Carmen MaurerAssociate General Counsel

University of Nebraska

Legal Issues:Campus Threat Assessments

January 21, 2011

Are all duties equal?

• Who owes you the greater duty?

Your neighbor: You run across the lawn, knock on the neighbor’s back door, and ask to borrow an egg. In route, you slip on the ice on your neighbor’s back steps and crack your ankle, or…

The Grocery Store: You go to the store to buy eggs, slip at the icy entrance and crack your ankle.

Risk Management and the Commercialization of Higher Education

Are colleges and universities more like the neighbor….or more like the Grocery Store?

Would your answer be different in 1960 than it is today?

We market the safety of our campuses to parents and students, which is both honest and necessary—

But then the law requires us to meet the reasonable expectations we’ve set for ourselves—and our parent/student customers.

Do lawyers have to be involved in everything?

Even marketing? Don’t create impossible expectations that are hard to defend.

From a legal perspective, taking no action, having no threat assessment function, no response program is the worst case scenario.

Threat Assessment Teams

We hope they work when a threat is presented…

But on another level, they also provide a legal defense after the difficulty of the actual event has passed.

Threat Assessment Teams are different from:

• ADA Accommodation Evaluation Office

• Human Resources

• Health Center

Threat Assessment’s Charge

• Provide a process to observe, evaluate, and address BEHAVIORS

• On a case-by-case, fact-specific basis

• For campus safety concerns only

• Simple in concept; tough in application

•Counseling and Treatment is supported,

not mandated

vs.

• The right to:

Express oneself

To make personal medical decisions

Threat Assessment--It’s all about….

•Behaviors meetings standards;

•Not assumptions about health or its treatment

Threat Assessment: Focuses on Safety

•Notify Threat Assessment Team when observed BEHAVIOR causes concern.

•Not concerned (at this moment) with student success or accommodation or discipline—safety is foremost.

•SAFETY assessment is completed and steps taken (or not depending on the assessment) to address the SAFETY of the campus.

•Different kind of assessment from what ADA/SSD conducts or the role that disciplinary processes play.

•It’s when these distinct roles get intertwined, that civil rights and ADA are most likely to be violated.

Effective threat assessment is completely dependent upon good communication, using information resources throughout the campus and community.

What about FERPA?

•Board of Regents Policy 5.10 found at www.nebraska.edu

• A school official has a “legitimate educational interest” if the official needs to review an education record in order to fulfill his or her professional responsibilities for the University.

• In case of an emergency, if the knowledge of the protected information is necessary to protect the health or safety of students or other persons.

• A request from an official of another school, school system, or institution of higher education in which a student seeks or intends to enroll; provided however, that the annual notice required by FERPA must include a statement that the university forwards education records to other agencies or institutions, in which the student seeks or intends to enroll, upon request of the agency or institution.

Reporting the observation of a behavior does not involve a FERPA record.

Cmaurer@nebraska.edu

(402)472-1201

Case Study

(You didn’t know there would be homework.)

Stew Dent is 32 years old and is considered a second semester sophomore. He transferred to Wotswith U this Fall, after attending three other schools. He declared Art History as his major. His personal hygiene is poor, and he’s begun to wear a beret. He appears to be unusually fond of his beret and becomes confrontational when one of his classmates says, “Nice hat.” In a separate incident, when a food court employee asks him “What kind of hat is that?,” he screams, “It’s a *#@% beret!!” The word gets around about the guy with the beret—so the classmate and the food court employee report the matter to the Dean of Students. Two other students go along for moral support, reporting that the guy creeps them out with weird stares and talks about his hat a lot.

• Serious Threat?

• Where to get more info?

• Who else should be consulted?

• What about FERPA?

• Next Steps?

Serious Threat?Where to get more info?Who else should be

consulted? What about FERPA?Next Steps?

Serious Threat?Where to get more info?Who else should be

consulted? What about FERPA?Next Steps?

Stew is skipping many classes, except for Art History. He’s started to spend much of his time studying German art created between World War I and II. The beret is gone and has been replaced with a Nazi-era helmet, covered in stickers proclaiming “The U.S. Government is Watching” and “Wotswith U Sucks”. He also sent an e-mail to his dorm RA saying, “I know

you have my beret. Return it or else.”

• The Dean told Stew about the mental health services available on and off campus. Stew decides to access these services. He walks into the doctor’s office with three band-aids hanging off his ear, which has a small cut on it, like a shaving nick. When one of band-aids falls to the floor, Stew tells the doctor, “Don’t mind that. My imitation of Van Gogh didn’t work out so well.” In the course of the doctor’s consult, Stew reveals that he’s taken medication in the past, but he quit his meds because it hinders his creativity.

• Serious Threat?

• Who else should be consulted?

• What about medical confidentiality?

• Next Steps?

• At the end of the semester, Stew receives two “F”s, an incomplete, and a “B+” in Art History, which renders him academically ineligible to enroll for second semester at Wotswith. He walks into the lobby of the Office of the Dean, and in an agitated manner, demands to see the Dean. The Dean is out of the office—so Stew waits, practically vibrating with angst for two hours, scaring the heck out of the Dean’s office staff. When the Dean returns and walks into the lobby, Stew reaches into his backpack, and before anyone can react……………

• He pulls out his beret and his helmet, and throws them at the Dean, who ducks. Stew screams at the Dean, “This is all your fault!!”

• Next Steps?