Student Suicide: Legal and Ethical Implications (2023)

A school counselor calls the ASCA office concerned about a colleague who conducted a suicide investigation, found a child not suicidal, and sent her home on the school bus. A mother is distraught when her daughter is named as her friend's "safe person" in a suicide contract. An administrator calls in after the suicide of a student whose disturbing journal entries weren't identified as suicidal.

These are just a few examples of questions received by the ASCA Ethics Committee that reflect everyday occurrences in the life of school counselors.

Suicide is the third leading cause of death among 15-24 year olds. According to a 2010 study by the Centers for Disease Control and Prevention, 13.8% of American high school students had seriously considered suicide in the past 12 months, and 6.3% said they had attempted suicide during that time . School counselors often get the first outcry; However, there is still confusion as to what action to take. Reviewing court decisions after student suicide makes sense from the dual and distinct perspective of legal requirements and ethical norms.

Eisel vs. Montgomery County Board of Education
Legal Analysis: In Eisel vs. Board of Education of Montgomery County (1991), a 13-year-old college student died in an apparent murder-suicide pact with another college student. Her father sued the school district and two of its school counselors, arguing that his special relationship with his daughter placed him and his wife under a duty to report suicidal thoughts. The lower court dismissed the father's claim. However, on appeal, the Maryland Supreme Court sent him back to the lower court for trial. The appeals court cited the foreseeability of the harm as a key factor in determining whether school officials were required to warn the student's parents. Ultimately, the lower court jury ruled that the school counselors were not responsible for the student's death. However, the Eisel case provided some critical insights.

Ethical review: In the Eisel case, the court recognized that school counselors hear a lot about suicidal thoughts and that not all threats are substantive; however, "so great is the consequence of risk that even a relatively small possibility of suicide may be sufficient to establish a duty" (Eisel v. Board of Education of Montgomery County, 1991). School counselors act in loco parentis, meaning that it is their duty to protect the safety of students at school and to use reasonable care to give parents the opportunity to protect their children.

The ASCA Ethical Standards for School Counselors require school counselors to “recognize that working with minors in a school environment requires school counselors to work with the student's parent/guardian as much as possible. Sometimes students cheat to avoid another exam and/or parental notification,” so we played it safe. When school counselors work with a potentially suicidal student, the end result should always be to notify the parent/guardian.

School counselors consult and are constant consumers of legal and ethical information and seek help from school peers, administrators, and attorneys. The complexities of the legal world are less daunting and security is increased by consulting with other professionals.

Post-Eisel case law on negligence with immunity from civil liability
Legal Analysis: Several instances of malpractice following a student's suicide have occurred since the Eisel decision, but the reasons and results fit the general pro-educator pattern. Regardless of the action or inaction of the school counselor, in many states, government immunity serves as an effective defense for the school district and officials. For example, in Killen vs. Independent School District #706 (1996), a ninth grader killed herself with a gun in her home. Although the school counselor advised the parents that their daughter had expressed suicidal thoughts and recommended counseling, the parents claimed that the school counselor did not inform them when the daughter later made a more specific statement about suicide. The Minnesota Court of Appeals upheld the lower court's dismissal based on the government's immunity provisions.

Likewise in Grant v. Board of Trustees of Valley View School District (1997), Friends of a student told the school counselor about his suicidal thoughts and drug overdose. The school counselor urged the mother to take him to a hospital for drug treatment. Later that day, the student jumped to his death from an overpass. Her mother claimed the school counselor didn't tell her about her suicidal expressions. An Illinois appeals court upheld the lower court's dismissal, contending that public schools and their employees enjoy immunity unless their misconduct was willful or arbitrary.

Ethical Review: School counselors speak to parents about a child's explicit or tacit suicidal thoughts. When a student makes thinly veiled threats of suicide, school counselors avoid raising the issue; Instead, they ask the difficult questions. Many suicidal students want an end to their suffering, not their life, and answer "no" when asked if they are considering suicide. However, this answer does not eliminate the risk. Use open-ended questions like "What do you think about life and death?" This approach can serve as the first step in getting an at-risk student the help they need. Parents need to understand that utterances of suicide or other warning signs require vigilance. School counselors should document that they contacted the parents and, if possible, have a witness to the conversation. The school principal or other administrator can add leverage and urgency to the conversation when parents are reluctant to act. School counselors use their best judgment in these emotionally charged situations and avoid prioritizing documentation over the parents' feelings and well-being. However, ask for a parent's signature at the first appropriate opportunity.

Post-Eisel jurisprudence without state immunity
Legal Analysis: Even where a state does not have applicable state immunities, wrongdoing claims have also been largely unsuccessful. A federal appeals court upheld the dismissal of a suit brought by the mother of an eighth grader who hanged herself (Scott v. Montgomery County Board of Education, 1997). The school psychologist met with the student about two months before his death and assessed him as not directly self-harmful and did not inform the student's parents. The court came to the conclusion that the alleged causal connection with the school psychologist was not sufficient and that the mother's allegation of neglect was not to be classified as an educational error.

A Wisconsin appeals court found that the parents' action failed for lack of an essential element of a negligence action—causality—(McMahon v. St. Croix Falls School District, 1999). In this case, a student from the school was absent and died of self-immolation. One of her classmates claimed that she told a school counselor that he was planning to skip class and that he said something about being "suicidal." The Wisconsin Court of Appeals ruled in favor of the school's defendants because suicide is an intervening variable under Wisconsin law that "breaks the line of causality."

In Mikell vs. School Management Unit #33 (2009), a student allegedly told a teacher's assistant that he "wanted to blow his brains out." The school counselor met with the student, informed the parents that the student could remain at school, and had the student sign a "safety agreement." The school counselor did nothing, and two months later the student hanged himself. The New Hampshire Supreme Court ruled that the school authorities were not responsible for the student's death because they did not have custody of the student as they would at a hospital, nor did they engage in "extreme and outrageous" behavior that the "resulted in an uncontrollable urge to commit suicide or prevented the deceased from realizing the nature of his act".

Armijo vs. Wagon Mound Public Schools (1998) is the only published decision recognizing a Section 1983 cause of action against school authorities for the suicide of a student. A New Mexico school principal suspended a student and ordered a school counselor to escort him home. His parents returned home later that day to find him dead from a self-inflicted gunshot wound. Earlier in the day he reportedly told a school assistant that he might be "better off dead". The Tenth Circuit Court of Appeals allowed the case to proceed because a jury was able to determine that the principal and counselor left him at home alone with access to a firearm when they knew he was having suicidal thoughts. The final outcome of this case was not released, and the school district (the deepest pocket) was the accused, not the school counselor.

Ethical Review: School counselors find little comfort in the courts' reluctance to try school counselors and their districts in relation to student suicide. School counselors want to avoid defending their lawsuits in court, but more importantly, they want to avoid the death of a student. It's daunting to worry about all the issues that crop up in a school counselor's day-to-day life, but suicide is one of those commitments that needs to be prioritized for immediate attention. A student's statement "tired and tired of life" is reason enough to trigger immediate action. "In adolescence, indirect cues may be offered through jokes or references in schoolwork, particularly creative writing or artwork." Children seeing the world concretely may not know how to express these feelings verbally or in writing.

If a school counselor conducts a suicide analysis, informally or formally, and determines that the student is at low risk of suicide, the school counselor must still contact the student's parents. ASCA's ethical standards require that school counselors "report risk assessments to parents when they emphasize the need to act on behalf of an at-risk child." If you tell the parent that you have spoken to their child and believe that it is okay for the child to stay in school, the parent will likely perceive their child as having a low risk of suicide.

Another controversial practice is the development of student suicide contracts by school counselors, as in the Mikell case. There is little empirical evidence that contracts are an effective tool for suicide prevention. In addition, the use of a suicide contract implies that the school counselor is keeping the student safe. The word "contract" can give the impression of a binding agreement. However, a suicidal person is often unable to consent to signing a contract. Using suicide contracts can have the opposite effect and lead to legal action. If a school counselor believes it is in the student's best interest to put something down on paper, ask the student any goals, comments of hope, what is working right now, or which adult to ask for help.

Well-meaning school counselors may enlist a close friend of the student as a helper and identify that person as such in a non-injurious contract; However, this can overwhelm a colleague with feelings of responsibility for the life or death of another student. Making students aware of what to do if a friend shares this information is a more effective part of school suicide prevention plans. The Armijo decision deserves special attention. The school counselor had to convince the principal that, given the child's emotional state, the best course of action would be to wait until the student could be placed in the protective custody of his parents, which is far more important than immediate punitive action. Taking or sending home a very agitated or emotional child without parental supervision is a dangerous practice.

It is important for school counselors to have a supportive counseling network in place long before they actually need it. When working with students at risk of suicide, school counselors should make best efforts to provide counseling recommendations to parents/guardians until placement is secured for that student. School counselors need to be culturally sensitive when working with families to provide additional help. When school counselors and crisis team members encounter unresponsive parents, they may need to hand over control to other agencies, e.g.

Schools act responsibly when they have suicide prevention and intervention plans with regular services to prepare all educators—teachers, administrators, security guards, cafeteria workers, janitors, bus drivers, secretaries, support staff, and service workers—on procedures for referral of suicidal students for help .

Parents were rarely able to establish responsibility for the student's suicide, and none of the known decisions resulted in an educator being held accountable. Of course, there may be unpublished cases or agreements to the contrary, and case law may change in the future. While the precedents to date greatly reduce any undue fear of school counselor liability, awareness of the legal rationale behind court decisions serves as a guiding principle for school counselors when making decisions that may save student lives in the future. Framing the best practice discussion around the court's arguments gives school counselors the opportunity to apply the court's judgments to their practice.

Eisel and the ensuing lawsuits provided school counselors with powerful and prophylactic lessons regarding suicidal students. School counselors, with their specialized training and status as local parents, have a high standard of care when a student's suicide is a remote possibility. School counselors should always reach out to parents and direct them to the appropriate resources that will enable them to seek help for their child. Confidentiality trumps the death of a child. Calling Parents upholds school counselors' most important commitment to students: first and foremost, do no harm.

Carolyn Stone, Ed.D., is an Associate Professor at the University of North Florida and Chair of the ASCA Ethics Committee. She can be reached at cstone@unf.edu. Perry A. Zirkel, J.D., Ph.D., is Professor of Education and Law at Lehigh University and can be reached at zirkel@lehigh.edu. For references please contact the authors.