Substantial Changes to the ADA/504 Direct Threat Test

I write with news regarding changes this past summer to the ADA/504 Direct Threat standard. While I can tell you what we can't do, I fear that I am not particularly able to shed light on what we can do, legally. Nor can OCR. Let me bottom line it first. We need to use informal processes to press for voluntary (non-coercive) leave for students who are acutely self-harmful. Additionally, we must question the common practice of placing conditions on the return of students who leave voluntarily (OCR Decision Letter to Spring Arbor University). While any one OCR Decision Letter is not precedential, to place conditions on students with disabilities that we do not place on other students can be discriminatory. Perhaps imposing conditions for return on all leaves, for any reason, might mitigate the disparate treatment argument?

I spoke yesterday to wise and trusted colleagues at the Department of Education's OCR. They agree that reinterpretation of the direct threat standard is frustrating. Apparently, DOJ has had a long-term view that the direct threat standard has more potential to be wielded as a dangerous sword than protective shield, though that view is not shared by all at the Department of Ed. Thus, when DOJ rewrote the Title II ADA regulations this summer to eliminate harm to self language, they were sending a signal to DOEd's OCR that its expansive reading of Title III was not sustainable (Title III language has always been "harm to others", but DOEd's OCR had interpreted that to mean harm to self or others). DOJ has failed to elaborate a path forward, but conversations are taking place between DOEd and DOJ.

OCR decisions we all know well (Bluffton, Marietta, DeSales and Guilford) can no longer be considered good law or representative of OCR's future enforcement standards. As applied to both public and private institutions, as of August 2011, the direct threat test has been limited in its application to harm to others, only. Arguments that equate harm to self (self-murder) with harm to others are unlikely to fly with DOJ.

Additionally, the move toward stand-alone involuntary medical/psychological withdrawal processes (a move that I encouraged and championed through NCHERM and NaBITA) is no longer valid (at least for harm to self). I championed it because of OCR's inclination to view conduct proceedings against suicidal and self-injurious students as pretext for discrimination against individuals with disabilities. Now, I think we are only left with voluntary compliance or conduct proceedings, which continue to be fraught with the potential for disparate treatment and pretext arguments.

Apparently, the narrow window left to us is to argue that our conduct actions are neither pretexual nor disparate in their impact. For example, a recent OCR decision upheld Mt. Holyoke's application of its disruption policy specifically for the impact that a self-injurious student had on classmates and the campus community. They were able to demonstrate clearly that their actions were not on the basis of the self-injurious behavior, but on the impact that behavior had on others. This conduct approach won't likely work for threat provisions under our conduct codes, as DOJ is explicitly telling us we can't use a direct threat standard for self-harm, so they are highly unlikely to approve of us using a less protective conduct code threat standard to make an end-run (more elucidating discussions of the Spring Arbor University, St. Joseph College and Mt. Holyoke College decisions will be forthcoming from NCHERM).

Ultimately, I think we are left in the untenable position of deciding between DOEd/DOJ OCR enforcement and the wrongful death and attendant negligence claims that may come if we fail to take action to protect from foreseeable self-harm. Action short of separation will likely pass muster, but action short of separation may also present too acute a threat of harm for us to accept. We also must consider not only the legal implications, but the harm that befalls our students, their families and our larger communities when a friend, roommate or loved one attempts or commits suicide on campus. The survivor grief, their depression responses, and the occasional suicide cluster that follows an attempt or completed suicide are other variables we must consider against the narrowed direct threat perspective of DOJ.

Again, we may act to separate a student lawfully on the basis of a direct threat of harm to others. I think we need to question the viability of interim suspensions for harm to self, and the common practice of interim suspension pending medical clearance or the results of a mandated assessment. Hopefully, greater clarity from OCR will be forthcoming. We'll do what we can to keep you informed of what we find out. Please share this with your legal counsel, as I do not claim to fully have my brain around all of this, or that all of it is accurate. It's the best I can piece together right now with limited access. Please do share any creative ideas, solutions, or theories that you may have to help us achieve a new workable model for balancing the protection of civil rights and the protection of our campuses in these difficult cases.

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

Managing Partner, The National Center for Higher Education Risk Management (www.ncherm.org)
Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)
Executive Director, The Association of Title IX Administrators (www.atixa.org)

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NCHERM serves as legal counsel/advisor to 27 campuses