

If we allowed schools to ignore a student's right to privacy and to remove student's from campus simply because they were depressed and tried to get mental health counseling, then most troubled students would stop trying to get help and would try to hide their pain. This would only make their condition worse and make them more likely to harm themselves and others. Laws that protect a person's medical records have more than good intentions, they have good results.

Posted by: anthony | April 19, 2007 07:17 AM

While calls for stricter gun control and mental health laws that allow more leeway for hospitalizing individuals with high violence potential will be rightly debated, it seems that this tragedy unfolded (like so many recent tragedies) as a failure of intelligence. Why did the campus police not have a readily available list of individuals reported and evaluated for violence potential? Even if the assassin had purchased the weapons (having left the question about mental illness blank), even if the first two shootings could not have been prevented, surely with such a list there would have been a chance of preventing the second shooting rampage. After the first shooting, campus police could have followed the likely domestic dispute lead, but also the police could have sent out officers to track the whereabouts of students on the violence potential lists. Yes, such a list is fraught with possible civil rights violations. But if the list is only used when specific threats (such as the earlier campus bomb threats) are made or events occur (as the first two shootings) than a greater calamity could be averted. I believe such an intelligence procedure is worth considering.

Posted by: David in NYC | April 19, 2007 09:13 AM

Surely a person this ill was showing signs of disturbance in high school. I'd love to know what warning signs faculty and students at Westfield High School saw. I wish those records could be opened. I know this will never happen, but as the mother of a son at the verge of adolescence, this is a story that needs to be told.

Posted by: S. H. | April 19, 2007 09:29 AM

The pattern of behaviors exhibited by this perpetrator prior to the murders, as thus far reported in the mass media, is in fact extremely uncommon even among emotionally troubled students and the facts, taken together, were certainly sufficient for a number of protective actions that were inexplicably never taken. First, it is extremely uncommon for students in a class to report such fear of another student in their class that they refuse to attend that class. Second, it is extremely uncommon for an instructor to demand removal of a student from her class for such reasons. Third, it is extremely uncommon for students to provoke multiple, independent reports of stalking to police. Fourth, it is very unusual to see such extremely graphic, violent, cynical creative writing. Fifth, it is highly unusual for a student's roommates to report the student's suicidal statements. Sixth, it is unusual for a student to stop attending a class. A number of actions could and should have been taken: (1) Suspension or expulsion of the student for the overt threatening behaviors causing the fears and concerns raised independently by a large number of other students and faculty; (2) Documenting and reporting his history of mental illness to the FBI's gun control data center in Charleston, WV; (3) Notifying the campus community of the double murders and missing perpetrator and weapon immediately after their discovery, so that members of the community could rely on their own common sense in choosing a course of action - a common sense that very likely would have kept them more vigilant that morning at the very least; (4) Locking down the campus immediately after the double murders were reported, rather than trying to maintain the appearance that everything was normal that day.

Posted by: Craig Morris | April 19, 2007 11:56 AM

Rather incredible that the media was able to discover Chos psychological background in two days, what a highly regarded University was unable to identify in almost four years. Did anyone interview the Candidate before he was accepted as a student?

Posted by: Jack | April 20, 2007 03:27 AM

The use to which accusations of mental instability are put needs to be considered. It is one thing to take away someone's liberty or his access to higher education and another to take away his right to purchase a rapid fire quick reloading weapon. The law already prohibits gun dealers from selling weapons to mentally disturbed individuals. But it gives the dealers nothing to help them make that judgment.

Maybe some constitutional scholars, psychotherapists, and ethicists could work together to find an acceptable way to create a list of individuals of suspected mental instability or antisocial tendencies who should be denied the ability to purchase explosives' components and the class of firearms used in massacres.

Or, perhaps before someone is allowed to legally buy rapid fire and quickly reloaded weapons, they should at least have to present affidavits from a couple of people which say how they know the purchaser and that they know the person to be of sound mind. From the interviews of Tech students, I doubt Cho could have found anyone who knew him who would have signed such documents.

Posted by: BTPost | April 20, 2007 11:17 AM

I have read the argument elsewhere that even if he had been denied the ability to legally purchase weapons, he could have gotten them illegally. But that supposes that he has criminal contacts, which doesn't seem to me to be a likely situation for someone with no criminal record.

Posted by: BTPost | April 20, 2007 11:27 AM

There is no need for any regulation. The control over an individual's medical records should be a matter of agreement between himself and his medical provider. In other words, as is the case with a will or a financial agreement, who gains access the records should be a matter of contract.

Olson, who sometimes poses as a defender of private property and liberty, should recognize this, but his thinking is muddy and collectivist. He apparently thinks that the government should be able to access private documents as he thinks it needs to. It is folly to think that either psychiatrists or the government can predict who will commit crimes. And it is a dangerous intrusion into the liberty of everyone to replace private control over medical records with a new regulatory scheme in which predicting and preventing violence demolishes privacy.

Olson ought to know that predicating laws and regulations on extreme and unusual events, no matter how tragic, is foolhardy.

Posted by: Nicolas Martin | June 16, 2007 03:02 PM

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