On March 29, 2022, the Chronicle of Higher Education published an article referencing the “landmark decision” of Nguyen v. Massachusetts Institute of Technology, 479 Mass. 436 (2018) which reportedly prompted the Massachusetts Association of Community Colleges [MACC] to develop a system-wide protocol “to identify, assess the risk of, intervene in and respond to suicidal behavior.” See Nell Gluckman and Katherine Mangan, “The Hardest Judgment: When suicide is the risk, campuses struggle with doing too little or too much.” Chronicle of Higher Education, March 29, 2022. Attorney Jeffrey S. Beeler at Heinlein Beeler Mingace & Heineman, P.C. was counsel for the Estate of Han Duy Nguyen.
The Chronicle is not alone in noting the impact of the Nguyen decision on student safety and the operations of Institutions of Higher Education [IHEs] in relation to the risk of student suicide. In Nguyen, many Massachusetts IHEs advocated – by way of an Amicus brief — that they should owe no duty of care to students at risk of suicide. The signatory IHEs included: Amherst College, Bentley University, Berklee College of Music, Boston College, Boston University, Brandeis University, College of the Holy Cross, Emerson College, Endicott College, Harvard University, Northeastern University, Simmons College, Smith College, Stonehill College, Suffolk University, Tufts University, Williams College and Worcester Polytechnic University. The Supreme Judicial Court [SJC], in large part, rejected the deplorable position taken by the IHEs in Nguyen. Revealingly, after the issuance of Nguyen, the author of the IHE’s Nguyen Amicus brief addressed Nguyen’s impact and was quoted as stating that: “all colleges and universities are aware of the SJC’s Nguyen standard, [and] they all either have adopted or are in the process of adopting suicide protocols, not just to meet the SJC’s standards, but because they want to try to prevent student suicides to the extent possible.” Eric T. Berkman, Harvard Facing Liability for Student’s Suicide, Massachusetts Lawyers Weekly at 1 (Sept. 19, 2019).
That belated action by IHEs is cold comfort to victims’ families and much work remains to be done in further defining the law with an eye toward saving student lives.
So, what have other courts been doing in connection with the issue of student suicide since Nguyen was issued? They have, in large part, been expanding Nguyen.
In 2019, in Tang v. President & Fellows of Harvard College, 2019 Mass. Super. LEXIS 486 (Sept. 9, 2019), one the Nguyen Amici faced its own moment of truth on a motion to dismiss following a Harvard student suicide. In Tang, the court rejected Harvard’s wooden reading of Nguyen as follows:
while Nguyen establishes and defines a university’s [] duty in a case such as this, it does not insulate a university from potential liability for failing to properly discharge the limited duties it imposes. Put simply, Harvard’s argument to dismiss this case reduces Nguyen to a check-box, and that once a university checks one of the three boxes—a protocol, or if there is none, clinical care, or if that is refused, reaching an emergency contact—its duty ends regardless of how well or poorly the university fulfils its duty. That interpretation cannot be correct. Nguyen allows universities to satisfy its responsibility to suicidal students by “initiating the university’s suicide prevention protocol,” but inherent in any such response is that the protocol is appropriate. If that were not so, all that a university would have to do to avoid liability under Harvard’s theory is to draft something—anything—it can label a “protocol” and “initiate” it under appropriate circumstances (whatever initiation may mean), and thereby not only completely eliminate liability, but foreclose any discovery concerning the appropriateness of the protocol or even any questions about whether it was properly followed. This reading would undermine Nguyen’s intent to create some avenue for relief, [] in cases involving student suicide.
Tang v. President & Fellows of Harvard College, 2019 Mass. Super. LEXIS 486, *10 – *11. The Court proceeded to deny Harvard’s motion to dismiss.
In 2020, a Massachusetts Superior Court denied Bard College’s motion to dismiss a student suicide case. The suicide occurred at Bard College at Simon’s Rock in Great Barrington, Massachusetts. In the case, Anderson v. Bard College, et al., 2020 Mass. Super. LEXIS 122 (August 18, 2020), a Massachusetts Superior Court judge, while referencing Nguyen, described some of the facts as follows:
On November 11, 2016, Tessa and her roommate asked [Professor] Beaumont Biggs if they could visit her at her home. Tessa and her roommate did not feel safe on campus, as her roommate had been raped in her dorm a few days prior. Beaumont Biggs responded that she was not home but they could go to her home and wait for her. Prior to leaving for Beaumont Biggs’s house, Tessa ingested Xanax and alcohol on campus. While waiting for Beaumont Biggs to arrive, Tessa also ingested Ecstasy and marijuana at Beaumont Biggs’s home. After Beaumont Biggs arrived home, Tessa continued to smoke marijuana in her presence. Beaumont Biggs was aware that Tessa had engaged in illicit drug use prior to her arrival at Beaumont Biggs’s house. Beaumont Biggs allowed Tessa and her roommate to spend the night at her house on November 11, 2016.
The following morning, Beaumont Biggs drove Tessa and her roommate back to Bard College. She did so despite knowing that Tessa was in distress, had fears for her safety, and might engage in self-injurious behavior and illicit drug use, and that her condition was so bad that arrangements were being made to get Tessa off campus and home as soon as possible. Beaumont Biggs obtained an agreement from Tessa not to engage in self-injurious behavior before dropping Tessa and her roommate off on campus. Beaumont Biggs did not initiate Bard College’s suicide prevention protocols or connect Tessa with any Bard College mental health supports. Moreover, Bard College’s health services office was not open on weekends and Tessa could not get on-campus health services the weekend of her death. No Bard College employee informed Tessa’s parents that Tessa was at risk of suicide and self-harm or took steps to ensure that Tessa had appropriate supervision or supports available on her return to campus.
[Provost] Bickford was scheduled to meet with Tessa to follow up with her on or about Tuesday, November 15, 2016, the day Tessa was scheduled to go home. However, Tessa was last seen by friends on the evening of Sunday, November 13, 2016 heading to her room to watch television. On the morning of November 14, 2016, before class was to begin, Tessa’s roommate found Tessa dead, hanging from her dorm room ceiling. The cause of Tessa’s death was asphyxiation and the manner of death was determined to be suicide.
Anderson v. Bard College, 2020 Mass. Super. LEXIS 122, *7 – *9. The motion to dismiss was denied.
As a result of these cases in Massachusetts, and other efforts by HBMH lawyers in places like New Jersey and Connecticut there is an “emergent swing toward institutional [] liability for student suicide.” Sawthi Kella, The Imperfect Storm: College Students and Suicide, Harvard Political Review (April 8, 2022).
Other cases applying Nguyen can be found at Regents of University of California v. Superior Court, 29 Cal. App. 5th 890, 2018 Cal. App. LEXIS 1109 (Dec. 3, 2018); Fitzpatrick v. Grove School, Inc., 2021 Conn. Super. LEXIS 720 (May 4, 2021).
This trend was most recently advanced on January 22, 2024, in the Anderson case, where the Berkshire Superior Court denied, in significant part, the Defendants’ Motion for Summary Judgment as to claims for Wrongful Death seeking compensatory and punitive damages against a senior administrator at the school. This ruling paves the way for a trial in early 2025 against Bard College, the senior administrator and the Estate of one of its former Professors.
Lawyers at Heinlein Beeler Mingace & Heineman, P.C. represented the estates of the deceased students in Nguyen, Tang and Anderson. They continue the work of assisting not just the families of suicide victims but the Courts as they impose reasonable duties of care on IHEs that clearly need Court guidance that will save student lives.
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If you, or a loved one, have been harmed by the negligence of a college, university or other private school, call the lawyers at Heinlein Beeler Mingace & Heineman, P.C. for a free consultation.