In the wake of the shooting at Virginia Tech, colleges and universities are re-examining the legal constraints of dealing with mental health crises on-campus.
Under federal privacy laws, colleges are restricted from disclosing mental health information, even to parents. They are also barred from screening students for mental health problems, and from dismissing students, even if school officials believe it is in the student's best interests.
Several high-profile suicide cases in recent years have only served to tighten restrictions. The primary laws at issue are the Family Educational Rights and Privacy Act, the Health Insurance Portability and Accountability Act and, in some cases, the Americans with Disabilities Act of 1990.
These laws were designed to protect students, including those that might be mentally troubled. But legal experts say the reality is that the laws may prevent school officials from taking necessary action, even when the warning signs are clear.
"When these laws serve to tie the hands of school counselors and administrators from helping those students most in need," says Dana Fleming, a legal expert on higher education from the Boston-based firm of Nelson, Kinder, Mosseau, & Saturley, "the purpose of the laws have failed."
Stephen Trachtenberg, president of George Washington University, knows first-hand the "Catch-22" colleges face in dealing with mentally ill students. His school was sued after suspending a student who was deemed a threat to himself and others. The student argued that the school had violated the Disabilities Act, which protects against discrimination based on mental illness.
The university settled out of court last year. But Trachtenberg says the school's responsibility to students must continue to outweigh the fear of litigation.
"Given the choice between doing the right thing and having a lawsuit in which you have to settle the case, I'd rather do that than the wrong thing," he says. "To some extent, we all have to follow our own best angels."
Fleming says schools aren't necessarily deciding how to address a mental health crisis on campus on whether or not they face a lawsuit, however, she adds, "What the current system does create is a Catch-22 in which no matter what decision, no matter how good their intentions may be, they inevitably face a lawsuit at the end of it."
If the school intervenes, as in the case at GW, they could be sued. But if they don't do enough, courts have also found colleges could be liable.
Setting a legal precedent, a judge ruled in 2005 that the parents of a student who killed herself at MIT could proceed with their claims against the university. The parents argue that school officials should have done more to prevent their daughter's suicide.
Fleming says, "I think the question now becomes: 'Have we gone so far toward one end of the spectrum in terms of protecting students' privacy rights that we now protect those rights to the point of not protecting students' best interests?' And when a student is in crisis, there may be benefits to sharing that information with their family, friends and other people that can provide a support network to them."
In its statement, the family of Virginia Tech gunman Seung-Hui Cho said they never could have "envisioned he was capable of such violence."
Under current laws, the university did not have the right to tell them that he was stalking students and writing disturbing papers.