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Virginia Tech Shooter and Antidiscrimination Law:

N.Y. Times:

A Virginia court document said that in 2005 a special justice in Virginia declared Mr. Cho mentally ill and an "imminent danger to others," a CNN report said.

The new information, disclosed by police in a news conference today, raises questions about whether warning signs about Mr. Cho's behavior and problems were handled effectively by police and the university.

Serious question: If you are a university official, and become aware of a court document like this [the Times does not say whether Virginia Tech officials knew about it], or other strong evidence that a student is mentally ill and potentially violent, is there anything you can do about it (other then recommending counseling) without violate relevant federal laws banning discrimination against the "disabled?"

UPDATE: Commenter Hans Bader writes:

It's not clear.

And I say that as someone who used to handle cases involving the federal Americans with Disabilities Act and the Rehabilitation Act for the Office for Civil Rights at the U.S. Department of Education.

The law governing K-12 schools, the Individuals with Disabilities Education Act, is still worse, affirmatively coddling violent students who claim to have behavioral or emotional disabilities.

Courts have construed it as requiring schools to not expel violent disabled students under the statute's "stay-put" provision....

State disabilities laws are also sometimes broader than the ADA or the Rehab Act, making life even more difficult for businesses and schools.

Steve:
Mental illness may be a protected disability, but I'm unaware of any precedents holding that someone who poses "an imminent danger to others" must be treated the same as everyone else. If you're aware of such precedents, perhaps you could share them with the VC readership.

I'm in awe, by the way, of the thought process wherein it takes mere minutes to find some liberal statute or regulation to blame for every bad thing that happens. It's the flipside of blaming Bush for everything, only it requires a much higher degree of creativity.
4.18.2007 6:01pm
Hans Bader (mail):
It's not clear.

And I say that as someone who used to handle cases involving the federal Americans with Disabilities Act and the Rehabilitation Act for the Office for Civil Rights at the U.S. Department of Education.

The law governing K-12 schools, the Individuals with Disabilities Education Act, is still worse, affirmatively coddling violent students who claim to have behavioral or emotional disabilities.

Courts have construed it as requiring schools to not expel violent disabled students under the statute's "stay-put" provision.

And even if a student is expelled for violence, and convicted of a violent crime, the school system may have to pay to send a tutor to the prison.

The Fourth Circuit ruled to the contrary, in a judgment announced by Judge Luttig, but the politically correct Senator Jim Jeffords got the Congress to overrule its decision in 1997.

State disabilities laws are also sometimes broader than the ADA or the Rehab Act, making life even more difficult for businesses and schools.

And Democratic (and some Republican) lawmakers are expected to introduce legislation this year that would override what few limits the Supreme Court has placed on disabilities rights claims in its recent decisions.
4.18.2007 6:03pm
OrinKerr:
David,

Why do you think the reason police didn't do anything was that they were limited by antidiscromination law? I couldn't tell if the article hinted at this or not, but I would think the problem would be a matter of cause to commit someone involuntarily who has not committed a crime.
4.18.2007 6:04pm
katieappliestocollege:
If this student was an "imminent danger" in 2005, then it looks like the university (and perhaps others) did what needed to be done at that time to prevent him from harming himself or others. Just as a matter of logic, he couldn't have remained "imminently dangerous" for more than a year.
4.18.2007 6:05pm
alo:
I suppose counseling wouldn't have helped...
4.18.2007 6:08pm
Thomas Alan (mail):
I don't think he was blaming any statute for this happening.
4.18.2007 6:10pm
davidbernstein (mail):
Orin, I didn't say, or mean to imply, that any statute stopped the police or even the school from doing anything (though the NPR report I just heard suggests that the school did know about the order). I'm just wondering what a school COULD do. Listening to NPR, a U. Va. official was asked the same question, and while the background issue of disability was not explicitly mentioned, the answer was, essentially, "nothing."
4.18.2007 6:18pm
Jeff Shultz (mail):
Nope, he wasn't blaming the statute - he was wondering if the statute would have prevented the school from accepting him (or continuing his enrollment) if they'd known about it.

Interesting question indeed - and one that schools administrators and admissions folks across the country should be asking.
4.18.2007 6:18pm
Steve:
And even if a student is expelled for violence, and convicted of a violent crime, the school system may have to pay to send a tutor to the prison.

But what's at issue here is not nondiscrimination, it's the state's interest in providing every child with an education. Virginia Tech may be a public school, but there's no right to a college education.
4.18.2007 6:19pm
FC:
Steve,

I'll assent to your implication that laws against discrimination are liberal if you'll stipulate also that laws against murder are conservative.
4.18.2007 6:19pm
Steve:
I'll assent to your implication that laws against discrimination are liberal if you'll stipulate also that laws against murder are conservative.

There's no need for us to argue. I'm very happy if you're here to announce that a bipartisan consensus has emerged in support of the federal antidiscrimination laws.

Again, I'd just like to see a precedent which stands for the proposition that you can't expel a student who poses "an imminent danger to others," on the grounds that it would be illegal discrimination on the basis of a mental handicap. If there's no such precedent, then I think the answer to Prof. Bernstein's question is quite obvious.
4.18.2007 6:27pm
Jim FSU 1L (mail):
Hey guys, wasnt he a prohibited person? Guess someone forgot to update NICS.
4.18.2007 6:29pm
Bobbie (mail):
There seems to be an assumption that you either expel the kid or do nothing.

Assuming those were your options, would you want to expel somebody who was mentally unstable? I doubt that would do much for their stability.
4.18.2007 6:31pm
Anon859893 (mail):
I recall reading about a 9th Circuit case some months back called Josephs or Joesphs or something like that. It was about a phone installer who worked for a California telephone company — you know, the people who are sent into customers' homes to install phone lines and the like. As I recall the facts from the opinion (though I'm too lazy to search for it), he had apparently lied on his application for employment about his arrest record; he had been acquitted by reason of insanity for attempted murder many years earlier — the guy had, for some reason, tried to turn off the life support/respirator of a paraplegic friend (against the friend's wishes). He was then institutionalized and released.

After being fired for lying on his application and then denied reinstatement, he sued under the ADA, arguing that the company discriminated against him on the basis of a perceived mental defect. I think the company had maybe reinstated some people who lied on their employment applications about their arrest records, e.g., about drugs. But the company said during the negotiations with this guy over reinstatement that there was no way they'd reinstate him to his home installer position, because they don't want psychos in customers' homes. (I'd guess taht the comments reflected discriminatory animus, but also the concern that, if there was an incident of violence, they'd be hit with a gigantic negligent-hiring suit.)

As I recall, the company lost before the jury, appealed the jury instructions, and the ninth circuit affirmed.
4.18.2007 6:34pm
JosephSlater (mail):
Anon:

It would be interesting to compare your memories of a case with general statistics showing that ADA plaintiffs do worse than plaintiffs in pretty much any other type of civil litigation, at pretty much every stage.

Beyond that, I'm with Steve.
4.18.2007 6:40pm
Kevin Murphy:
So, if the university had found his guns could they have expelled him? Or would his mental illness have excused him? Is the law that perverse?

This leaves aside the issue of a person obtaining guns whom the state has treated for mental illness. Don't they check for that?
4.18.2007 6:50pm
David Muellenhoff (mail):
Jim FSU 1L is spot on, although the topic deserves a separate thread: why was the shooter not flagged through the National Instant Check System as being a mentally ill person prohibited under Federal law from purchasing a firearm? Did some bureaucratic element of the system fail? Or (more ominously) is this a loophole? For example, are persons released from mental hospitals into outpatient care routinely not flagged by the system, just because they're no longer inpatients?
4.18.2007 6:50pm
Steve:
There seems to be an assumption that you either expel the kid or do nothing.

To be clear, I'm simply making the point that you COULD expel him (or at least I think so), to counter the suggestion that maybe nothing could be done. I'm certainly open to less drastic suggestions.

Now, to be fair, there's certainly a "chilling effect" arising from antidiscrimination statutes; well-meaning people do sometimes fear, rightly or wrongly, that they'll expose themselves to liability if they take adverse action against anyone who might have a colorable claim. And it's conceivable that VT administrators, knowing that you can't discriminate on the basis of a physical or mental handicap, might have assumed that "there's nothing we can do."

I'm just saying, IF that was their assumption, I think they were wrong; I don't believe there's any barrier to expelling someone because they're adjudicated as posing "an imminent danger to others," nor do I think there would be a barrier to adopting a blanket policy to that effect.

So if I'm right, and the law does permit a common-sense distinction between persons with a mental disability (can't discriminate against them!) and persons who pose "an imminent danger to others" (you can take action against them in order to protect the community), then maybe we at least have a teachable moment here.
4.18.2007 6:56pm
Tom Holsinger (mail):
Professor Bernstein,

Thank you for creating a thread about the real issue here - a university's duty to protect its students from other students conflicting with its legal mandates to give due process to the students posing the threat. The problem here wasn't guns - it was that Cho Seung-Hui was crininally insane and a known threat to others.
4.18.2007 7:00pm
David Muellenhoff (mail):
Well, I'm answering my own question. According to this article, Virginia is one of about 20 states that provide patient names to the NICS. Other states do not because their privacy statutes prevent it.

Perhaps the bipartisan Congressional bill mentioned in the article --forcing all states to provide names of the mentally ill to NICS -- will be the legislation that results from this massacre.

Still leaves open the question of why NICS didn't work in this case.
4.18.2007 7:00pm
David Muellenhoff (mail):
Whoops, here's the article.
4.18.2007 7:03pm
Steve:
According to this article, Virginia is one of about 20 states that provide patient names to the NICS. Other states do not because their privacy statutes prevent it.

It's one thing to say, for example, that you shouldn't get put on a no-gun list because you check yourself into a mental hospital, or because you visit a medical professional who thinks you're mentally ill. That's the medical privacy argument.

But it's another thing to say that a determination by a court of law that you pose "an imminent danger to others" ought to be kept private. A state can require judicial determinations to be forwarded to the no-gun database without making health care providers violate any privacy laws.
4.18.2007 7:08pm
alo:
if the NEA is to be believed, no state supplies mental health disqualifying records to NICS


Mental Health: 33 states keep no mental health disqualifying records and no state supplies mental health disqualifying records to NICS. The General Accounting Office (GAO) estimates that 2.7 million mental illness records should be in the NICS databases, but less than 100,000 records are available (nearly all from VA mental hospitals). States have supplied only 41 mental health records to NICS. Combined with the federal records, the GAO estimates that only 8.6% of the records of those disqualified from buying a firearm for mental health reasons are accessible on the NICS database.

from: link
4.18.2007 7:09pm
the flash:
this problem is really annoying....particularly because there has been no guidance for the universitys and they are just trying to carry out their legal responsibilities in these cases.

schools where students have sought counseling for depression have responded by kicking students out just for that...resulting in a lawsuit. (a gw student recently won such a lawsuit..rightly so in that case)

here we talk about why we DIDNT do that for someone who had a court document saying he was dangerous.

this situation keeps happanning again and again...the facts change slightly..he was suicidal..he was violent..he was stalking...etc....

but what we never get are legal guidleines for the university to follow...

nor will we get these guidelines by litigating the wazzzo out of it.

its time for congress to address this issue...what facts should warrant what action from a university??
suicidal?
depressed?
sought consuling
was stalking?
concerns from students/RA's about him

until they do we will get this again and again...and then no matter what the university does..they can simply say.."sorry we didn't know what to do"

and they don't....

until there is guidance every time there were warning signs that wern't acted on fully...there will be a lawsuit...every time there are warning signs that are acted on at all...there will be a lawsuit.

welcome to the USA
4.18.2007 7:27pm
whit:
look, i deal with mental wacko's (is that redundant) all the time. all the kneejerking aside, in many (if not most) jurisdictions, it's totally privileged info.

depression, etc. are extremely common and there are cops who are diagnosed bipolar and/or depressive who cannot be fired merely for having that condition.

HPPA is pretty restrictive on what can and can't be shared and released.

if a guy goes to see a counselor and the MHP thinks he is depressive, he cannot (at least in my jurisdiction) contact the state to try to get somebody's permit to carry revoked unless there is some sort of court hearing first to determine that the person is in fact mentally ill enough such that their right to carry is to be revoked.

the civil liability etc. is huge and no MHP in their right mind wants to divulge ANYTHING to any state agency etc. about some guys mental condition

also, merely being batsh*t crazy is irrelevant. you have to show the person is an IMMINENT danger to themselves or others before you can do anything

you cannot simultaneously be an advocate for medical privacy, people with "disabilities" etc. and then think that just cause some guy is kind of wacked, that all of a sudden his right to buy a firearm is gonna be revoked.
4.18.2007 7:42pm
whit:
look, i deal with mental wacko's (is that redundant) all the time. all the kneejerking aside, in many (if not most) jurisdictions, it's totally privileged info.

depression, etc. are extremely common and there are cops who are diagnosed bipolar and/or depressive who cannot be fired merely for having that condition.

HPPA is pretty restrictive on what can and can't be shared and released. and many states go much farther. of course, NOW that something happened i am prepared for the onslaught of kneejerk legislation... sigh

if a guy goes to see a counselor and the MHP thinks he is depressive, he cannot (at least in my jurisdiction) contact the state to try to get somebody's permit to carry revoked unless there is some sort of court hearing first to determine that the person is in fact mentally ill enough such that their right to carry is to be revoked.

the civil liability etc. is huge and no MHP in their right mind wants to divulge ANYTHING to any state agency etc. about some guys mental condition

also, merely being batsh*t crazy is irrelevant. you have to show the person is an IMMINENT danger to themselves or others before you can do anything

you cannot simultaneously be an advocate for medical privacy, people with "disabilities" etc. and then think that just cause some guy is kind of wacked, that all of a sudden his right to buy a firearm is gonna be revoked.
4.18.2007 7:42pm
Tom Holsinger (mail):
whit,

I've had to give a Tarasoff warning in my private practice. California law on involuntary civil commitments of the mentally ill basically requires that the dude attack the examining psychiatrist with an axe during the examination to merit locking them up.

And those crazy laws (pun intended) have grown to the point where the public has no protection against homicidal lunatics until after they kill someone.

The problem is not guns. The problem is that the political and legal systems have given overwhelming priority to the procedural due process rights of the violently insane at the expense of the public's rights to health and safety.
4.18.2007 8:11pm
Steve:
CNN is now reporting that the court order said the guy was a danger to himself, but NOT to others, so I guess the whole thread is mostly moot.

A temporary detention order from General District Court in the commonwealth of Virginia said Cho "presents an imminent danger to himself as a result of mental illness."

A box indicating that the subject "Presents an imminent danger to others as a result of mental illness" was not checked.


The NYT must have updated their story, as I don't see the language quoted in this post anywhere in the linked story.
4.18.2007 8:15pm
Jason Stewart (mail):
Seems like V-Tech could have been protected under the analysis used in Ascani v. Hofstra Univ., 1999 U.S. App. LEXIS 7654 (2d Cir. 1999).
4.18.2007 8:28pm
David M. Nieporent (www):
It would be interesting to compare your memories of a case with general statistics showing that ADA plaintiffs do worse than plaintiffs in pretty much any other type of civil litigation, at pretty much every stage.
Joseph, I'm not aware of any statistics that show how ADA cases fare at "every" stage -- only how they fare in reported cases. Since most cases settle, that wouldn't tell us very much. If there are statistics on all filed ADA cases, I'd appreciate a pointer to them.

More importantly, however, is that when a defendant loses an ADA case, it risks being on the hook for millions; when it "wins" an ADA case, it will still be out-of-pocket a six figure sum. There's really not much upside for a defendant when dealing with the risk of an ADA lawsuit.


Incidentally, Anon's memory was quite good; it was Josephs v. Pac Bell. (The Ninth Circuit is fun that way; it also gave us the Raytheon v. Hernandez case that the Supreme Court unanimously (surprise!) vacated.)
4.18.2007 8:40pm
pete (mail) (www):
I think that in this case there is good evidence that Cho should have been expelled earlier: the multiple stalking incidents, the fire starting, the professor who tried to get him help because of his writings, his refusing to talk or even say his name for attendence in class, the classroom where students refused to show up if he was there, and the professor who had a code word if they were afraid he was about to get violent. I do not know much about ADA, but I have worked for a university's residential life office and I have known university administrators to expel students for far less dangerous behavior than this. See this story for instance:

"Poet Nikki Giovanni, one of his professors, told a cable news channel Wednesday that her students were so unnerved by Cho's behavior that she had security check on her room and eventually had him taken out of her class.

Some students had stopped coming to class, saying Cho was taking photos of them with his cell phone, she said.

Giovanni told the Washington Post that after one instance when Cho recited his poetry in class, seven out of 70 students showed up for the next meeting.

She asked about the absences, and was told the other students were afraid of Cho."
4.18.2007 8:54pm
Steve:
There's really not much upside for a defendant when dealing with the risk of an ADA lawsuit.

This is pretty much how civil litigation works.
4.18.2007 8:55pm
David M. Nieporent (www):
Jason -- you'd think so. But that's a fact specific question. If a judge decides to let it go to trial, VPI might not be protected at all, if some jury finds that he didn't pose a danger. Even if one is "protected," that's only protection from a judgment, not from legal fees.
4.18.2007 8:55pm
logicnazi (mail) (www):
Surely it can't be that the university had an obligation to kick him out. Expelling someone who presents an imminent danger to others because of mental illness only makes them more likely to snap. All other things being equal it would be immoral for the university to protect their own students at the cost of increasing the total risk to society. Even if you disagree it hardly seems clear that expelling such a student wouldn't increase the risk to university students and personal by concentrating his anger at them.

Certainly it would be reasonable and humane for the university to do everything they could to get this kid into counseling. However, short of that it isn't clear what they could do. Searching his room and otherwise terrorizing him because of his mental condition might just make it more likely he snaps and as he isn't in an institution they simply can't watch him enough to stop him. Worse this sort of behavior would give many students, perhaps erroneous, fears of reporting mental problems or issues ultimately making the university community worse off and probably putting them in greater danger.

I don't buy the argument but it seems their is a stronger case that the government should have kept him from legally acquiring guns is stronger than any case for university action.

Ultimately though the extreme rarity of cases like this means it is almost always a waste of resources to implement substantial policies to guard against them. Almost always the same amount of resources put to some other problem (excessive drinking, domestic violence, whatever) will have a greater expected value of lives saved. Asking after the fact what could have been done to prevent this case just tends to lead to useless laws that waste resources and make life worse for the unfortunate folk who happen to share something in common with the offender.
4.18.2007 9:01pm
David M. Nieporent (www):
This is pretty much how civil litigation works.
True, as a general rule, one never wants to be a defendant. But in other contexts, there are actually standards to be applied, and those standards are reasonable, and liability is not arbitrary.
4.18.2007 9:02pm
Steve:
All other things being equal it would be immoral for the university to protect their own students at the cost of increasing the total risk to society.

Maybe it's immoral for me to fire an employee who poses a risk to my other employees, but I'd do it anyway. That's not to say I shouldn't try to get him help, but at the end of the day, my responsibility is to those under my care.
4.18.2007 9:14pm
logicnazi (mail) (www):
I know I just posted but this "we should have done SOMETHING" mentality just drives me nuts.

As far as committing people or getting them declared a danger to himself or others I think people forget that the high standards were passed as a reaction to a real harm of sane people (maybe a bit depressed or weird), particularly older relatives getting involuntarily committed.

Yes, I agree there are sad stories about families unable to commit their schizophrenic son and him dying because he couldn't be made t take his medicine. However, in order to provide the respect for freedom and personal autonomy that this board usually finds so important it is imperative that we don't make it too easy to commit someone who hasn't committed any crimes.

As far as looking at past court order or the like I suspect this turns out to be highly problematic. If past declarations by the court that someone is an imminent danger to others got them treated like a criminal for the rest of their life these cases would be a lot less likely to be brought to court in the first place (as it is often the person's family or others showing concern who do so). Worse, one would have to be clear what sort of danger their presented. Some people might be a danger only to their parents and hence keeping them in school might minimize that danger.

Connecting up these judicial determinations to gun purchases might be reasonable but expecting schools to go through these records and do something about the 'dangerous' people risks either hurting lots of people unnecessarily or just setting up schools to be blamed next time that their reasonable policy misses the one rare guy who goes crazy.
4.18.2007 9:17pm
pete (mail) (www):
"Expelling someone who presents an imminent danger to others because of mental illness only makes them more likely to snap. All other things being equal it would be immoral for the university to protect their own students at the cost of increasing the total risk to society"

That is ridiculous. A university has a responsibility to keep its campus as reasonably safe as possible. If a student is starting fires, stalking people, and has the teachers and students so scared that they are calling security and refusing to show up to class he needs to be kicked off campus, told he is not welcome, and arrested if he tries to show up again. Actually, intentionally starting dorm fires and stalking people should get you thrown into jail already (it seem the stalking victims did not want to press charges in this case). Not expelling him did not seem to stop him from snapping.

We are talking about criminal behavior here. Under your reasoning the surest way not to get expelled is to start acting as nutty and dangerous as possible. That way eveyone will be too scared to do anything to you.

Exactly how many fires should a student be able to start before the university gets to expell them? Or is it once they have started a fire the university should no longer be allowed to expell them because they might snap?
4.18.2007 9:28pm
Tom Holsinger (mail):
A point to consider is that universities are much quicker to act against students who destroy or damage university property than they are against students who threaten or injure other students.

My younger son's first roommate at UC Santa Cruz managed to get himself expelled before he was admitted. Brian was a water polo player and, the summer before his freshman year started, attended summer water polo camp on campus.

FYI, water polo players are known for their truly extreme aggressiveness. Worse, the UCSC water polo coach was a Montenegran exile (fortunately from one of the smuggler clans rather than one of the headhunter clans) who had left rather than be drafted into the Serbian army to murder Bosnian Muslim civilians. Still, he was a Montenegran.

FYI, Montenegro was the only part of the Balkans never conquered by the Ottoman Turks, and there was a reason for that. The same reason applied in World War Two - the Germans and Italians never "pacified" Montenegro. When Montenegro seized a part of the Ottoman Empire during the @ 1912 Balkan Wars which the Great Powers of Europe demanded be given to the new state of Albania and sent some warships to the Adriatic in a show of force, a regiment of the Montenegran army paraded on the cliffs overlooking the anchored squadron and did a mass tinkle into the sea while making imaginative hand and finger gestures. (William L. Langer, I think the book title was European Diplomatic History).

So having a Montenegran coach of a water polo team produces aggressiveness which is off the scale.

Anyway, the senior class members of the UCSC water polo team introduced the incoming freshmen players to alcohol on the Friday of the first weekend of summer water polo camp. And the team was housed in an on-campus apartment complex. Early Saturday evening, many thousands of dollars of damage later, the entire team was kicked off campus. And those who were not official students were told not to come back. So Brian was "expelled" before he was formally enrolled in any class.

But Brian was a minor - he didn't turn 18 until July, and this was only June. That's right, the UCSC administration put a minor on the street at night on a weekend with no due process or even telling his parents. Brian made a collect phone call home and his father drove down from Bay Area to pick him up.

So Brian ended up being readmitted and given a waiver of his tuition for the next four years. My son had an interesting freshman year experience with his roommate, Brian, and Brian's friends.
4.18.2007 9:32pm
ReaderY:
Outrage as only hindsight can express over people's utter lack of clairvoyance.
4.18.2007 9:33pm
pete (mail) (www):
"Yes, I agree there are sad stories about families unable to commit their schizophrenic son and him dying because he couldn't be made t take his medicine. However, in order to provide the respect for freedom and personal autonomy that this board usually finds so important it is imperative that we don't make it too easy to commit someone who hasn't committed any crimes."

I work in a public library, which is where many of these people spend there time during the day. The sad thing is that most of the time respecting their freedom means that libraries, police officers, hospitals, and homeless shelters get to pick up the pieces. Pretty much every day I get to interact with at least one homeless person who is incapable of taking care of themselves because of mental illness and who should be institutionalized somewhere. Sometimes they also pose a danger to others, but there is no place to put them and the best I can do is to have them kicked out of the building after they have endangered someone and sometimes the police show up in time to arrest them.

I also get to interact with a large number of people who are insane, but who somehow have managed to not become homeless. There are several people who use the library on a regular basis who are clearly insane (think the government is bathing them in microwave radiation from satelites, think the other people using the library are plotting against them, etc.). These are difficult to tell they are crazy since they often act completely normal at first or on some days.

I can promise you that right now in the US it is not too easy to get someone locked up for being insane.
4.18.2007 9:48pm
Steve:
So having a Montenegran coach of a water polo team produces aggressiveness which is off the scale.

Surely Montenegrism is in violation of the comments policy somehow.
4.18.2007 9:59pm
David Maquera (mail) (www):
Something tells me that the Montenegrans are not offended by Mr. Holsinger's post.
4.18.2007 10:17pm
David Maquera (mail) (www):
Seriously, back to the previous comments, I think legislators need to review whether a court's legal determination that a person who is deemed an imminent danger to himself should be subject to heightened scrutiny when trying to purchase a gun.
4.18.2007 10:24pm
katieappliestocollege:
"I can promise you that right now in the US it is not too easy to get someone locked up for being insane."

Many of these people would be less likely to be insane and in need of locking up if it were not so hard to get an involuntary treatment order, either for medication or outpatient services.
4.18.2007 11:29pm
Tom Holsinger (mail):
A friend pointed out that I compared apples to oranges in noting that universities are quicker to suspend or expel students who damage school property than those who threaten other students. He reminded me that the former entails completed acts causing damage, while the latter only involves threats, and that schools do in fact move as quickly against students for completed acts of violence against other students as they do against students who cause property damage.

We agreed that accusations of sexual violence not involving demonstrable physical injury must be treated differently than non-sexual assault because so many sexual assault charges are bogus, such as the rape accusation against the Duke lacrosse players.

With this in mind, the arson allegations against Mr. Cho merit closer examination. If there really was enough evidence to prove that he had caused fire damage to school property, VT's failure to expel him given his known violence potential against others might be culpable.

And we should not lose sight of the fact that Cho was non-white, which meant that there was a real risk that his expulsion would result in expensive litigation against VT by some activist group on his behalf (those even contact disciplined students asking if they want to sue, which would be "capping" when done by attorneys), if only to justify their budgets. Colleges and universities are very aware of this potential in disciplining non-white students.
4.18.2007 11:47pm
Elliot123 (mail):
The shooter is dead, but how many others are in the same situation and are walking around? How many others have been found to be a danger, scare their teachers, threaten other students, and have followed the same path as the shooter? I very much doubt his history up to the day of the shootings is an isolated case.

And if we had a list of these folks, is any action warranted? Is the current catch-and-release system viable?
4.18.2007 11:56pm
An Administrator:
We had an incident of a student placing a dead-rat under the pillow of another student. This followed a pattern of harassment. We were going to expel the student as a result, however, during a hearing in advance of making the final determination, the issue of mental illness was raised by the student's family. We were then advised by our office of legal counsel that expulsion would run afoul of the ADA.
4.19.2007 12:01am
Tom Holsinger (mail):
An Administrator,

So accomodate him. Suspend him for as long as the lawyer says you can get away with, tell him he may not live in campus-owned housing, and condition his attendence in classes on satisfactory attendance of weekly counseling sessions.

With each missed counseling session resulting in a disciplinary hearing where he can produce evidence of good cause for missing the counseling, and a stated-in-advance penalty of one week's suspension for each missed counseling session with no satisfactory excuse. Plus four weeks of suspension per term resulting in suspension for the entire term, and a readmission requirement of four to six consecutive attendances at weekly counseling.

The one thing he won't do is regularly attend counseling.
4.19.2007 12:19am
Tom Holsinger (mail):
BTW, this is my day job.
4.19.2007 12:20am
Jeff Hallman (mail):

Yes, I agree there are sad stories about families unable to commit their schizophrenic son and him dying because he couldn't be made t take his medicine. However, in order to provide the respect for freedom and personal autonomy that this board usually finds so important it is imperative that we don't make it too easy to commit someone who hasn't committed any crimes.


No, it isn't, at least not for the current value of 'too easy'. From a natural law perspective, our rights as humans are grounded in our nature as reasoning beings, able to make our own moral judgements. Deranged people can't, so their rights are naturally less. It may not always be easy to decide if someone is so irrational as to lose some of their rights, but sometimes it is obvious. A person bent on harming himself, for example, is clearly irrational. And judging by the stuff Cho sent to NBC, he too was clearly deranged.
4.19.2007 12:47am
A. Zarkov (mail):
Did the ADA shield Cho from deportation, or is it simply too difficult in any case? Had we shipped him back to Korea, he would have been their problem, not ours. We need to make it much easier to deport people who manifest an obvious threat to public safety.
4.19.2007 1:12am
legally naive (mail):
Our local school district in California has a policy that a child who brings a gun to school cannot be kept out of school for more than 45 days if the action was the result of a disability. I believe this is the policy in most school districts in California since it is suggested policy from California School Boards Association. In addition if there is a dispute about the connection between his mental state and the gun he must be back in school within 45 days while the dispute is unresolved. I think it is obvious that if a functional (perhaps loaded) gun is intentionally brought to school by a student that student is dangerous. Our only recourse, (and it is practical) is to ask the local DA to get the kid locked up since bringing a gun to school is illegal as well as against school policy.
4.19.2007 3:01am
A.C.:
If starting fires and stalking other students is prohibited for all students, then it should be prohibited for mentally ill students as well. Most depressed people do not do these things. The issue is the behavior, not the characteristics of the student.

There might be some difference in the penalty, of course. Expulsion seems the appropriate penalty for someone who acts out of malice, while mandating treatment as a condition of enrollment might be better for someone who is driven in part by illness. But again, the idea is to get at the behavior. A student who is quietly depressed and does not bother anyone should not be forced into treatment, although offering treatment is a good idea.

As for the non-white issue, that one can be tricky. I've certainly been in organizations where individual employees has behaved in erratic ways. When the offender is white, the individual tends to get punished. When the offender is non-white, I have often seen managers curtail EVERYBODY'S freedom in order to avoid a lawsuit for different treatment of a non-white employee. This is extremely annoying to the people (of whatever color) who know how to behave themselves, and it leads to attrition of the better workers (again of whatever color).
4.19.2007 9:55am
Smallholder (mail) (www):
I can add input about ADA/Special Ed protections in K12. If a child who has been diagnosed with an emotional disability violates school policy, he cannot be suspended in the same way that another student could. Prior to disciplinary action, a "manifestation hearing" is called. If this meeting of parents, special education teachers and administrators find that the behavior is a manifestation of the disability, he cannot be punished for it. In a normal situation, folks understand that behavior needs to have consequences and the manifestation hearing allows disciplinary action. However, if you have a parent in full-on advocacy mode, they can use due process to tie the system's hands in perpituity. There are some parents who deal with the pain of their child's disability by attempting to shield their child from all consequences. When confronted with a parent who will fight tooth and nail over this issue, most school adminisrators will decide that it is not worth the time and effort to get a three day suspension two years in the future, so the child's behavior will not be punished. it is rare, but there are extreme examples of how this works. I've heard a horror story (second hand - can't vouch that it is not an urban rumor, but I can see the possibility) about an elementary school classroom where a little boy punched his classmates on a daily basis and the school couldn't suspend him because he was labeled "emotionally disabaled" and his Dad was a lawyer and would fight the due process battle to the end.

In short - yes, the due process we give for disability does occassionally prevent disciplinary actions.
4.19.2007 10:13am
Tom Holsinger (mail):
legally naive,

I just asked my wife what would happen in her school district (Patterson, California).

1) Immediate suspension,

2) Initiation of manifestation (expulsion) proceedings,

3) Complaint to the District Attorney (bringing a loaded gun on campus is a felony) with likely Juvenile Court proccedings making the kid a ward of the court,

4) When the kid is released from Juvie, and assuming that the ADA prevents expulsion, he'd be transferred from Patterson High to Del Puerto High (a continuation high school which is part of the same district) and very likely be assigned to my wife's class.

5) She'd watch him like a hawk and have the principal inspect his backpack &search him given adequate justification, such as smoking on campus. The last time this happened (two months ago) the principal found roofies, and the kid was immediately arrested, sent back to Juvie and expulsion proceedings were carried through with no problem.
4.19.2007 11:48am
Frank M. Feibelman (mail) (www):
Under Federal law, only a person who is involuntarily committed to a mental hospital is banned from purchasing a handgun. A person who after a temporary detention hearing is found to be an immenent danger to himself or others because of mental illness, is held in a mental hospital for up to 48 hours peding a commitment hearing. If the special justice orders outpatient treatment, or the patient is allowed to voluntarily enter the hospital, then there is no involuntarily commitment order and the patient is not banned from purchasing a handgun. From the press reports I have read, Cho, after he was found by a magistrate to me a danger to himself or others, was allowed to do a voluntariy admission to a mental hospital, and was not involuntarily committed. That is why he was not on the list of persons not allowed to purchase a handgun.
4.19.2007 11:58am
ed o:
all this round and round about what could have been done with the main topic being the "rights" of the murderer? shouldn't society be less concerned about the nut and more concerned about protecting the innocents from the nut? isn't protection one of the reasons why we form social units? so far, we have various groups in Va telling us they did everything they could and the law prohibited us from doing anything else-that is quite an indictment on the direction society has taken.
4.19.2007 1:22pm
markm (mail):
A wheel-chair bound special ed student in high school set my son's gym locker on fire and got away scot-free because of his mental condition. That was a decision by school officials rather than by a court interpreting the ADA, but I think it rather indicates how this has been working out in practice.
4.19.2007 6:36pm
legally naive (mail):
Tom Holsinger,

Our process is the same except you left out what happens if the kid has a disability or the family is asserting that he does. Then there is a process, step 1.5 in your list, which can end up with a hearing, to determine if the behavior was due to his disability. No expulsion if it is. In the one case it happened to us the family left town (and I understand the country) before this step.
Your step #3 the locking up step, is crucial.
The district I'm referring to is an elementary district so continuation school isn't an option and we don't have a community school nearby. If a child is expelled we are still responsible for his education, which means in practice, find another district with a kid they have expelled and admit theirs while they admit ours.
4.19.2007 7:47pm
Tom Holsinger (mail):
legally naive,

If an elementary school child brought a gun to school which was acquired from the parents, I'm surprised Child Protective Services didn't step in with juvenile dependency proceedings and a direct threat of taking the kid away from the parents, for giving their child unsupervised access to the gun. My Court gets such cases.

Perhaps CPS action you are not aware of was why the parents in your case left the country with their child.
4.19.2007 8:18pm
Mary Katherine Day-Petrano (mail):
For all the ADA bashers here who cannot see the ADA wuld nto have protected the VA shooter under the "direct threat" exception, there is another side of the bash-the-ADA-story here, and that is when Bush &Co. wrongly make Americans With Disabilities Act activists "enemies" of the President's ridiculous War of Terror.

Orin Kerr wrote on another thread on Volokh: " I don't know if the U.S. Attorney purge story will actually play out into something truly scandalous. There's some smoke, but it's hard to tell if there's any fire."

Really? I would bet if Congress expanded their investigation, a flaming inferno would be found.

Amazing -- this is the second time I got blipped off posting the content of this comment. Query -- am I being censored by homeland Security and the U.S. Dept. of Justice a/k/a/ Alberto Gonzalez?

Ya see, it goes like this, and I would definitely urge the House and Senate Judiciary Committees to immediately investigate this as additional potential grounds to impeach and to investigate whether Bush &Co. have improperly influenced the Federal Judiciary.

My disabled husband and I (Americans With Disabilities Act civil rights activists), came under severe punishment from the U.S. Dept. of Justice, Federal District Court Judge James D. Whittemore, and United States Court of Appeal, Eleventh Circuit Judge Ed Carnes, during the reign of Paul Perez, the United States Attorney who suspiciously resigned just as the Alberto Gonzalez horse pucky was hitting the fan, immediately after we did the following:

1. Complained to President Bush's 2000 &2004 Presidential election lawyer, Barry Richards, Esquire, of Greenberg Traurig (Jack Abramoff's and Justice Scalia's son's law firm) that I and potentially thousands of other disabled assistive technology users were deliberately disenfranchised from voting in the Florida elections who might have voted Democratic rather than Republican by the U.S. Dept. of Justice's and then-governor Jeb Bush's administration's refusal to make Florida's voting process comply with Title II of the Americans With Disabilities Act'

2. Obtained an email from Theron Hutto, who admitted recklessly tying an expensive Yacht to kill my husband and I, and who admitted and confessed to having committed willful material perjury before Federal District Court Judge James D. Whittemore and Magistrate Elizabeth A. Jenkins, who is still walking free without any fear of prosecution of the U.S. Dept. of Justice, in which email Mr. Hutto admitted working for Jack Abramoff's SunCruz Casinos;

3. Complained that U.S. Attorney, Paul Perez obtained and used a falsified written medical report by a paid hired gun doctor of the U.S. Attorney's Office , Dr. Vladimir Alexander, that falsified my husband's severe epilepsy and frontal lobe brain damage as 'not a disability' based on Dr. Alexander being an Orthopaedist (bone doctor unqualified to evaluate psychiatric injuries) and based on Dr. Alexander basing his medical conclusion on a video deposition of me that never occurred because I filed a motion to quash the deposition subpoena of the United states Attorney for not providing me required disability accommodations; and this falsified written report was used against my husband by Paul Perez and the U.S. Attorney's Office to put down an Americans With Disabilities Act and Rehabilitation Act of 1973 challenge to the nondischargeability of federal student loans in bankruptcy at the core of the now known student loan scandal arising in the bush administration;

4. Complained that the Social Security Administration deliberately lost my SSDI and SSI Social Security appeals for 8-9 MONTH after SSA signed for receiving them, which appeals challenging not only my right to disability benefits but that I and potentially thousands of disabled people entitled to such benefits were wrongly being shut out of their entitlement by the Bush &Co. Social Security Administration refusing to provide disability accommodations in the application and appeals process required by Secs. 504 &508 of the Rehabilitation Act of 1973; thereafter, Bush &Co.'s Social Security Administration attorneys apparently lied to Senator Mel Martinez, a fellow Republican, that I never filed a timely appeal knowing that I did and that Social Security Administration had signed for receiving my appeals;

5. Complained that a person listed in the Tampa area State Court as a confidential informant, Bradley Boyce Bowen, had starved my equine disability service animal, even providing pictures of other horses this drug informant had starved and/or died, was being protected by Paul Perez, U.S. Attorney's Office and the Tampa are Sheriffs Department, for which Federal Judge James D. Whittemore was raised as a reason to deny me a remedy -- without also informing the Court that Federal Judge James D. Whittemore has been punishing my husband and I after he pointed at me at the outset of a hearing and excitedly uttered "Are you blind?," and I filed a complaint with the National Court Reporter's Assn for judge Whittemore's Court Reporter, Linda Starr altering the improper disability slur out of the hearing transcript she certified.

So, if you want REAL answers to your question whether there is more than smoke, Congress should expand its investigation into what heppend to my husband and I aimed at the Nixonian Watergate-NSASpygate-U.S. Attorneygate-Iraqgate coverup now unraveling that would put John Dean and Nixon Attorney General Mitchell to shame.

Americans are angry and want impeachment NOW. And justifiably so!

Maybe Congress should investigate with respect to what happened to my husband and I, whether the perjurer Theron Hutto admitted Abramoff SunCruz employment might be a thread that leads to whether or not 9-11 was a Bush &Co. inside job -- another fraud on the American people to trigger a power hungry Presidential Nazi-Stalinist dictatorship coup on our Democracy.

Congress can begin by investigating the resignation of Tampa U.S. Attorney Paul Perez and what has been done to the Petranos.

For all you ADA bashers, stop blaming the VA shooter on the ADA, and start realizing there are two sides to the ADA story.
4.20.2007 4:58pm
Kamau:
Smallholder: It is significantly simplifying the law to state that if a behavior is determined to be a manifestation of a disability, a school cannot impose consequences. The followng is a bit oversimplififed as well, but... A school has other mechanisms, in addition to the standard penalties, to provide consequences. In fact, such students typically should have behavioral intervention plans, which specifically outline consequences for improper behavior. What a school cannot do if it is determined that the behavior was a result of the disability or the result of the school failing to implement the child's education plan is treat the child as though he does not have a disability.

Further, if a school can demonstrate that the child is a danger to himself or others, or that the child cannot function in a regular education environment, it has a wide range of options to take other than do ntohing. And clearly a student punching other students on a daily basis is a threat to others. So if the school did nothing in the situation you reference, that is a result of poor administration, not a result of disability law.
4.20.2007 6:59pm
Kamau:
Tom, et al.: One thing that seems to be stated over and over is that the obligation to continuing providing education means that the child has to be educated in the public school. There is no such requirement. In fact, the law requires that he be educated in an appropriate setting. For someone who sets fires, or is a real damger to others, that would probably be a very secure residential setting.
4.20.2007 7:09pm
Purple Avenger (mail) (www):
Under Federal law, only a person who is involuntarily committed to a mental hospital is banned from purchasing a handgun.

The relevant statute 27 CFR 478.32(a)(4) doesn't mention the word "involuntary". It also says simply "adjudicated as a mental defective" without saying anything about treatments as in/out patient.
4.20.2007 11:58pm
Mary Katherine Day-Petrano (mail):
"The relevant statute 27 CFR 478.32(a)(4) doesn't mention the word "involuntary". It also says simply "adjudicated as a mental defective" without saying anything about treatments as in/out patient."

Actually, that CFR reg is probably preempted by the ADA's 42 U.S.C. Sec. 12201(b) "other federal laws" in conflict with the rights, remedies, and procedures of the ADA.
4.21.2007 2:56am