December 2013, Volume 49, No. 12
Student suicide and school liability
Teen suicide is increasing, and school counselors and administrators are often in the best position to identify and prevent these tragedies. Yet courts can be reluctant to hold school districts liable.
Suicide is the third leading cause of adolescent death, and after a slow decrease over the last two decades, teen suicide rates are on the uptick.1 In a survey published in 2011, about 16 percent of high school students reported that they had seriously considered suicide, and about half that number reported having made one or more attempts.2 On average, every high school will have at least one student suicide every five years, and a typical high school may have 35 to 60 suicide attempts annually.3 School personnel often are in the best position to detect a potentially suicidal student, and their actions can have dire consequences.
Consider this scenario: A student reports suicidal thoughts to a guidance counselor or confides that a friend is suicidal and has made suicidal comments in a note. The counselor interviews the potentially suicidal student, finds him or her upset but rational, concludes that no threat exists, and then sends the student back to class. If the student goes home and commits suicide, can the counselor and school be held liable?4 On what ground? On what proof?
Claims against guidance counselors, school administrators, and school districts for student suicides fall into two general categories: Federal claims under 42 U.S.C. §1983 and related federal civil rights statutes such as Title IX, the Americans With Disabilities Act (ADA), and the Individuals with Disabilities Education Act (IDEA). The second category includes state claims for negligence, negligence per se, state constitutional provisions, and civil rights laws. Each category presents its own challenges.
Under §1983, federal civil rights claims against schools and their staff for student suicides generally have been brought on the “state-created danger” theory. This theory was first articulated in DeShaney v. Winnebago County Department of Social Services, which requires a showing that a defendant, acting with deliberate indifference to the plaintiff’s plight, used public authority to create a potential for harm that did not otherwise exist.5
A seminal case in the state-created danger arena is Armijo ex rel. Chavez v. Wagon Mound Public Schools, in which the plaintiffs offered proof that the school suspended their 16-year-old son, a special education student classified as emotionally disturbed.6 The proof showed that the boy told his counselor that he was depressed and suicidal; the principal directed the counselor to drive the boy to his home, where it was known that he had access to firearms; and the counselor left the student alone without contacting his parents, contrary to school policy. He shot himself before his parents came home. This proof was deemed sufficient to raise questions of fact regarding danger creation and deliberate indifference, and the case survived the school’s and the counselor’s summary judgment motions.
But several federal circuit courts have questioned Armijo’s reasoning and precedential value.7 In these and other cases, §1983 claims against counselors and school officials for state-created dangers have been dismissed for want of affirmative danger-creating action. For example, in Sanford v. Stiles, §1983 claims against the school and counselor were dismissed because the counselor who saw no sign of suicidality did not create a danger in releasing him back to class; the boy continued at school for a week, wrote additional notes unseen by the counselor and ignored by his mother, and later hanged himself at home while his mother was upstairs.
Likewise, in Wyke v. Polk County School Board, a state-created danger claim was dismissed when school officials, aware of a 13-year-old boy’s two suicide attempts in one week at school, did little to prevent his eventual suicide.8 The plaintiffs argued that the school officials failed to contact his mother, who was unaware of his attempts, and also failed to counsel the boy (other than offering him a few Bible verses) even though another parent advised them of the boy’s more recent suicide threat. He hanged himself in his backyard. The Eleventh Circuit ruled that the school had done nothing to create or exacerbate the risk of suicide or to prevent others from intervening.9
In appropriate circumstances, when sex-based, gender-based, or disability-based harassment precipitates suicidal conduct, plaintiffs may buttress or supplant §1983 claims with equal protection, Title VI, Title IX, IDEA, ADA, or Rehabilitation Act (“Section 504”) claims.10 Walsh v. Tehachapi Unified School District is a poignant example.11 In that case, a 13-year-old gay student was taunted for two years by his classmates, teachers, and even administrators until he was physically assaulted by other students and then went home and hanged himself. His mother’s federal lawsuit raised §1983 claims grounded on substantive due process and equal protection violations, and it included Title IX claims against the district for the gender-based harassment by his classmates and teachers.12
The court upheld, for equal protection purposes, the plaintiff’s §1983 claims against individual school officials, but it rejected the claim that administrative inaction in the face of orientation-based harassment by students and staff was discriminatory. In dismissing the claim (subject to repleading), the court concluded that the plaintiff’s substantive due process claims failed to allege facts establishing the pervasiveness and causative impact of teachers’ derogatory comments and conduct.
The court dismissed the plaintiff’s Title IX claim against the school district based on teacher and administrator harassment (requiring a showing of severe and pervasive harassment, actual knowledge by a school or district official with corrective authority, and deliberate indifference in response). But it permitted repleading to allege facts establishing the pervasiveness and motivation of teachers’ and administrators’ disparaging comments.13
As Walsh suggests, neither Title IX nor §1983 will support district or individual liability for a counselor’s or administrator’s failure to take action in the face of bullying by a student’s teachers or peers when the harassment is not pervasive, the counselor lacks direct knowledge or has no corrective authority, or the suicide is too remote from the counselor’s conduct.14
What if it’s a counselor’s own harassing or abusive behavior that drives a child to suicide? Case law from the harassment arena suggests that, although the counselor may be individually liable under §1983, district liability will attach only if the elements of a Title IX claim for staff-on-student harassment or a Monell claim of policy indifference—including failure to train—are proven.15
One final hurdle for federal claims is the defense of qualified immunity. In Sanford, the district court held that the defendant was entitled to qualified immunity because the primary constitutional right the plaintiff asserted—the right to protection from affirmative acts placing her son in danger of suicide—had been endorsed only by the Tenth Circuit in Armijo, so it was not clearly established by the Supreme Court in Harlow v. Fitzgerald.16 When the Third Circuit decided the appeal in Sanford, it joined other courts in declining to address qualified immunity in the absence of a constitutional violation finding, but the defense remains viable in the rare case where an emerging constitutional right to intervention to prevent suicidal conduct might be found.17
State law claims
When claims of negligence, negligence per se, infliction of extreme emotional distress, state constitutional violations, and statutory civil rights violations are alleged, plaintiffs have been marginally more successful than they have been in federal court.18 Eisel v. Board of Education of Montgomery County may be the seminal case in establishing a counselor’s or school’s tort liability for a student’s suicide.19 In Eisel, school counselors learned of a 13-year-old student’s murder-suicide pact but did not notify the girl’s parents or other school officials. The Maryland Supreme Court held that the state’s Suicide Prevention School Programs Act; the school’s own suicide prevention policy; and the relationship between school, counselor, and adolescent gave rise to a duty on the counselors’ part to use “reasonable means to attempt to prevent a suicide when they are on notice of a child or adolescent student’s suicidal intent,” including, at a minimum, notice to the student’s parents.20
Following Eisel, state courts in several states have considered—but not found—counselor or school liability for student suicides under two common law theories. The first involves extreme and outrageous conduct that causes severe emotional distress that is a substantial factor in bringing about the suicide. The second theory arises when a responsible party in a custodial or professional relationship is in a position to know about the person’s suicide potential and fails to take measures to prevent it from occurring.21
More promising for plaintiffs, however, are claims of negligence or negligence per se grounded in statutory, regulatory, or district policy for suicide threats and suicide prevention—as in Eisel. For example, in Wyke, the Eleventh Circuit looked to Florida statutes and regulations regarding school control, student health and welfare, and school guidance, including consultation with parents, to find a duty of parental notification when school officials were aware of a student’s prior suicide attempts at school.22
In Rogers v. Christina School District, state department of education regulations and local suicide prevention policy directing a counselor or psychologist to “stay with student, assess situation, contact parent, get help, document and file, follow-up” would support negligence per se liability if violation and causation were shown.23 And in Estate of Girard v. Town of Putnam, a state-mandated district suicide-prevention policy—establishing mandatory steps for staff response to a student’s suicidal thinking or conduct and vesting the student’s guidance counselor with responsibility—was held to support counselor, administrator, and district liability for failure to act on repeated reports of a student’s suicide threats, and also to defeat defendants’ claims of state discretionary judgment immunity.24
Still, a causal link between counselor conduct and student suicide may be difficult to establish. A statute or regulation may not require notice or response to every suicidal comment, and even failure to adopt a suicide prevention policy may not give rise to liability.25 As with constitutional claims, state law claims often are defeated by governmental or discretionary act immunity for state entities or state actors—a minefield for the unwary that may protect defendants against claims arising under state tort or statutory law.26
But pity the poor guidance counselor who fails to notify parents or record a student’s potentially suicidal conduct: He or she may be disciplined for violating regulation or policy, notwithstanding the good intent with which he or she held the student’s conduct in confidence.27 Even worse, if the counselor’s harassment precipitated the student’s suicide, the counselor may be not only disciplined and unemployed but also civilly or criminally liable and without insurance coverage for his or her defense.
Building the case
If the plaintiff parents choose to proceed against a counselor or school despite the long odds against a successful case, investigation and discovery of relevant information pose challenges. At the start, Family Educational Rights and Privacy Act (FERPA) protections, as well as state statutory privileges, may apply to relevant school records, including reports of prior suicide attempts, threats, and misconduct. It also may apply to records of bullying or harassment by other students or staff.28
However, FERPA makes an exception from nondisclosure for threats to self or others, requiring disclosure to people with a legitimate educational interest in a child’s behavior.29 In the broader discovery realm, it does not extend to school public safety records, the final results of disciplinary proceedings involving incidents of violence, or “directory information” regarding student names or attendance. It does not apply to psychiatric or psychological records made by a professional for treatment purposes, nor does it bar parental access to disciplinary records involving alcohol or drug use.
Protected records may be disclosed with student and parent consent or with a court order, with notice to student and parents, if the need for disclosure is shown to outweigh privacy interests.30 FERPA does not protect teacher or staff disciplinary records, although staff employment records may otherwise be accorded a statutory or common law right of privacy, subject to disclosure only on a showing of compelling need.31 But a school district will tread carefully in releasing student or employment records, because a precipitous or unwarranted release may subject it to suit for constitutional violation for invasion of privacy.32
Evidentiary privileges for medical, psychiatric, or psychological treatment records may, under state privilege law, give way to compelling need for access to records, working in plaintiffs’ favor if the conduct of other students or staff is implicated in a student’s suicide.33 Plaintiffs should be aware that defendants may demand access to treatment records, not only for the student but also for parents or guardians; this should serve as a caution to plaintiff lawyers where a troubled student or a troubled home is involved.34
Student suicide cases are always heartbreaking. Parents are in shock while students, teachers, and administrators are devastated. State law, state education regulations, and school district suicide prevention policies recognize that student suicide affects the entire community, posing dangers of contagion, rumor-mongering, and further marginalization of at-risk students, as well as the potential for legal action and liability.35 The proliferation of such policies, establishing concrete steps for school personnel to follow in the event of a suicide or attempt, would appear to minimize the discretion of school counselors, teachers, and administrators in responding to a student’s suicide threat, particularly in releasing the student from school and notifying parents.
As the Eleventh Circuit pointed out in Wyke, “The risk of a child’s death substantially outweighs the burden of making a phone call.”36 Yet bringing an action against a counselor or school district for failure to respond to a student’s suicide threat is risky business. It is enmeshed in the complex interplay between federal constitutional and statutory limitations, federal and state immunities, and evidentiary privileges and protections. Attorneys must tread cautiously, and with a clear understanding of the jurisdiction’s legal constraints, when they represent grieving parents.
- See Ctrs. for Disease Control & Prevention, Natl. Ctr. for Injury Prevention & Control, 10 Leading Causes of Death, United States, 2010, All Races, Both Sexes, www.cdc.gov/ncipc/wisqars; Stephen Roggenbaum, Youth Suicide Prevention School-Based Guide—National Suicide-Related Statistics: National Statistical Information 2 (U. of So. Fla. College of Behavioral & Community Sci., Dept. of Child & Fam. Studies, Louis de la Parte Fla. Mental Health Inst. 2012), //theguide.fmhi.usf.edu/pdf/2012PDFs/Statistics.pdf.
- See Ctrs. for Disease Control & Prevention, Trends in the Prevalence of Suicide-Related Behaviors, National YRBS: 1991–2011, www.cdc.gov/healthyyouth/yrbs/pdf/us_suicide_trend_yrbs.pdf.
- See Suicide Prevention Coalition of Warren & Clinton Cos., Dealing with Suicide in Schools: Prevention, Intervention and Postvention—A Model Protocol 5 (2010). See also Hasenfus v. LaJeunesse, 175 F.3d 68, 69 (1st Cir. 1999) (middle school student’s suicide attempt followed seven previous attempts at school or school events).
- This hypothetical fact pattern is drawn from Sanford v. Stiles, 456 F.3d 298, 301–02 (3d Cir. 2006) (per curiam). See also Walsh v. Tehachapi Unified Sch. Dist., 827 F. Supp. 2d 1107, 1112–14 (E.D. Cal. 2011);Eisel v. Bd. of Educ. of Montgomery Co., 597 A.2d 447, 449–50 (Md. 1991). It is estimated that, for all young people, there are 100–200 attempts for each suicide death. Firearms, suffocation, and poisoning are the most common methods. See Roggenbaum, supra n. 1, at 2.
- 489 U.S. 189, 198 (1989). The other theory of substantive due process liability set forth in DeShaney for §1983 liability turns on a defendant’s special relationship with the injured plaintiff, but that theory has been uniformly rejected in the public school context. See Doe ex rel. Magee v. Covington Co. Sch. Dist. ex rel. Keys, 675 F.3d 849, 856–57 (5th Cir. 2012); Wyke v. Polk Co. Sch. Bd., 129 F.3d 560, 568–70 (11th Cir. 1997); Vidovic v. Mentor City Sch. Dist., 921 F. Supp. 2d 775, 791 (N.D. Ohio 2013).
- 159 F.3d 1253, 1257 (10th Cir. 1998).
- See Hasenfus, 175 F.3d at 73–74; Sanford, 456 F.3d at 311–12; Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701, 710–11 (7th Cir. 2002).
- 129 F.3d 560, 564–65.
- Id. at 570. See also Martin, 295 F.3d 701, 712; Vidovic, 921 F. Supp. 2d at 792.
- See e.g. Long v. Murray Co. Sch. Dist., 2013 WL 3015151 (11th Cir. June 18, 2013) (per curiam) (§504, ADA); Moore v. Chilton Co. Bd. of Educ., 2013 WL 1278525 (M.D. Ala. Mar. 27, 2013) (§504, ADA, 42 U.S.C. §12132); Vidovic, 921 F. Supp. 2d 775 (Title VI, 42 U.S.C. §2000d, Title IX).
- 827 F. Supp. 2d 1107.
- Additional claims were grounded in California constitutional, statutory, and tort law.
- In Walsh, the plaintiff put forward no §1983 claim against the school district, averting assessment of her claims against the standard of Monell v. Department of Social Services of City of New York (436 U.S. 658 (1978)) for failure to take corrective action under a district policy that manifested deliberate indifference to the plaintiff’s rights.
- See Vidovic, 921 F. Supp. 2d 775.
- Compare Johnson v. Elk Lake Sch. Dist., 283 F.3d 138 (3d Cir. 2002), with Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994).
- 457 U.S. 800, 818 (1982). See Sanford v. Stiles, 2004 WL 2579738 at *10 (E.D. Pa. Nov. 10, 2004), aff’d, 456 F.3d 298 (3d Cir. 2006) (per curiam).
- See e.g. Sanford, 456 F.3d at 313; Walsh, 827 F. Supp. 2d at 1121.
- See e.g. Wyke, 129 F.3d 560; Walsh, 827 F. Supp. 2d 1107; Est. of Girard v. Town of Putnam, 2011 WL 783599 (Conn. Super. Jan. 28, 2011); Eisel, 597 A.2d 447. See generally Perry A. Zirkel & Richard Fossey, Liability for Student Suicide, 197 Educ. L. Rep. 489 (2005).
- 597 A.2d 447.
- Id. at 456.
- See Rogers v. Christina Sch. Dist., 73 A.3d 1 (Del. Super. 2013) (school not a custodian); Mikell v. Sch. Admin. Unit No. 33, 972 A.2d 1050, 1057 (N.H. 2009) (teacher’s comments not outrageous enough, school not a custodian, counselor did not assume care of student). But see Brooks v. Logan, 903 P.2d 73 (Idaho 1995) (potential for liability arising out of schools’ statutory duty to act reasonably in the face of foreseeable risks of harm to students).
- Wyke, 129 F.3d 560, 571–75.
- 73 A.3d at 16.
- 2011 WL 783599. State antibullying statutes and related school policies may also provide ground for liability for unremedied harassment or bullying. See Lynn M. Daggett, Book ’Em?: Navigating Student Privacy, Disability, and Civil Rights and School Safety in the Context of School-Police Cooperation, 45 Urb. Law. 203 (Winter 2013). Abusive conduct by counselors may give rise to district or administrative liability for negligent hiring, retention, and supervision claims. See e.g. C.A. v. William S. Hart Union High Sch. Dist., 270 P.3d 699 (Cal. 2012).
- See e.g. Carrier v. Lake Pend Oreille Sch. Dist. #84, 134 P.3d 655 (Idaho 2006); Killen v. Indep. Sch. Dist. No. 706, 547 N.W.2d 113 (Minn. App. 1996). But see S.W. v. Spring Lake Park Sch. Dist. No. 16, 580 N.W.2d 19 (Minn. 1998) (district’s failure to adopt policy is not immunized, overruling inconsistent determination in Killen).
- See e.g. Sanford, 456 F.3d 298; Grant v. Bd. of Trustees of Valley View Sch. Dist. No 365-U, 676 N.E.2d 705 (Ill. App. 3d Dist. 1997); Fowler v. Szostek, 905 S.W.2d 336, 342 (Tex. App. 1st Dist. 1995). See generally Zirkel & Fossey, supra n. 18. Also, state tort actions against municipal entities may require formal notice of claim, with a short window of opportunity for service. See e.g. John R. v. Oakland Unified Sch. Dist., 769 P.2d 948 (Cal. 1989); Courtney Nicole R. v. Moravia C. Sch. Dist., 816 N.Y.S.2d 626 (N.Y. App. Div. 4th Dept. 2006).
- See Moreno-Lieberman v. City of N.Y., 958 N.Y.S.2d 258 (N.Y. Sup. Ct. 2012); Tarasow v. NYC Dept. of Educ., 873 N.Y.S.2d 515 (N.Y. Sup. Ct. 2008).
- Family Education Rights and Privacy Act of 1974, 20 U.S.C. §1232g (2013). See also Alexander v. Herbert, 150 F.R.D. 690 (M.D. Fla. 1993).
- See 20 U.S.C. §1232g(h)(2).
- See 20 U.S.C. §§1232g(a)(4)(B)(ii), g(a)(4)(B)(iv), g(b)(6), g(i)(1);Staub v. E. Greenbush Sch. Dist. #1, 491 N.Y.S.2d 87 (N.Y. Sup. Ct. 1985).
- Hampton Bays Union Free Sch. Dist. v. Pub. Empl. Rel. Bd., 878 N.Y.S.2d 485, 488 (N.Y. App. Div. 3d Dept. 2009); Ellis v. Cleveland Mun. Sch. Dist., 309 F. Supp. 2d 1019 (N.D. Ohio. 2004).
- See Cox v. Warwick Valley C. Sch. Dist., 654 F.3d 267 (2d Cir. 2011).
- See e.g. Mavroudis v. Super. Ct., 162 Cal. Rptr. 724 (Cal. App. 1st Dist. 1980). But see JD v. Williston Northampton Sch., 826 F. Supp. 2d 328 (D. Mass. 2011).
- See G-D ex re. A.D. v. Bedford C. Sch. Dist., 907 N.Y.S.2d 436 (N.Y. Sup. Ct. 2010).
- See e.g. Suicide Prevention Coalition of Warren & Clinton Cos., supran. 3. See generally Katherine J. Lazear et al., Youth Suicide Prevention School-Based Guide—Overview (U. of So. Fla., College of Behavioral & Community Scis., Louis de la Parte Fla. Mental Health Inst., Dept. of Child & Fam. Studies 2012),//theguide.fmhi.usf.edu/pdf/2012PDFs/Overview.pdf.
- 129 F.3d at 574. See also Est. of Girard, 2011 WL 783599.