It's an issue colleges have confronted before: the extent to which they should be expected to foresee and take responsibility for their students' actions.
The debate arises in the wake of student suicides or assaults that parents may believe could have been prevented. It pits safety against the protections of privacy and disability law – and can leave schools unsure how to act.
This week's shootings at Virginia Tech bring the issue to the forefront of schools' attention. "I think every college in the United States is going to be sitting down and saying 'what does this mean for us,' " says Peter Lake, a professor at Stetson University College of Law. "It will permanently alter college campuses. The public may call for more safety and less disability law, and we're going to see a quick change in the culture in terms of the response and identification of high-risk individuals." Lawsuits over the actions of Cho Seung-Hui, who killed 32 on campus Tuesday before killing himself, are virtually inevitable, experts say. But they differ sharply on how fair it is to hold the school accountable for the tragedy.
Virginia Tech had warnings dating back a year and a half about killer Cho's disturbing behavior. Those, coupled with news that several teachers had raised questions about Cho's violent writing and erratic classroom behavior, have led some to charge that the school should have acted more aggressively to prevent Cho from ever getting to the point of walking into a school dorm and, later, Norris Hall and killing so many students and faculty.
At a press conference Thursday, university officials reiterated that Cho had been seen as a threat only to himself and that federal antidiscrimination laws prohibit the university from taking actions against students after they're released from care.
Just last fall, the university held workshops for teachers on how to identify and handle distressed students. A panel appointed by Virginia Gov. Tim Kaine will review Cho's journey through Virginia Tech's own judicial review process.
"I know that we followed all policies correctly and we acted on information that we had, and now we have much more information," says Edward Spencer, an associate dean for student affairs at Virginia Tech. "He was very introverted, quiet, noncommunicative, and in a world by himself, but he wasn't described in any way as dangerous."
For some critics, it's a clear-cut case of a school not taking steps that in hindsight seem called for.
"They had a time bomb waiting to detonate in their midst. They knew about it. Yet they failed to take the proper actions and safeguards to protect other students and others at the university," says Jerry Reisman, a litigation lawyer and partner with Reisman, Peirez and Reisman, in Garden City, N.Y. "They had a duty, and they breached that duty."
Mr. Reisman says the school failed by not acting to lock down the campus after the first of the two shooting episodes, and argues that officials could have expelled or suspended Cho based on his earlier behavior, or at least referred him for a mandatory mental-health facility stay.
But that argument, say others, demands that a school have much more predictive powers than the murky world of profiling models and mental-health diagnoses gives them and ignores their legal restraints.
This kind of incident – and the ensuing lawsuits –can leave administrators feeling trapped "between Scylla and Charybdis," says Robert Smith, a lawyer at Nelson, Kinder, Mosseau & Saturley in Boston, referring to the mythical Greek monsters who lurked on either side of a narrow strait. "You move in one direction, and you're violating the law; you move in another direction, and you're told you're violating the law," says Mr. Smith, who has often defended universities in the past.
In fact, just a few weeks ago, Virginia became the first state to bar colleges and universities from expelling or punishing a student solely on mental-health or suicide-risk grounds. Federal disability law also protects students unless they make direct threats, and privacy law keeps institutions from letting parents know of their children's problems and often from sharing information among officials.
While there are exceptions for emergencies, those are often unclear. Virginia is one of a handful of states that has refused to follow the California Tarasoff decision that requires counselors or psychiatrists to breach confidentiality if there seems to be clear danger.
At the same time, universities across the country are seeing a significant rise in the number of students diagnosed with depression and other mental-health issues, in part because of the advancement in psychiatry that often allow such students to live more mainstream lives.
Smith, for one, would like to see the emergency exceptions and actions a school could take increased and clarified.
"If we can't screen, ... if we can't get our arms around it and intervene when it arises, if we can't make them take involuntary leave and get help and come back only when they've satisfied us they're not a threat – if we're hindered in that, then how fair is it to hold us liable?" he asks.
In Blacksburg, where students and faculty are still reeling from the deaths, some seem to agree.
As students learned more about Cho after viewing TV footage from the "multi-media manifesto" he sent between the two shootings to NBC, they debated the difficult spot in which Cho's behavior placed Virginia Tech's administration.
"It's obvious that this kid ... wasn't mentally stable and that they admitted him for counseling, but at the time it would be unreasonable to kick him out of school," says sophomore Christopher Saunders.
But some would like to see schools given more leeway in dealing with students showing the sort of warning signs Cho displayed. "They should give them a year off to go home and ... if, after that year, they're doing better, they should be allowed to return," says grad student Jinsong Chen.
While it's easy to declare that Cho's signs should have merited expulsion or mandatory detention, such calls are harder to make at the time.
Predicting how a student will behave based on threat-assessment models is impossible, notes Gary Pavela, a recently retired administrator from the University of Maryland. Punishing someone because they fit certain criteria runs the risk that the label will stick or be a self-fulfilling prophecy. "No one wants these vague standards that can be interpreted in multiple ways applied to them," he notes.
Still, Pavela ticks off steps that colleges can take. Some schools have a coordinated emergency evaluation team that includes campus police, mental-health experts, and student-conduct officials whose intervention can be triggered by multiple reports of incidents involving one student. Such a team – which requires a system for reporting concerns to a single place – can help establish a pattern of behavior.
Meanwhile, a few have raised questions about whether Cho's brief brush with a magistrate – who ordered that Cho be evaluated at Carilion Saint Albans Behavioral Health Center in 2005 – and the resulting overnight stay there should have kept him from being able to buy guns. Cho was referred to outpatient care after the stay.
Since his stay was noted as voluntary, the information did not have to be reported to the state or the FBI.
A bill was introduced to Congress in 2005 that would have reviewed weaknesses in the NICS background-check system, including the reporting of mental illness, but was never passed. It has been reintroduced this year.