In light of Virginia Tech, I feel more exploration is warranted concerning the disclosure of information regarding a student’s potential desire to harm others, when obtained through the treatment of a psychiatric disorder. The book seems to take a vague position on duty to warn versus the protection offered by FERPA. So, another hypothetical: a University Psychologist in the Counseling Center of a public institution learns in a therapy session with a student, that he has had specific thoughts about causing substantial physical harm to his roommate that if acted upon could prove fatal. It is the estimation of the Psychologist that they are actionable fantasies and it cannot be ruled out that the student would act on them. The Dean of Students and Housing staff are notified and together they decide to move the roommate – a new Housing Coordinator tells the roommate that he is being moved because his roommate made threatening remarks about him to a University official and that the student in question might be “unstable.” This information spread through campus and the student sues the institution and Psychologist for defamation and violation of his FERPA protection. What do you think would be the outcome of this case?
Watch this 8-minute video on YouTube about freedom of speech on campus (http://www.youtube.com/watch?v=Ccym0wLem-I ) and provide reactions to: the behavior of the students, behavior of administrators, and the use of public forums. Also, consider a scenario where the pamphlets promoting guns also expressed hatred for certain groups of people such as homosexuals, Muslims, or Democrats – would that change the University’s interest?
FERPA ? Currently violations of FERPA are not personally actionable - also, in your example I do not believe that FERPA would be the guiding principle (see note below for psychologist's information) for a suit against the "institution" or the psychologist. Stupidity on behalf of the Housing Coordinator maybe, but not a FERPA violation in my opinion. Think of the headlines - "Roommate killed, Institution had Prior Knowledge but Cites Privacy Law" or "Crazy Person Sues for Violation of Privacy Because His Desire to Kill Roommate was Shared with Roommate" - I will take the second headline and any sanction anyday.
Defamation? - probably not - as "truth" is the defense for an action for defamation. The Housing Coordinator might not have used good judgement in sharing all that information, but it was truthful.
A psychologist has a duty to warn if (1) a specific and definable target is indicated (including self) and (2)the threat is believeable and explicit. Motive will also be considered - therefore, in your example the psychologist should also be protected.
Great, great posts Jennifer! I'm going with the exotic dancer...
What is foremost in my mind is the fact that this is a PUBLIC women's college. If this were a private institution, I believe that the outcome would almost certainly be different.
The student can claim that she has a right as a citizen to engage in exotic dancing. She is not dancing as a representative (student) of the institution, but simply as a private citizen and it is within her constitutional rights to do so. If you consider this from a student academic freedom perspective, this is her freedom of expression.
The institution will claim that all students are required to adhere to the Student Code of Conduct - "act at all times with womanly character and the gentility of a lady." Exotic dancing they will claim is obviously outside of the Student Code of Conduct. As such, this student has breached contract with the institution and the institution will stand by their decision to suspend her until such time that she resigns from exotic dancing.
As for the litigation, I am going to say that the court will rule in the student's favor and that she will be allowed to remain at the institution and stay working as an exotic dancer. I simply don't see how a public institution can force students to abide by what they deem to be the appropriate behavior. Again, if this were a private institution, my opinions would be different.
I'm anxious to see how this ended up - will you tell us in class on Wednesday?
Misty, it's a true hypothetical so I don't have specific case law to point to - I made it up! But I thought the circumstances could elicit arguments on both sides of the case. I'll wait on a few more responses and then I'll present my thoughts for consideration.
Ken, good rationale for your positions and you definitely know your FERPA! But I'm thinking that the defamation claim by the student has a little more bite because the Housing Coordinator stated that the student was "unstable" - which is a subjective term with socially negative connotations that can do harm to a person's reputation. It is a question of fact that the student made threats, so I agree that defamation probably won't work there, but the Housing Coordinator's diagnosis of "unstable" might create an actionable claim. I know defamation is not addressed in this chapter, but I thought it might be an interesting twist to discuss. :)
Thanks for these great scenarios, Jennifer! I strongly concur with Ken’s posting; I’d also pick the second headline over the first (and hope never to have either…!). One thing I’ve definitely learned over the years is that usually there are many sides to every story. In this case, we don’t know exactly what the Housing Coordinator stated to the roommate, nor how the information was stated. Perhaps the roommate did not wish to go through the hassle of making a room change mid-semester, and stated that he didn’t want to leave his roommate who was just going through a rough time. The Housing Coordinator then might have been faced with providing the information in order to insure (as much as possible) the safety of the roommate. Given the seriousness of the situation, I believe that the 2008 U.S. DOE Final Rule would allow the institution (via the Housing Coordinator)to provide information in an emergency in order to protect the safety of the roommate: “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.” (Page 74864, according to Pavela)
To easy to respond "it depends" (although it does) - perhaps the bigger question to consider in the hypothetical situation is why there was a need to move the roommate in the first place - the isssue is the student who has made threats against another (that were confirmed and believeable by the psychologist) - in the state of Florida we would Baker Act (FL Mental Health Act 1971)the student - this involuntary commitment can last up to 72 hours. Many other states have similar regulations as well. This will hopefully provide the necessary initial treatment to determine the legitimacy of the threat, while providing the institution some time to figure out a course of action as well. Many institutions have "clearance" procedures for students following a hospitalization. If interested - Saint Leo policy is under C6. Hospitalization - http://www.saintleo.edu/Campus-Life/Code-of-Conduct
Not comfortable with that answer - then move the student making the threats - no need to involve the roommate anyway to minimize the number of "knowing" individuals is best) - but the question becomes - is the threat only able to be realized because of housing - why wouldn't the student just find their roommate on campus and harm them - the issue is not the living arrangement the issue is the threat. As a practitioner - I would have the student Baker Acted (and of course, the student would probably sue.) :-)
I have to agree with Ken - with the psychologist having a duty to warn and with the university having the duty to protect the roommate, FERPA has not been violated, and therefore a violation of FERPA would not be warranted. I do think that as far as defamation is concerned, though, we need to consider what exactly was said and who it was said to. If what was said was exactly as stated, then I don't believe the psychologist should be sued as that is not what the psychologist said - those words came from the Housing Coordinator. In that case, I think it's important to consider, though, if the university would be named in a defamation suit as the Housing Coordinator was acting on behalf of the university when he/she said that.
Hey Jennifer: You have posed some great hypotheticals, which for me, also remind me of the Socratic method Thank God those days are over! I am going to take a stab at hypothetical B.
I agree with both you and Ken. I think the student could definitely make an argument for slander in Florida. According to Florida Statutes, defamation is a defendant’s oral (slander) publication of a statement to a third party that, when considered alone, without innuendo: (1) Tends to subject persons to hatred, distrust, ridicule, contempt, or disgrace; (2) Tends to injure a person in a trade or profession; or (3) Attributes to a person either conduct, characteristics, or conditions incompatible with the proper exercise of a lawful business, trade, profession or office. In slander per se actions, the defamatory statement is actionable on its face and damages are presumed.
Thus, the new Housing Coordinator’s verbal publication that his former roommate was “unstable” would probably qualify under prong #1.
However, as we all know, the law is not black and white and embedded in the law are defenses. In Florida, truth is a complete defense to defamation claims. See Rosenberg v. American Bowling Congress, 589 F. Supp. 547, 551. In addition, statements of pure opinion based on known facts do not give rise to defamation claims. See Miami Child’s World, Inc. v. Sunbeam Television Corp., 669 So. 2d 336, 336 (Fla. 3d DCA 1996). Accordingly, I don’t know if the student would prevail.
Interestingly, in Iowa, public and private figures can now sue for defamation by implication, even if the statements in question are true. The court adopted this new standard “defamation by implication” when an editor reported half truths regarding a reporter who previously resigned. The court reasoned that although most of the information cited regarding the reporter was true, they became libelous when the plaintiff deemed them libelous. Talk about a slippery slope! I guess it’s a good thing we don’t live in Iowa
As for FERPA, I don’t think the fact pattern meets the threshold of a FERPA violation as well.
I agree with Ken about questioning removing the roommate. That was my first question when I was reading the scenario. It seems they would monitor or recommend to remove the student who was suicidal rather than the roommate dependent on the imminent danger. It is my understanding as well that FERPA only applies to non-medical, non-emergency student issues and therefore does not conflict with duty to harm.
The Youtube Video concerning FIRE and the Freedom of Speech scenarios was appropriately illustrative. What a sticky spot for administrators to find themselves. At a public university, you can't decide what material the students can and cannot distibute outside of the classroom. We can't stop the preachers outside of Cooper from making disparaging remarks, and we can't control where freedom of speech occurs by denoting "Free speech Zones." And we shouldn't! I think the students were in the right to distribute their materials on concealed weapons, whether or not the administration agrees with their position.
I really had to think about the second part of the question addressing hate speech towards specific populations. I am certain that the administration would want to react immediately, but, reading the court cases in the text, I don't think that they can on the basis of the comments alone. If it is paired with an action, then the administration can definitely take a stand. I'd like to hear other thoughts on this topic!
On the topic of FERPA and student safety, what would be your lawful obligation/reaction if a student sends you private communication through Facebook that they intend to harm themselves?
As we get more creative with the means of communicating with our students, so should our preperation for such events. This actually happened!
This is a case where there is a clearly written rule at the university that stated that the ladies of the school must conduct themselves in a ladylike fashion. There is the issue of civil rights though. I think that there was a violation of her civil rights and her ability to make a living. The university has its rules, but the issue of the young lady's civil rights allows her the right to seek justice from a higher court jurisdiction. This is especially true considering that the issue is not one of an academic nature. Therefore, there would be room for an appeal.
As a tribute to my law school days, please allow me to pose a Hypothetical: Public women’s college in the South has a provision in the Code of Conduct requiring that each student “act at all times with womanly character and the gentility of a lady,” reflecting values in the institution’s mission. One of their students is discovered, because of an exposé written in the local newspaper, to have a part-time job as an exotic dancer and she is approached by University officials and asked to resign from that job, but the student refuses. After an Administrative investigation and hearing by the Dean of Students’ office where procedures are followed to the letter, the student is suspended indefinitely pending her resignation of the part-time job. The student sues the institution. In your estimation, what would be her best claim, what would the college claim as their defense, and what would be the result of litigation?
ReplyDeleteIn light of Virginia Tech, I feel more exploration is warranted concerning the disclosure of information regarding a student’s potential desire to harm others, when obtained through the treatment of a psychiatric disorder. The book seems to take a vague position on duty to warn versus the protection offered by FERPA. So, another hypothetical: a University Psychologist in the Counseling Center of a public institution learns in a therapy session with a student, that he has had specific thoughts about causing substantial physical harm to his roommate that if acted upon could prove fatal. It is the estimation of the Psychologist that they are actionable fantasies and it cannot be ruled out that the student would act on them. The Dean of Students and Housing staff are notified and together they decide to move the roommate – a new Housing Coordinator tells the roommate that he is being moved because his roommate made threatening remarks about him to a University official and that the student in question might be “unstable.” This information spread through campus and the student sues the institution and Psychologist for defamation and violation of his FERPA protection. What do you think would be the outcome of this case?
ReplyDeleteWatch this 8-minute video on YouTube about freedom of speech on campus (http://www.youtube.com/watch?v=Ccym0wLem-I ) and provide reactions to: the behavior of the students, behavior of administrators, and the use of public forums. Also, consider a scenario where the pamphlets promoting guns also expressed hatred for certain groups of people such as homosexuals, Muslims, or Democrats – would that change the University’s interest?
ReplyDeleteFERPA ?
ReplyDeleteCurrently violations of FERPA are not personally actionable - also, in your example I do not believe that FERPA would be the guiding principle (see note below for psychologist's information) for a suit against the "institution" or the psychologist. Stupidity on behalf of the Housing Coordinator maybe, but not a FERPA violation in my opinion. Think of the headlines - "Roommate killed, Institution had Prior Knowledge but Cites Privacy Law" or "Crazy Person Sues for Violation of Privacy Because His Desire to Kill Roommate was Shared with Roommate" - I will take the second headline and any sanction anyday.
Defamation? - probably not - as "truth" is the defense for an action for defamation. The Housing Coordinator might not have used good judgement in sharing all that information, but it was truthful.
A psychologist has a duty to warn if (1) a specific and definable target is indicated (including self) and (2)the threat is believeable and explicit. Motive will also be considered - therefore, in your example the psychologist should also be protected.
Great, great posts Jennifer! I'm going with the exotic dancer...
ReplyDeleteWhat is foremost in my mind is the fact that this is a PUBLIC women's college. If this were a private institution, I believe that the outcome would almost certainly be different.
The student can claim that she has a right as a citizen to engage in exotic dancing. She is not dancing as a representative (student) of the institution, but simply as a private citizen and it is within her constitutional rights to do so. If you consider this from a student academic freedom perspective, this is her freedom of expression.
The institution will claim that all students are required to adhere to the Student Code of Conduct - "act at all times with womanly character and the gentility of a lady." Exotic dancing they will claim is obviously outside of the Student Code of Conduct. As such, this student has breached contract with the institution and the institution will stand by their decision to suspend her until such time that she resigns from exotic dancing.
As for the litigation, I am going to say that the court will rule in the student's favor and that she will be allowed to remain at the institution and stay working as an exotic dancer. I simply don't see how a public institution can force students to abide by what they deem to be the appropriate behavior. Again, if this were a private institution, my opinions would be different.
I'm anxious to see how this ended up - will you tell us in class on Wednesday?
Misty, it's a true hypothetical so I don't have specific case law to point to - I made it up! But I thought the circumstances could elicit arguments on both sides of the case. I'll wait on a few more responses and then I'll present my thoughts for consideration.
ReplyDeleteKen, good rationale for your positions and you definitely know your FERPA! But I'm thinking that the defamation claim by the student has a little more bite because the Housing Coordinator stated that the student was "unstable" - which is a subjective term with socially negative connotations that can do harm to a person's reputation. It is a question of fact that the student made threats, so I agree that defamation probably won't work there, but the Housing Coordinator's diagnosis of "unstable" might create an actionable claim. I know defamation is not addressed in this chapter, but I thought it might be an interesting twist to discuss. :)
ReplyDeleteThanks for these great scenarios, Jennifer! I strongly concur with Ken’s posting; I’d also pick the second headline over the first (and hope never to have either…!). One thing I’ve definitely learned over the years is that usually there are many sides to every story. In this case, we don’t know exactly what the Housing Coordinator stated to the roommate, nor how the information was stated. Perhaps the roommate did not wish to go through the hassle of making a room change mid-semester, and stated that he didn’t want to leave his roommate who was just going through a rough time. The Housing Coordinator then might have been faced with providing the information in order to insure (as much as possible) the safety of the roommate. Given the seriousness of the situation, I believe that the 2008 U.S. DOE Final Rule would allow the institution (via the Housing Coordinator)to provide information in an emergency in order to protect the safety of the roommate: “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.” (Page 74864, according to Pavela)
ReplyDeleteTo easy to respond "it depends" (although it does) - perhaps the bigger question to consider in the hypothetical situation is why there was a need to move the roommate in the first place - the isssue is the student who has made threats against another (that were confirmed and believeable by the psychologist) - in the state of Florida we would Baker Act (FL Mental Health Act 1971)the student - this involuntary commitment can last up to 72 hours. Many other states have similar regulations as well. This will hopefully provide the necessary initial treatment to determine the legitimacy of the threat, while providing the institution some time to figure out a course of action as well. Many institutions have "clearance" procedures for students following a hospitalization. If interested - Saint Leo policy is under C6. Hospitalization - http://www.saintleo.edu/Campus-Life/Code-of-Conduct
ReplyDeleteNot comfortable with that answer - then move the student making the threats - no need to involve the roommate anyway to minimize the number of "knowing" individuals is best) - but the question becomes - is the threat only able to be realized because of housing - why wouldn't the student just find their roommate on campus and harm them - the issue is not the living arrangement the issue is the threat. As a practitioner - I would have the student Baker Acted (and of course, the student would probably sue.) :-)
I have to agree with Ken - with the psychologist having a duty to warn and with the university having the duty to protect the roommate, FERPA has not been violated, and therefore a violation of FERPA would not be warranted. I do think that as far as defamation is concerned, though, we need to consider what exactly was said and who it was said to. If what was said was exactly as stated, then I don't believe the psychologist should be sued as that is not what the psychologist said - those words came from the Housing Coordinator. In that case, I think it's important to consider, though, if the university would be named in a defamation suit as the Housing Coordinator was acting on behalf of the university when he/she said that.
ReplyDeleteHey Jennifer:
ReplyDeleteYou have posed some great hypotheticals, which for me, also remind me of the Socratic method Thank God those days are over! I am going to take a stab at hypothetical B.
I agree with both you and Ken. I think the student could definitely make an argument for slander in Florida. According to Florida Statutes, defamation is a defendant’s oral (slander) publication of a statement to a third party that, when considered alone, without innuendo:
(1) Tends to subject persons to hatred, distrust, ridicule, contempt, or disgrace;
(2) Tends to injure a person in a trade or profession; or
(3) Attributes to a person either conduct, characteristics, or conditions incompatible with the proper exercise of a lawful business, trade, profession or office.
In slander per se actions, the defamatory statement is actionable on its face and damages are presumed.
Thus, the new Housing Coordinator’s verbal publication that his former roommate was “unstable” would probably qualify under prong #1.
However, as we all know, the law is not black and white and embedded in the law are defenses. In Florida, truth is a complete defense to defamation claims. See Rosenberg v. American Bowling Congress, 589 F. Supp. 547, 551. In addition, statements of pure opinion based on known facts do not give rise to defamation claims. See Miami Child’s World, Inc. v. Sunbeam Television Corp., 669 So. 2d 336, 336 (Fla. 3d DCA 1996). Accordingly, I don’t know if the student would prevail.
Interestingly, in Iowa, public and private figures can now sue for defamation by implication, even if the statements in question are true. The court adopted this new standard “defamation by implication” when an editor reported half truths regarding a reporter who previously resigned. The court reasoned that although most of the information cited regarding the reporter was true, they became libelous when the plaintiff deemed them libelous. Talk about a slippery slope! I guess it’s a good thing we don’t live in Iowa
As for FERPA, I don’t think the fact pattern meets the threshold of a FERPA violation as well.
I agree with Ken about questioning removing the roommate. That was my first question when I was reading the scenario. It seems they would monitor or recommend to remove the student who was suicidal rather than the roommate dependent on the imminent danger. It is my understanding as well that FERPA only applies to non-medical, non-emergency student issues and therefore does not conflict with duty to harm.
ReplyDeleteThe Youtube Video concerning FIRE and the Freedom of Speech scenarios was appropriately illustrative. What a sticky spot for administrators to find themselves. At a public university, you can't decide what material the students can and cannot distibute outside of the classroom. We can't stop the preachers outside of Cooper from making disparaging remarks, and we can't control where freedom of speech occurs by denoting "Free speech Zones." And we shouldn't! I think the students were in the right to distribute their materials on concealed weapons, whether or not the administration agrees with their position.
ReplyDeleteI really had to think about the second part of the question addressing hate speech towards specific populations. I am certain that the administration would want to react immediately, but, reading the court cases in the text, I don't think that they can on the basis of the comments alone. If it is paired with an action, then the administration can definitely take a stand. I'd like to hear other thoughts on this topic!
On the topic of FERPA and student safety, what would be your lawful obligation/reaction if a student sends you private communication through Facebook that they intend to harm themselves?
ReplyDeleteAs we get more creative with the means of communicating with our students, so should our preperation for such events. This actually happened!
This is a case where there is a clearly written rule at the university that stated that the ladies of the school must conduct themselves in a ladylike fashion. There is the issue of civil rights though. I think that there was a violation of her civil rights and her ability to make a living. The university has its rules, but the issue of the young lady's civil rights allows her the right to seek justice from a higher court jurisdiction. This is especially true considering that the issue is not one of an academic nature. Therefore, there would be room for an appeal.
ReplyDelete