PROFESSOR DE HAVEN: INSTITUTIONAL INDIFFERENCE

Professor Helen de Haven was a member of the founding faculty of the Appalachian School of Law in 1997, was the first Dean of Students at the school 1999-2000, and was at the school on January 16, 2002—the day Peter Odighizuwa shot and killed Dean Anthony Sutin, Professor Thomas Blackwell, and student Angela Dales. Odighizuwa also wounded three other students before being wrestled to the ground by unarmed students. Professor de Haven is currently an Associate Professor of Law, John Marshall Law School-Atlanta.

Professor de Haven’s first-hand experience with the horrors of a school shooting, coupled with her legal background and professional credentials put her in a unique position to bring powerful, insightful analysis to the problem of violence on our school campuses. Her thought-provoking and well-researched paper, “The Elephant in the Ivory Tower: Rampages in Higher Education and the Case for Institutional Liability,” raises disturbing questions about this nation’s institutions of higher learning—specifically, the agonizingly slow pace the nation’s colleges and universities are addressing the growing problem of violence on school grounds. Professor de Haven’s article appears in The Journal of College and University Law, a peer-reviewed journal published by the Notre Dame Law School—the citation for the article is 35 JC&UL 503 (2009). Her article, unfortunately, leaves the reader with the impression that many of this nation’s schools approach the threat of gun violence on campus with apathy, confusion, and a denial of responsibility.

It is clear that 10 years after the shootings at Columbine; seven years after the killings at the Appalachian School of Law; two years after the massacre at Virginia Tech—as well as the scores of other school shootings along the way—far too many school officials, law enforcement personnel, and politicians remain mystified and perplexed over how to meet the threat of school violence. All their crocodile tears and all their hand wringing have not produced the analysis, the will, or the determination necessary to adopt effective measures to minimize the threat.

No one wants to think about—much less talk about—the prospect of school shootings. Many parents with school-age children run away from the subject; the subject is too painful for them to contemplate. Yet they are precisely the people who should be thinking—and acting—to prevent future violence. I also am struck by how little so many in positions of authority know about their duties, rights, and responsibilities when it comes to individuals on school grounds; individuals who may be a threat to themselves or others. True, there has been some progress; some school authorities, law enforcement officials, and politicians are making progress, but they are in the minority.

The thesis of Professor de Haven’s article is:

“It (the article) supposes that there is a duty inherent in the academic enterprise to safeguard the class rooms, hallways, and other common spaces in which learning occurs. It (the article) suggests that an academic institution’s failure to reduce predictable violence should create liability to the victims and a duty to mitigate their suffering. It (the article) joins the ranks of legal scholars who argue that we must develop a model of shared responsibility that better serves the fundamental purposes of higher education than the present arm’s length relationship between most schools and their students.”

She further asserts that, “Though they are still relatively uncommon, school shootings in higher education are happening more frequently, and they are likely to increase unless we in the academy learn from out collective history. We need a new consensus about how best to keep ourselves safe without destroying academic freedoms and pedagogical values that best define us.”

Having read Professor de Haven’s words and examined the events surrounding school shootings here in Virginia, I can only say that unfortunately the academic community is far from reaching a consensus on how best to tackle the problem of keeping our schools safe. Here in Virginia, for example, school officials at both the Appalachian School of Law and Virginia Tech did not sufficiently heed the concerns and warning of faculty members. When schools ignore faculty expressions of fear for their personal safety, as well as for the safety of their students, something is terribly, terribly wrong!

At both the Appalachian School of Law and Virginia Tech, school officials responded to warnings with attitudes ranging from sarcastic indifference to bureaucratic bumbling:

According to court documents filed in the Wise County, Virginia, then-President of the Appalachian School, Lucius Ellsworth, responded to female faculty members concerns over the threatening behavior of Peter Odighizuwa by saying, “You women and your hormones and your intuition … there is nothing for you to be afraid of … it will be ok.” A few weeks later, Odighizuwa killed three people and wounded three others.

At Virginia Tech, there is a long list of missed opportunities to get Cho the treatment he needed at the Cook Counseling Center. Cho contacted the center several times seeking help. Yet, when he sought out the center’s help he was triaged over the phone twice and when he met with a counselor in person, he failed to receive a meaningful assessment or diagnosis. Incredibly, all records of Cho’s dealings with the school’s counseling center have been “lost.” Indeed, one professor saw Cho as such a threat, that she threatened to resign unless he was remove from her class—and the counseling center has lost all its records on Cho.

On the shooting at the law school, Professor de Haven comments, “There were also larger questions about the integrity of its student retention practices, its lack of resources for dealing with problematic students, its internal staff relations and communications, and its tolerance for uncivil and threatening behavior.” Professor de Haven’s paper examines five other school shootings in addition to the law school and Virginia Tech. When I read her words, I was struck by the fact that the same unbelievable and enigmatic behavior the schools in Virginia could be said of nearly all the five other schools she examines.

“… In some cases it is hard to see what more the school could have done. Other cases raise serious questions about the fundamental inadequacy of the institutional response to early warning signs, to the immediate peril, and/or to the individual and community casualties.”

“… Though they are still relatively uncommon, school shootings in higher education are happening more frequently, and they are likely to increase unless we in the academy learn from our collective history. We need a new consensus about how best to keep ourselves safe without destroying the academic freedoms and pedagogical values that best define us.”

One of the most interesting assertions made by Professor de Haven deals with the reluctance of institutions of higher learning to publicly examine or even acknowledge the role and duty they have to protect against and prevent violence. “Despite the high settlement rate, institutions of higher education have never acknowledged either that the nature of their relationship with students or that the nature of the educational process creates a duty to protect academic space from violent conduct by members of the academic community. Since they resist a duty to identify or prevent violent behaviors arising in the academic context, they are also able to argue in almost any specific case, that violence produced or exacerbated by the perpetrator’s educational experience was not foreseeable. …”

Professor de Haven’s words imply that many in the academic community harbor one or both of the following: an inexplicable naiveté or a callous disregard for human life. I would also not rule out an element of bureaucratic incompetence and mediocrity. In fact, reading some of the explanations and statements put out by individuals defending the actions leading up to, during, and following the shootings at the Appalachian School of Law and Virginia Tech University, I could not help but wonder, “Are these schools run by carnival shills?” For example, in the case of both schools, faculty members expressed fear for their personal safety to senior management—the schools both deny prior knowledge that the killers were a threat. A particularly distasteful action by both schools was to brag about the fact that the shootings had worked to the schools’ advantage and appeared to have a net positive affect on recruitment. Bragging about personal gain at the expense—death—of others is morally questionable.

“Nevertheless, schools have risked enough litigation about such events to produce a small and somewhat disjointed body of tort theories supporting university liability for student injury when the violence was foreseeable, the university had the power to influence the outcome, and the student victim was innocent of wrongdoing.”

Indeed, Professor de Haven asserts: “… universities have a legal duty as well as a professional obligation to make academic spaces as safe as they reasonably can for students. … We have not yet owned to the ways in which academic cultures ignore the legitimate safety concerns of their faculty and students, disable appropriate support services, and enable dangerous and violent student behaviors.”

Professor de Haven is not the only academic to identify a problem with institutional responses to faculty complaints about threatening students. Professor Carol Parker at the University of Tennessee and her colleagues tell the following story:

“A law professor was being stalked and threatened with death by a student who was failing his class. He and his colleague went to the administration. Sadly, he later reported, ‘They simply stuck their heads in the sand and said nothing was happening. For the administration, this do-nothing strategy was a win-win situation. If they took action, they might get sued. However, in the small chance that the student actually carried out his threat and killed the professor, we figured that they would hire a cheaper faculty member.’” (Smith, Thomas & Parker: Violence on Campus Practical Recommendations for Legal Education) Carol Parker’s article is accessible free on the Social Science Research Network (SSRN). The preceding anecdote does not appear in Professor de Haven’s article.

Reflecting on the above—disgraceful attitude of a school administration—I could not help but think that this was the exact same attitude that typified and in many respects made the shootings at the Appalachian School of Law and Virginia Tech inevitable.