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"Direct Threat" and the ADA/Section 504

The U.S. Department of Education (ED) has changed its view on the definition of "direct threat." Previously, it was understood that the exemption from Section 504 of the Rehabilitation Act and the ADA included students who pose a direct threat to themselves as well as others, providing universities with flexibility in addressing situations with students who are suicidal. As of a late October decision against Spring Arbor University, ED no longer considers students threatening harm to themselves as being covered by the "direct threat" exemption. This tracks the result of a 2010 Department of Justice (DOJ) final rule, in which the definition of "direct threat" was narrowed in the same manner. NASPA is working to set up a meeting with the ED Office of Civil Rights to discuss this change and request guidance for student affairs professionals. Until clarification comes directly from the administration or the courts, NACUA encourages institutions to ensure that policies focus on student conduct, rather than a disability, individualized assessments are made, reasonable accommodations are considered, and students are provided with due process.

More information:

Spring Arbor University decision

Comments from Brett Sokolow, The National Center for Higher Education Risk Management

2/8/2012 Member Update

Meeting with US. Department of Education, Office for Civil Rights on ADA Regulations

In response to expressed interest and concern regarding the Department of Justice's new ADA Title II regulations and the omission of "threat-to-self" from the "direct threat" definition in Section 35.139 (a), NASPA partnered with the National Association of College and University Attorneys (NACUA) for a very positive recent meeting with the U.S. Department of Education's Office for Civil Rights (OCR) on this topic. A small group of senior student affairs administrators and their general counsels joined NASPA and NACUA staff to meet with senior OCR officials on January 20 and discuss the new Title II regulations.

We're happy to report the meeting went very well. The OCR officials welcomed the input of our group and asked thoughtful questions about how this regulation is affecting our campuses.  Perhaps most importantly, they clearly understood the need for guidance in this area, and they confirmed that guidance will be forthcoming though a timeline is not certain.