Anne Lundquist and Allan Shackelford New York State Disability Services Council Spring Meeting June 16, 2009

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 Women’s Studies. Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

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) Lundquist & Shackelford

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. Lundquist & Shackelford

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 Lundquist & Shackelford

9. Legal Liability: Historical Overview Lundquist & Shackelford

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. Lundquist & Shackelford

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 University’s dismissal of a student because she was not a “typical Syracuse girl.” Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

14. Today’s 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. Lundquist & Shackelford

15. Changing Legal Environment Shifts Institution’s 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. Lundquist & Shackelford

16. Changing Legal Environment Shifts Institution’s 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? Lundquist & Shackelford

17. Recent Incidents and Tragedies in Higher Education • Texas A&M • MIT • Ferrum • Eastern Michigan • Virginia Tech • Duke Lundquist & Shackelford

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 Lundquist & Shackelford

19. Essential Legal Principles • Duty • Foreseeable Danger • Reasonable Care Lundquist & Shackelford

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

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). Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

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 Lundquist & Shackelford

27. Respondents Position Title Supervisor Title 67.2% of respondents supervise others Lundquist & Shackelford

28. Primary Job Functions Lundquist & Shackelford

29. Compliance Lundquist & Shackelford

30. Effectiveness * 1 – lowest, 5 = highest Lundquist & Shackelford

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 Lundquist & Shackelford

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 “don’t 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 Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

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

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. Lundquist & Shackelford

38. How We Have Come to Define“Institutional Risk Management” The deliberative, strategic, systemic, holistic, integrated, proactive, ongoing process of identifying , anticipating, categorizing, assessing, and analyzing the institution’s 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 institution’s human, physical and intellectual assets and its mission, strategic objectives and reputation. “The President as Chief Risk Manager,” Lundquist & Shackelford, pending, 2009 Lundquist & Shackelford

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. Lundquist & Shackelford

40. Risk Management Intersections Lundquist & Shackelford Adapted from University of Nebraska’s 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 student’s 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. Lundquist & Shackelford

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 Lundquist & 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. Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

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, Cho’s English professors communicated with Cho, the department chair, various administrators and university police about Cho’s writings and behavior. Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford

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. Lundquist & Shackelford