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Self-endangering Students: The Public Policy Conundrum

January 29, 2014 Thomas Grace RPI

Responding to situations of student self-endangerment can be a daunting task to college administrators and counselors, particularly when the situation compromises the well-being of the larger campus community.  Campus professionals are often caught in a vortex of multiple forces including consideration for the well-being of the endangering student, the concerns of others in the campus community, the interests of the institution, scrutiny by the public/media, and the parameters established by local, state and federal policy.  Navigating the influence of each of these respective factors can create a decision making conundrum for campus counselors and administrators especially when a student’s self-endangering behavior is considered to be a function of a mental health problem.   

The circumstances under which a college may suspend, place on leave, or withdraw a student who has an actual or perceived disability is embedded in federal disability law.  The Department of Justice (DOJ) has delegated to the Office of Civil Rights (OCR) in the federal Department of Education (ED) the authority to enforce Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA). Although, as written, Title II of the ADA applied only to public institutions, the OCR has historically interpreted Title II and Section 504 as being similar in intent and informed private colleges and universities that they will be held to the same standard.  Collectively, these laws prohibit institutions of higher education from discriminating either directly or indirectly against an otherwise qualified student who has a disability by denying them access to any college program or activity.  Although a detailed discourse is beyond the scope of this blog, readers also must be aware that Section 504 and the ADA are not the only sources of federal public policy that may impact decision-making in these matters.  

Prior to March 2011, although neither Section 504 nor Title II of the ADA explicitly authorized institutions of higher education to hospitalize or place on leave a student who was deemed to present a direct threat to self or to others as a function of an underlying mental health problem, doing so was not an unusual practice.  Colleges relied upon a series of guidance letters issued by the OCR advising them that federal disability law did not preclude this course of action as long as it was based on an individualized risk assessment rather than a blanket assumption that anyone with a mental health problem inherently was dangerous.  The associated case law and OCR decisions (e.g. Woodbury University, Bluffton University, Guilford College, Marietta College and DeSales University) essentially endorsed this course of action, provided that the college first made a reasonable attempt to accommodate the student and afforded the student sufficient due process.  Finally, both the OCR and the related court decisions established the right of institutions to hold all students to the same standard of conduct. 

Threats or acts of self-harm, by themselves, are not directly protected under disability law and may constitute behaviors that are in violation of the conduct standards of a college/university if they are disruptive.   Rather, it is the manner in which the institution addresses the existence of any mental health condition that is deemed to have precipitated/exacerbated the act that is subject to regulation.  Thus, while institutions may have the right to address any violative behavior in which a student with an underlying mental health condition might engage, administrators must exercise caution in their approach.  As was evidenced in the 2010 Spring Arbor University case, administrators must be very careful not to inter-mingle disciplinary deliberations and sanctions with mental health interventions for doing so may be interpreted as a subterfuge for removing the student primarily due to fears/concerns related to that student’s mental health condition and expose the college to complaints brought under the ADA or section 504. 

For mental health professionals who operate under a professional code and/or related state licensure statues, decision-making in the management of a situation involving an endangering student with an underlying mental health problem can be even more complex.  It is not uncommon for administrators who do not operate under the same sort of regulations to take the position that when a student engages in behavior which raises concerns about the safety of that student themselves or the well-being of others in the academic community, it inherently disrupts the larger campus community and it would serve the collective interests of the institution to have that student leave the campus, be hospitalized and/or return home to be under the direct care of their family.  Conversely, mental health professionals following strict professional codes may pledge allegiance to their clients at the forefront, potentially prioritizing the needs of their client over the interests of the greater campus. This can lead to disagreement as to the preferred outcome in such situations. 

But it is the tenuous juxtaposition of professional codes and state regulations with the evolving Direct Threat Standard that creates the most pronounced public policy challenge for mental health professionals.  In March 2011, DOJ released a modified version of Title II of the ADA which (section 35.139) redefined the Direct Threat Standard as being applicable only in situations in which the person with the disability presents a “significant risk to the health or safety of others.”  The omission of any reference of “danger to self” inherently makes it discriminatory to withdraw or place on leave a student who engages in acts or threats of self-harm unless that student’s behavior warrants disciplinary action. 

Unfortunately, DOJ nor ED provided subsequent clarification whether a college or university may continue to implement, with impunity, a mandatory leave or withdrawal when a student posed a threat to self as ED previously had advised was permissible.  However, the department’s final position seems to have been made apparent in a 2013 decision involving a Western Michigan University student who filed a lawsuit when he was placed on mandatory leave after making suicidal threats. In that case, the ED affirmed that it was not permissible for a college/university to involuntarily withdraw a student for suicidal tendencies.  This position can create a quandary for mental health professionals who may feel compelled to act in accordance with state licensure statutes requiring them to protect a self-endangering client through hospitalization, parental notification or another action.  But, it also causes them to consider whether their decision to hospitalize might place the institution in a legally precarious situation with OCR or themselves at odds with their respective professional code should they elect not to do so in deference to the language of the revised Direct Threat Standard.

Campus administrators and mental health professionals who are responsible for making decisions in these matters are in dire need of clarity and guidance on how to balance the interests of the “troubled” student with the interests of the campus community, and the mandates of public policy – including the interplay between federal regulatory law and the obligations of state/professional codes.  Administrators should not have to continue to wade through the morass resulting from the vague intersection of multiple federal regulatory laws (e.g. Section 504, ADA, FERPA, the Fair Housing Act, the Health Insurance Portability and Accountability Act), state laws regulating the licensure and practice of healthcare professionals, binding and influential dictum flowing from court cases, and the conflicting guidance offered in OCR decisions or Dear Colleague letters.   

In the absence of a thoughtful, cohesive, and pragmatic public policy, counselors and administrators are left to contend with the extant discrepancies between past guidance and current federal policy language and the ebb and flow of the dictum created by relevant court cases as they strive to cope with the pressures exerted by the myriad forces impacting their management of these cases.