Katie Gaughan

April 24, 2008

Last week the nation marked the first anniversary of the tragic Virginia Tech shootings that took the lives of 32 students and faculty and wounded 17 others. Other school shootings have occurred since Virginia Tech’s, and policymakers and school officials are trying to prevent this type of violence from happening again. But while lawmakers and school officials have good intentions, some of the current and proposed measures sacrifice student privacy and well-being for a superficial feeling of safety.

Most recently, the U.S. Education Department’s Family Compliance Office has proposed changes to the law that protects the privacy of students’ education records. While the proposed regulations to the Family Educational Rights and Privacy Act (FERPA) are meant to clarify the law, the changes could give more leeway to schools that want to disclose records without consent in cases of “health or safety emergencies.”

The proposed changes to the FERPA regulations along with bills dealing with student privacy that have been signed into law in states across the country could ultimately lead to an increase in discrimination against students seeking help for any kind of mental illness, including depression. While students at colleges and universities have a history of being legally considered adults and independent of their parents, now officials have free reign to call parents, as if the students were back in high school. Students have lost their ability to sue over disclosure of medical records and face eviction from housing, or even expulsion from school, if their mental illnesses become public knowledge. In effect, well meaning efforts to prevent future school shootings have ultimately resulted in a huge loss in civil liberties for young people.

One of the major problems according to Sandi Scott Duex, the director of residential life at University of Wisconsin-River Falls, is that the government hasn’t strictly defined when it is appropriate to contact a student’s parent in cases dealing with mental illnesses. “They still don’t define what a ‘health or safety emergency’ is, and they never have,” Scott Duex said. The proposed changes to FERPA would also eliminate repercussions for university or college officials who disclose records without a student’s permission. Earlier this month, Virginia Gov. Tim Kain signed a bill, H.B. 576, granting immunity from any kind of lawsuit resulting from the disclosure of medical records, unless the official is proven to have acted “in bad faith.”

FERPA currently reclassifies health information held by an educational institution as “education information”; this means that the Health Insurance Portability and Accountability Act (HIPAA), a set of regulations that typically prevent health professionals from revealing medical information to anyone other than the patient, does not apply. Health professionals that work for educational institutions are no longer bound by health privacy laws. “There’s no legal right to private action under FERPA. If I screw up and release someone’s records, I can’t be sued,” Scott Duex said.

“We’ve swung way back the other way now,” she added. “Before, institutions would only disclose information in extreme situations. Now, if there’s even a remote possibility that someone’s a threat to themselves or others, they’re calling parents a lot sooner.”

And in terms of preventing school violence, the proposed changes aren’t sufficient. “These regulations are a small step towards that. Society as a whole needs to address the issue of violence in general and on college campuses,” said Ada Meloy, General Counsel of the American Council on Education and expert on legal issues in higher education.

For example, another bill Virginia Gov. Kain recently signed requires colleges and universities to create a procedure for notifying parents when a student seeks counseling help on campus–regardless of whether the student is deemed at risk or not. The parents can be notified even if they are part of the student’s problems. “After Virginia Tech, there’s such a knee-jerk reaction,” Scott Duex said. “Students that are a health or safety risk, that’s 5 percent of our population. It’s the 95 percent whose parents don’t need to be notified,” she added.

Some schools even have policies in place that expel or kick students out of housing (or both) if they show suicidal tendencies. The two cases that set the precedent for handling student mental health cases are Nott v. George Washington University and Jane Doe v. City University of New York (Hunter College), McBain said. “In both cases, the students sued alleging discriminatory treatment and violations not only of the Americans with Disabilities Act (ADA) but the Fair Housing Act for being precipitously removed from student housing after seeking medical treatment for mental health issues,” McBain said.

Nott’s complaint contended that since he was not actively suicidal but simply seeking treatment for depression, GWU’s actions in barring him from housing exacerbated his mental health problems, McBain explained. Jane Doe’s complaint, he added, focused on Hunter College’s changing the locks on a student’s dormitory room while she was hospitalized for treatment after a suicide attempt. Both cases show that thanks to a lack of privacy, students are now subjected to discrimination when their mental illnesses are revealed.

McBain encourages schools to “separate diagnosis from behavior, ensure that everyone is safe and not stigmatizing diagnosis.” Mental illnesses like depression are common among college students. A recent MTV/Associated Press survey found that 12 percent of college students found “life not worth living” at least sometimes and 1,000 students commit suicide annually. Students named depression as one of the top ten impediments to academic performance. Academic demands, living away from home, financial responsibilities and new relationships are contributing factors, according to the Bazelon Center for Mental Health Law.

Although these measures were passed to prevent the relatively rare possibility of school shootings, they may inadvertently lead to more deaths by suicide. Students won’t seek help if they need it; such regulations could further isolate a student that could otherwise benefit from the help of a trusted counselor. Many schools are also under-funded and under-staffed in their mental health services. McBain said that Virginia Tech employed one full-time psychiatrist to serve a 27,000-student body.

Inside Higher Ed recently pointed out that suicide is far more prevalent than widely reported shooting sprees. After all, suicide is the number two cause of death among college students. “The majority (about 80 percent) of students who die by suicide have never gone to the counseling center,” the article said. By revoking confidentiality between students and counselors, we run the risk of making this number go up.

Rather than kicking students out of school for mental heath treatment, colleges and universities should view mental illness as a legitimate illness and treat the students who suffer from it accordingly. “If a student had cancer and was getting treatment, why would we kick them out of school? Likewise, if a student was suicidal and getting treatment, why would we kick them out of school?” Scott Duex said.

Katie Gaughan is the Development and Communications Assistant with The Advocates for Human Rights in Minneapolis. She graduated from the University of Minnesota in 2007.