1. College Students in Mental Crisis
Evaluation of Self-Harm, Direct Threat, and Otherwise Qualified Standard
Diego Demaya, J.D.
Southwest ADA Center

2. The Increasing Population of Students with Mental Disorders
An American College Health Association Survey that queried over 80,000 students across over 106 schools, indicated that 43 % of all students said they felt "so depressed it was difficult to function" at least once within the last school year;
9% said that they had "seriously considered suicide" within the last year;
Should all these students – 1 out of be asked to leave college?

3. “Clear and Present Danger” Reporting Rules
Many States are requiring post-secondary institutions to report to State and Federal authorities students who pose a “clear and present danger.”
Generally “Clear and present danger” has been defined as:
A person who demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official; or,
A person who communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner.

4. Agenda
Clarification of Applicable Legal Standards for Removing Students;
Keeping Students in Mental Crisis in college;
Caveats and Recommended Practices.
Recommended Guidance Publications

5. Defenses to Remove a Student in Mental Crisis
Removal is permissible during Exigent or Emergency Situations caused by mental crisis;
Officials may invoke ADA defense of “direct threat” to others;
Officials may determine a student to be “otherwise not qualified” to continue participation in any given program due to health issues or for threatening self-harm;
An institution need not provide accommodations or make modifications if it demonstrates that doing so results in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens; e.g., providing mental health supports.

6. Who is Protected
Disability: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment;
"major life activity" includes activities such as thinking, concentrating, sleeping and communicating; e.g., diagnosed psychiatric or emotional disorders;
Post ADAAA an impairment that is episodic or in remission is a disability if it substantially limits a major life activity when active. Six month duration rule no longer applicable.

7. Discrimination is Prohibited
The ADA, Section 504, and FHA prohibit discrimination against students on the basis of disability;
Entities must facilitate reasonable accommodations and/or modifications, including auxiliary aids and services, for “otherwise qualified” students with disabilities designed to equalize participation in academic life; e.g., courses, sports, housing, all other activities.

8. All Resources Must be Counted
All available resources in program must be counted when denying appropriate accommodations or modifications; e.g., budgetary constraint argument is typically unacceptable by OCR and courts;
Determination of “fundamental alteration” and/or “undue burden” must be made by the head of the public entity and accompanied by a written statement of the reasons for denying modifications or accommodations;
If fundamental alteration or undue burden is invoked, the entity must take any other action that would not impose an alteration or burden but ensures that students with disabilities receive the benefits and services of the program or activity.

9. Privacy and Confidentiality Liability
Health Insurance Portability and Accountability Act (HIPAA) and the Family Educational Rights and Privacy Act (FERPA)--protect student privacy -- including confidentiality of disciplinary and medical records related to disability;
HIPAA / FERPA limit the information administrators may obtain from mental health providers and prevent disclosures related to disability, or academic or disciplinary record, without student consent. Violations bring heavy civil and criminal penalties.

10. Direct Threat to Others
A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated or reduced to an acceptable level by modification of policies, practices, or procedures, or by the provision of auxiliary aids or services;
Determination that a person poses a direct threat may not be based on generalizations or stereotypes about the effects of a particular disability.

11. Individualized Assessment and Evidence
Determinations must be based on an individualized assessment that rely on current medical evidence, or on the best available objective evidence, to assess:
The nature, duration, and severity of the risk;
The probability that the potential injury will actually occur; and,
Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.

12. Illustration A: Pre-ADAAA Self-Harm as Direct Threat
Woodbury University did not violate Section 504 by removing a student from her dorm during the Christmas/New Year intersession after she harmed herself during Thanksgiving vacation;
OCR found that there were reasonable conduct-based grounds for the University to believe that the student would be a “Direct Threat” to her own health and safety if she were in her dorm during the intersession. OCR Letter to Woodbury University (June 29, 2001)

13. Post ADAAA Policy Shift: No Self-Harm Evaluation in Direct Threat Defense
OCR 2012 "dear colleague" letter and FAQ state that it will enforce Title II and Section 504 consistent with the ADA Amendments Act;
The FAQ makes no mention of "direct threat" determinations in view of Title II imposing Direct Threat to “others” standard;
Means: direct Threat is now limited to risk of safety or danger to Others – NOT self-harm.

14. Consider Accommodation Before Removal
OCR provides in unofficial correspondence and public presentations that under ADAAA revised regulation institutions may no longer incorporate a self-harm evaluation in policies regarding emergency removal or involuntary medical withdrawal for Direct Threat;
OCR is reducing stereotypical responses to students at risk for self-harm and expects schools to focus on providing care and accommodations to students in mental crisis.

15. Is There a Difference Between Self-Harm and Harm to Others?
DOJ considers evaluation of “self-harm” and “harm to others” as substantively different standards;
Note that underlying misconduct is the same: violence or serious harm to a person;
Institutions have authority and discretion to take appropriate measures to prevent and eliminate such threats regardless of disability;
Emergency removal or compulsory withdrawal protocols have same goal regardless of whether there is a threat to self or others: preventing violence or other serious harm to a person on campus.

16. Illustration B: Failure to Examine Evidence
A student with bipolar disorder was involuntarily withdrawn after she attempted suicide.
The official making the determination failed to contact the student's healthcare providers before sending a letter stating that it was in the student's best interest to leave school and receive professional help. He also failed to review any of the student's medical or counseling records prior to making the decision.
A week after the withdrawal letter, the student's mental health counselor stated that the student was no longer suicidal and encouraged the student to return to her studies.

17. Case Review
OCR found that the university violated Section 504 by failure to consult with medical personnel, examine objective evidence, ascertain the nature, duration and severity of the risk to the student or other students, and failure to consider mitigating the risk of injury to the student or other students.
The university also failed to provide the student with advance notice of a hearing and an opportunity to be heard (OCR Letter to Bluffton University, 2001).

18. Self-Harm Issues: The Otherwise Qualified Standard
Self-Harm must be evaluated under the “otherwise qualified standard” before a student may be barred from participation;
Is the student qualified to participate; e.g., meets program requisites with or without accommodation or modification?
Courts addressing student risk or safety issues under Section 504 indicate that schools can take decisive action regarding students whose participation in any given program or activity would cause them harm.

19. Illustration C: Student not Otherwise Qualified to Participate
A student was barred from competition in NCAA basketball due to a heart defect. A school physician declared the student ineligible to play based on a number of factors: medical records in which several treating physicians recommended that the student not play competitive basketball, the report of the team physician after examining the student, published guidelines and recommendations regarding the eligibility of athletes with heart problems, and recommendations of consulting physicians.
Held: Northwestern did not discriminate based on disability because student was not “otherwise qualified” to play intercollegiate basketball. A “significant risk of personal physical injury can disqualify a person from a position if the risk cannot be eliminated.” Knapp v. Northwestern University (1996)

20. Case Review
Northwestern did not violate Section 504 because it reasonably considered and relied on sufficient evidence specific to the student and the potential injury in determining that he was not otherwise medically qualified to play basketball.
The court noted that the disqualification was individualized, reasonably made, and based upon competent medical evidence,” not “unfounded fears or stereotypes.”

21. Illustration D: Failure to Involve Mental Health Providers
A student was involuntarily withdrawn after several cutting episodes;
OCR found that the college violated Section 504 because the college did not involve all relevant healthcare providers, did not assess the student’s particular stressor, and did not consider an alternative less severe than withdrawal as an accommodation for the student. OCR letter to Guilford College (March 6, 2003)
Schools may no longer discipline or sanction students with compulsory withdrawals and sanction as a default solution.

22. Illustration E: Compulsory Removal of Student will be Suspect
In 2011 OCR determined that Spring Arbor University violated the rights of a student with a mental health disability who withdrew “voluntarily.” It took issue with rigid conditions imposed on the student’s return to campus. It blamed the university for failing to determine whether the student posed a "direct threat to others.
Schools may no longer send students home indefinitely and require them to seek psychiatric treatment as a condition to return after suffering a mental crisis.

23. Case Review
Spring Arbor likely avoided applying the direct threat to others standard because the strict factors to meet the test might have weakened its case to remove a student;
OCR decided this case consistent with Justice Department interpretation indicating the threat has to be against others -- not to the student.
Omission of a direct threat to self defense in Title II means that schools can no longer force compulsory removal or withdrawal of students under a self-harm "direct threat analysis.

24. Disciplinary Rules May Not Target Students with Disabilities
Disciplinary rules must be non-discriminatory and must be applied in a non-discriminatory manner;
Example: a college must not discipline a student for having hallucinations. It may not punish more severely a student who disturbs others by conversing loudly with an imaginary person than a student who disturbs others by playing loud music.

25. Caveats and Recommended Practices 1
Prior to advising voluntary leave or imposing compulsory suspension or expulsion, institutions must ensure an individualized assessment to determine whether the student remains otherwise qualified with accommodations and on-site / off-site mental health support;
OCR prohibits institutions from invoking risk and safety disciplinary procedures that fail to document substantial imminence of harm and foster unfounded fears and assumptions associated with mental illness;
Assessments must include consultation with qualified healthcare professionals to assist in judging the risk of substantial harm to self or others.

26. Caveats and Recommended Practices 2
Entities may take immediate measures to withdraw a student in exigent or emergency circumstances. Officials have authority and discretion to take appropriate measures to prevent and eliminate misconduct regardless whether student has a disability.
Due process is required. OCR letters and court cases on removals emphasize that a student must have a reasonable opportunity to be heard and respond before a final decision is made;
A code of conduct will not stand if used to discriminate on the basis of disability. Removal, withdrawal or discipline policies should be consistent with safety and code of conduct applicable to all students.

27. Caveats and Recommended Practices 3
Officials must incorporate observations and documentation of actions that indicate significant safety or code of conduct issues;
OCR may concur that students posing safety risks or who are unable to follow school policies are no longer "otherwise qualified“ thus excludable from certain programs.
Students in mental crisis found capable of safely staying enrolled may not be automatically removed solely because they might be considered a direct threat or as otherwise not qualified, if accommodations or academic adjustments could alleviate stress and pressures.

28. Caveats and Recommended Practices 4
Remove "barriers to voluntary leave of absence," such as waiving deadlines by which students must withdraw to still receive tuition refunds, and policies that disallow students to complete courses at a later time.
Provide support and accommodations so students can stay on campus and succeed with appropriate support and positive reinforcement.
Encouraged students to remain on campus or return to school after a leave of absence. Suicide statistics indicate that there may be factors protective and positive about the campus environment for students facing mental health issues.

29. Clear and Present Danger Reporting
“Clear and Present Danger” reporting is not required in Texas;
Student may be arrested for an alleged crime creating an arrest record;
ADA and Section 504 protections remain applicable to students not arrested;
HIPAA-FERPA rules remain applicable to protect student privacy and confidentiality; e.g., no reporting to parents without student consent even if arrested;
Once reported to any “non-arresting” authority as “dangerous” a student has no “due process” to remove the negative mark on any agency’s records.

30. The Clery Act
Clery is a consumer protection law that requires transparency of campus crime policy and statistics. Institutions must disseminate a public annual security report (ASR) to employees and students October 1st. ASR must include statistics of campus crime for the preceding 3 calendar years, plus details on efforts to improve campus safety.
Clery requires Institutions to provide victims of covered crimes with written explanation of rights; i.e., the option for a relocation/change of housing, transportation, academic course assignment, access to counseling services, legal services, and law enforcement notification;
Disciplinary proceedings must be conducted by trained parties at the institution. Proceedings are required to be prompt, fair, and impartial, and must confer certain procedural rights to both the accuser and the accused.

31. Recommended Guidance Publications
Campus Mental Health: Know Your Rights - A guide for students who want to seek help for mental illness or emotional distress;
Campus Mental Health – Frequently Asked Questions;
Bazelon Center – Practice Guidelines;
In the Driver Seat – Self-Directed Mental Health;
All located at:

32. THE ADA CENTER TOLL FREE – (800) 949-4232
WEB:
Local Phone: (713)
Diego Demaya – (713)