Taking a Bullet: Are Colleges Exposing Themselves to Tort Liability by Attempting to Save Their Students?

• Publication year: 2010

Georgia State University Law Review

Volume 29 j 6

Issue 2 Winter 2013

4-3-2013

Taking a Bullet: Are Colleges Exposing Themselves to Tort Liability by Attempting to Save Their Students?

Eric A. Hoffman

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Recommended Citation

Hoffman, Eric A. (2013) "Taking a Bullet: Are Colleges Exposing Themselves to Tort Liability by Attempting to Save Their Students?," Georgia State University Law Review: Vol. 29: Iss. 2, Article 6. Available at: http://digitalarchive.gsu.edu/gsulr/vol29/iss2/6

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TAKING A BULLET: ARE COLLEGES EXPOSING THEMSELVES TO TORT LIABILITY BY ATTEMPTING TO SAVE THEIR STUDENTS?

Eric A. Hoffman

Introduction

At 6:47 a.m. on April 16, 2007, Seung-Hui Cho lurked outside West Ambler Johnston Hall at Virginia Polytechnic Institute (Virginia Tech).¹ Fifteen minutes later, Cho started his cold-blooded killing spree.² He began by shooting a female student and then killing a resident assistant who responded to the sound of the gunshots.³ Cho then returned to his residence hall across campus.⁴ Over the next hour and forty-five minutes, he changed out of his bloody clothes, erased his university e-mail account, and mailed a package to NBC News containing a written diatribe and videos "expressing] rage, resentment, and a desire to get even with [his] oppressors."⁵ At approximately 9:15 a.m., ten minutes after second period classes started in Norris Hall, Cho slipped into the building and chained the exit doors shut behind him, preventing any escape.⁶ At 9:40 a.m., the first gunshot rang out in Norris Hall.⁷ For the next excruciating eleven minutes, Cho methodically invaded classroom after classroom, indiscriminately gunning down professors and students alike, before finally turning the gun on himself at 9:51 a.m.⁸ In total,

* J.D. Candidate, Georgia State University College of Law, 2013. Assistant Dean and Director of Student Conduct, Emory University. Thanks to Dean Kelly Timmons for her immeasurable feedback and guidance, and thanks to Dennis Gregory, Ph.D. and Brett Sokolow, J.D. for their advice. Special thanks to my family—Sharon, Nathan, and Cohen—for their unending love, patience and support.

1. Va. Tech Review Panel, Mass Shootings at Virginia Tech 25 (2007), available at http://www.governor.virginia.gov/tempcontent/techPanelReport-docs/FullReport.pdf.

2. Id.

3. Id.

4. Id.

5. Id. at 25-26.

6. Id. at 26.

7. Va. Tech Review Panel, supra note 1, at 27.

8. Id. at 27-28.

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Cho killed thirty-two people and wounded another seventeen⁹— forever altering not only the lives of the victims and their loved ones but also the landscape of American higher education.

Compared to the rest of the country, American universities¹⁰ are relatively insulated from incidents of violent crime.¹¹ Similarly, suicide rates among college students are roughly half that of comparably aged nonstudents.¹² Although violent incidents on campuses receive significant publicity and national awareness, such occurrences have remained relatively consistent over time.¹³ Despite the relative safety of America's campuses, shootings involving

9. Id. at 29.

10. Throughout this Note, the terms colleges, institutions, and universities are used interchangeably and include any institutions of higher education, including community colleges, two- and four-year colleges and universities.

11. The United States Department of Education reported eighteen murder deaths on college campuses in 2009. U.S. Dep't of Educ., Office of Postsecondary Educ., Get Aggregated Data for a Group of Campuses, The Campus Safety and Security Data Analysis Cutting Tool, http://ope.ed.gov/security/GetAggregatedData.aspx (last visited Sept. 6, 2011) (search "Location of Campus" for "Any"; then follow "Continue" hyperlink; search "Reporting Year 2009" and "Criminal Offenses—On campus"). In comparison, the Federal Bureau of Investigation (FBI) reported 13,636 murders for the entire nation. U.S. Dep't of Justice, Fed. Bureau of Investigation, Expanded Homicide Data, Crime in the United States: 2009, at 1, http://www2.fbi.gov/ucr/cius2009/documents/expand homicidemain.pdf (last visited Sept. 6, 2011). In 2009, over 19 million students were enrolled in America's universities, whereas according to the United States Census, the national population was approximately 308 million in 2010. Nat'l Ctr. for Educ. Statistics, Projections of Education Statistics to 2019, at 57 tbl.20 (2011), available at http://nces.ed.gov/pubs2011/2011017.pdf; U.S. Census Bureau, 2010 Census Data, U.S. Census 2010, available at http://2010.census.gov/2010 census/data/ (last visited Oct. 8, 2012). This correlates to an approximate per capita murder rate of .089 per 100,000 college students, and approximately 4.4 murders per 100,000 people in the general U.S. population.

12. College students commit suicide "at a rate between 6.5 and 7.5 per 100,000," which is "approximately half the rate for nonstudent college-aged adults." Campus Data: Prevalence, Suicide Prevention Res. Ctr., http://www.sprc.org/collegesanduniversities/campus-data/prevalence (last visited Sept. 6, 2011).

13. U.S. Dep't of Educ., supra note 11 (search "Location of Campus" for "Any"; then follow "Continue" hyperlink; search "Reporting Year 2003" and "Criminal Offenses—On campus"; then repeat for "Reporting Year 2006" and "Reporting Year 2009"); see also Tim Weldon, Campus Violence and Mental Health—Protecting Students and Students' Rights a Delicate Issue, Knowledge Center (Oct. 20, 2009, 12:00 AM), http://knowledgecenter.csg.org/drupal/system/files/MentalHealth-CampusSafety.pdf (reporting colleges are "less prone to violent crimes than society in general"). Between 2001 and 2009, the Department of Education reported an average of approximately eighteen murders per year on college campuses. U.S. Dep't of Educ., Office of Postsecondary Educ., supra note 11 (search "Location of Campus" for "Any"; then follow "Continue" hyperlink; search "Reporting Year 2003" and "Criminal Offenses—On campus"; then repeat for "Reporting Year 2006" and "Reporting Year 2009"). This data includes the anomaly of the Virginia Tech massacre where Cho murdered thirty-two people. See id.

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multiple victims—such as at Virginia Tech¹⁴—nonetheless occur and are not new phenomena.¹⁵

Just as the terrorist attacks of September 11, 2001 led to significant scrutiny of existing procedures and prompted dramatic steps to increase national security, the Virginia Tech tragedy resulted in substantial scrutiny of university policies and procedures at the campus,¹⁶ state,¹⁷ and national levels.¹⁸ Each review panel recommended changes for how colleges should prevent and respond to emergencies.¹⁹ In response to the public outcry following Virginia

14. See, e.g., John M. Broder, MASSACRE IN VIRGINIA; 32 Shot Dead in Virginia; Worst U.S. Gun Rampage, N.Y. Times, Apr. 17, 2007, at A1, available at http://query.nytimes.com/gst/fullpage.html? res=9F01E1D7113FF934A25757C0A9619C8B63. Also, on February 14, 2008, Northern Illinois University alumnus Steven Kazmierczak opened fire in a classroom and shot sixteen people, killing five, before committing suicide. Susan Saulny & Jeff Bailey, Grief and Questions After Deadly Shootings, N.Y. Times, Feb. 16, 2008, at A13.

15. See Helen Hickey de Haven, The Elephant in the Ivory Tower: Rampages in Higher Education and the Case for Institutional Liability, 35 J.C. & U.L. 503 (2009); see also Major School Shootings in the United States Since 1997, Brady Ctr. to Prevent Gun Violence, http://www.bradycampaign.org/xshare/pdf/school-shootings.pdf (last updated Dec. 17, 2012).

16. A study by the Midwest Higher Education Compact revealed that institutions completed internal audits of emergency procedures, campus notification systems, and campus discipline and mental health policies. See Chris Rasmussen & Gina Johnson, Midwestern Higher Educ. Compact Report, The Ripple Effect of Virginia Tech: Assessing the Nationwide Impact on Campus Safety and Security Policy and Practice 3 (Ann Grindland ed., 2008), available at http://www.mhec.org/policyresearch/052308mhecsafetyrpt_lr.pdf.

The tragedies also prompted increased discussion about gun safety, mental health issues, and student privacy. Id.

17. State task forces recommended improved emergency protocols, notification and response, increased funding and capacity for mental health services, improved security measures and training, and implementation of threat assessment strategies on campus. See Va. Tech Review Panel, supra note 1; see also Fla. Gubernatorial Task Force for Univ. Campus Safety, Report of the

Gubernatorial Task Force for University Campus Safety (2007), available at http://cra20.humansci.msstate.edu/Florida%20Campus%20Violence%20Report.pdf (reporting outcome of Florida state task force review and recommendations).

18. National task forces recommended clarification of privacy laws, increased capacity for mental health services, improved emergency management procedures and communication systems, increased enforcement of gun laws, and implementation of behavioral intervention and threat assessment strategies. See Michael O. Leavitt, Margaret Spellings & Alberto R. Gonzales, Report to

the President on Issues Raised by the Virginia Tech Tragedy (2007), available at http://www.hhs.gov/vtreport.pdf; see also Task Force on Sch. and Campus Safety, Nat'l Assoc. of Attorneys Gen., Report and Recommendations (Nick Alexander ed., 2007), available at http://www.doj.state.or.us/hot_topics/pdf/naag_campus_safety_task_force_report.pdf.

19. Recommendations...