Colorado shooting: If a school is warned about a student, what must it do?

In the wake of the tragic 2007 shootings at Virginia Tech, where 32 students were killed, universities around the country set up committees to assess whether a student represented a threat to the campus community.

One of those schools was the University of Colorado, Denver, which established a Behavioral Evaluation and Threat Assessment (BETA) group in 2010.

On Thursday, the BETA group found itself under the microscope after news reports saying that one its members, a psychiatrist and university professor, had phoned some of the group to discuss one of her patients, a graduate student named James Holmes.

Mr. Holmes, who subsequently withdrew from the medical school’s PhD program in neuroscience, is the alleged gunman in the Aurora movie theater shooting, in which 12 people were killed and 58 wounded on July 20.

Did the BETA group have a responsibility to alert the police that there was a potentially dangerous student?

Lawyers say the answer is maybe, maybe not.

On one side of the argument are those who say the main responsibility of the university is to protect its students, faculty, and administrators. Since Holmes dropped out of the university before the BETA group could meet, the argument goes, they had very little responsibility for him.

“The university has a legal duty to protect its students, not the world at large,” says Barry Pollack, a defense lawyer and partner in the Washington law firm of Miller & Chevalier. “If they get information about someone who is not a student, it is not in their purview to do anything about it.”

On the other side are those who say that if Holmes made threats while he was still a student, the BETA group had a responsibility to act. A reasonable person would have called the police, they argue.

“If a student says they are going to kill someone on Monday but drops out of school on Tuesday, there is a duty to take reasonable steps,” says Kenneth Simons, a professor of law at Boston University School of Law.

The key issue, says Professor Simons, is what Holmes may have actually said in his session with the school psychiatrist, identified by Holmes’ defense team as Dr. Lynne Fenton, director of the school’s Mental Health Service. Did he specifically say he was going to a theater or mall to kill people?

At this point no one knows what took place between Holmes and Dr. Fenton. In addition, the judge in the case has invoked a gag order, forbidding the police and other people involved with the case saying anything about it. More information is likely to come out at Holmes’ trial and perhaps during the discovery process if there are civil lawsuits.

However, in the state of Colorado, doctors are required to notify the police if there is a specific threat to an individual.

“If he [Holmes] said, ‘I am going to go to Aurora and go to a movie theater and kill people,’ there are steps such as going to the police or taking steps to commit him,” says Simons.

The issue of whether a school therapist should divulge information about a patient is being raised at a time of increased pressures on college students. They are taking on large debt loads and are unsure of whether they will have a job when they leave school. For whatever reason, some of them snap.

“We’ve had an increase in the number of students with psychological challenges,” says Brian Rosenberg, the president of Macalester College in St. Paul, Minn. “It’s just a sign of our times.”

Mr. Rosenberg says that at Macalester there is a risk group that meets every other week. “They report on whether there is a student on campus who seems at risk to himself or others or is in some sort of crisis situation,” he says. “If it seems to merit it, there is some intervention or reaching out from the group.”

He says it is very tricky for the school to force students to seek help. “Our first step is to set up counseling and bring them to a hospital,” he says. “If things get worse and they are not responding, we report it to the authorities.”

Would Macalester act if the individual dropped out of school?

“If the student completely leaves, we no longer follow that student,” he replies. “If they take a leave of absence with the potential to return, when they get back we would try to find out what they did to address their problem.”

One of the challenges, says Rosenberg, is that schools face lawsuits from every direction. If they don’t act to protect the student body they can be sued. If they act too precipitously, they can be sued for violating an individual’s right to privacy.

“For institutions, it’s a challenging legal line to walk,” he says.

Legal experts say it’s likely that the families of the victims of the Aurora shooting will sue the university. “They can sue the state for negligence for failing to prevent a criminal activity from occurring,” says Simons.

On Thursday, John Banzhaf, a professor of law at George Washington University School of Law, wrote that the victims and families, “many facing enormous medical costs, are likely to sue any entity which was involved, and which might have enough resources and/or insurance to pay for damages. Juries are likely to be sympathetic to the plaintiffs, especially in the light of the many damaging facts which have already come out, and any yet to be discovered.”

However, Mr. Pollack, the defense lawyer, thinks any lawsuit against the school will be very difficult to win. “Do they have a responsibility for every student after they have left the campus?” he asks.

He anticipates the university will try to settle with the families as quickly as possible. That’s what ultimately happened at Virginia Tech. “There was the option of getting compensation rather than suing,” he says. “The vast majority of the families opted to go for compensation versus lawsuits.”