Many people have heard of Tarasoff “Duty to Warn” laws, although the back story and subsequent legislative rollercoaster isn’t as well-known. Given the number of states that continue to mandate zero tolerance policies in schools, it is time to remind our lawmakers of the risks of legislative reactions to tragic events.
In 1968, University of California student Prosenjit Poddar pursued Tatiana Tarasoff and was rebuffed. When Mr. Poddar voiced intent to harm his romantic interest, his roommate encouraged him to seek therapy at the campus counseling center. Clinicians at the counseling center, concerned about the threats, eventually decided to call the police and recommended that Mr. Poddar be involuntarily hospitalized. When law enforcement officials investigated they determined that there was no risk and did not follow through on initiating hospital admission. Mr. Poddar tragically killed Ms. Tarasoff.
In 1974, the Supreme Court of California issued its first decision in the case of Tarasoff v. the Regents of the University of California and determined that mental health clinicians have a ‘duty to warn’ potential victims. While well-intentioned, the strict and limiting wording used in this decision prompted criticism from the National Association of Social Workers, the American Psychiatric Association, and other professional groups. The court vacated, i.e. erased, its decision and rescheduled the case for hearing. In 1976, the Supreme Court of California issued its official Tarasoff decision that determined that mental health professionals instead have a ‘duty to protect’ potential victims.
While this may seem to be semantic hair-splitting, the differences between ‘duty to warn’ and ‘duty to protect’ are legally and clinically profound – and serve as a good comparison to zero-tolerance policies in schools.
Following the Tarasoff case, a host of state legislative bodies across the nation focused on the wording of the vacated 1974 decision and imposed upon mental health professionals a legal ‘duty to warn’. While these legislative efforts appeared as well-intentioned as the 1974 Tarasoff wording, they were also just as misguided. Such laws were widely viewed as knee-jerk reactions to an unfortunate event that unnecessarily tied the hands of front-line professionals and, paradoxically, did not increase public safety.
The same can be said for secondary school ‘zero-tolerance’ mandates. In reaction to school violence many states enacted these policies which are, in effect, ‘duty to expel’ laws that undermine education, safety, civil rights, and the clinical expertise of the ground-level professionals serving our children.
Initial post-Tarasoff ‘duty to warn’ laws required a clinician to warn a potential victim – even if the threat was vague or temporary, even if better options existed, even if warning a potential victim wouldn’t necessarily protect anyone, and even if making such phone calls carried its own, possibly worse, burdens and risks by reversing clinical progress and eroding client and public confidence in the mental health system.
While most people agree that reaching out to Ms. Tarasoff would have been clinically appropriate in the afore-mentioned case, there are many instances in which calling a potential victim is not appropriate when other options are available. If a woman whose schizophrenia is typically well-managed contracts the flu and forgets her medication and makes vague threats to the Pope, our best option in protecting the Pope is to arrange for hospitalization, not make a phone call to Rome.
Zero-tolerance policies in schools carry similar limitations and burdens. We are well-familiar with the stories of children suspended or expelled because school administrators’ hands are tied by zero-tolerance policies: the 1st grader who plays cops and robbers on the playground and makes a gun with his hand; the bullied child who eventually pushes his tormentor; the little girl who went off her medication after a bout of the flu and her ADHD is topsy-turvy for several weeks. These children, removed from their learning environment, then carry the additional burdens of stigma, shame, and compromised educational opportunities.
Wisely, most states have since rescinded post-Tarasoff ‘duty to warn’ laws and replaced them with ‘duty to protect’ mandates. For example current Ohio law recognizes that mental health clinicians should be able to utilize their professional knowledge and familiarity with each individual case to determine the best course of action – whether hospitalization, increasing level of care, notifying police, and/or warning a potential victim (Ohio Revised Code 2305.51).
Ohio and other states need to similarly replace zero-tolerance mandates. Doing so does not mean that schools no longer have the option to suspend or expel a child when warranted, rather it allows schools to determine, on a case-by-case basis and with input from trained professionals, what is the best course of action for the child and society. As of this writing Ohio Senate Bill 167, introduced by Senator Tavares and Co-Sponsored by Senators Schiavoni, Brown and Sawyer to rescind existing zero-tolerance mandates in the states, will most likely die from inattention. Social workers and other professionals need to encourage all states to evacuate ‘duty to expel’ laws and replace them with ‘duty to serve and educate’ laws.
