Privacy vs. Security

Senate committee considers whether colleges need liability protection when dealing with some students' records.
April 24, 2007

Even before all the details emerged in last week’s mass shootings at Virginia Tech University, a specific chain of responses seemed certain: The university would announce an internal investigation, an outside law enforcement agency would commence its own, colleges across the country would promise to revisit their safety procedures and Congress would hold a hearing.

On Monday, the last link came together, as the Senate Committee on Homeland Security and Government Affairs invited higher education and public health officials to discuss ways of guarding against future violent outbursts on college campuses -- a bipartisan issue if there ever was one. And it took little time for the committee leadership to put the privacy and security issues in some context.

"We should examine the difficult question of whether or not laws and regulations needed to protect sensitive personal medical information make it too difficult to share vital information with campus law enforcement officials about potentially lethal threats," said Sen. Susan M. Collins (R-Maine), the ranking Republican on the committee. "It just strikes me as a terrible dilemma. Often times there are warning signs that students are in need of help ... Are we striking the right balance?"

Sen. Joe Lieberman (I-Conn.), chairman of the committee, said he agreed that the Family Educational Rights and Privacy Act of 1974, intended to protect the confidentiality of student records, often puts college officials in a precarious spot: Share personal student health information and face potential legal action or do nothing and face the possibility of lawsuits for inaction.

"If you had the capacity to single-handedly amend one of these federal laws, (the other of which is the Health Insurance Portability and Accountability Act of 1996 that ensures privacy of health records) what would you do?" Lieberman asked.

After a few punts from the panelists, Irwin Redlener, director of the National Center for Disaster Preparedness at Columbia University, made a clear policy proposal: Add to the federal privacy laws conditions under which a college would be protected from liability if it shows that it is acting in the name of public safety. He said the amendment might dictate that under certain circumstances, a college could share personal health information if it sets up an interdisciplinary panel comprising administrators, health experts and ethics specialists to be sure that the release is justified. That, Redlener said, would be an appropriate federal response that could also be a model for states.

"If institutions fear legal recrimination, a federal law adjustment might help," he said.

When Redlener approached Lieberman and Collins after the hearing, he said both were amenable to the suggestion. Minutes before, Collins told panelists that since it would be impossible for any federal amendment to take into account all possible scenarios of safety breaches, "the answer is perhaps to look at liability protection."

Russ Federman, director of counseling and psychological services at the University of Virginia, said he would "sleep better" if he knew he had liability protection, particularly, he added, because FERPA and HIPAA are "defined vaguely" and generally don't allow clinicians to communicate with other university staff unless the student is seemed to be an "imminent danger."

Federman shared a policy at Virginia in which the dean of students can call for the interim suspension and involuntary hospitalization of a student without a court order so long as it's proven that the student is displaying potentially damaging behavior. Steven J. Healy, president of the International Association of Campus Law Enforcement Administrators and director of public safety at Princeton University, said many states would allow such an arrangement. He added that he would like to see more flexibility to share information about students, especially when they transfer colleges.

Several panelists, including David Ward, president of the American Council on Education, said it's important to keep in mind that overarching policies on how colleges should deal with troubled students are often ineffective, because each campus has a different infrastructure and method of responding to such information. "The degree to which we can contain extreme events is small," he said.

Federman agreed, saying that even if students are removed from campus, they may still be a danger. Many times, because of limited resources, university counseling services are directed toward crisis intervention, stabilization and brief treatment approaches rather than follow-ups with students, he added.

"It's interesting that we spent the most time talking about dealing with troubled students than what happens when all of that fails," said Lieberman, adding that he is unsure what the federal role should be in helping law enforcement prevent campus crime.


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