January 13, 2014
Inside Higher Ed recently reported a situation involving Western Michigan University (WMU). According to published reports, WMU placed a suicidal student on involuntary medical leave. The student appealed his dismissal and filed a complaint with the Office for Civil Rights (“OCR”). The student was readmitted, but he later committed suicide in his apartment, where he was found by his roommate. At present, a debate is raging around this situation. Some hail the fact that the student won the right to return to campus as a victory for emotionally distressed students. Others see this as an example of the tragedy that may flow from OCR’s push to require colleges and universities to allow students to remain on campus after they are no longer well enough to be there. Administrators are caught in the unenviable middle. The issue of what to do in response to suicidal students is anything but a clear one. This was not always the case. Over the course of several years, OCR had developed a fairly clear line of cases on this issue, and OCR generally supported involuntary withdrawals where students presented a direct threat to themselves or others. OCR laid out various procedural “due process” steps and considerations to be met in these situations, which boiled down to notice of the intent to remove the student, an opportunity for the student to respond, and an individualized inquiry into the facts and circumstances of each case. Most colleges and universities drafted policies incorporating those procedural steps and considerations. The present uncertainty exists as a result of a change to the regulations for Title II of the Americans with Disabilities Act (ADA). In September 2010, the Department of Justice (DOJ) revised the Title II regulations, and, in particular, with respect to when a student was a “direct threat” such that the student was not otherwise qualified to remain enrolled. The DOJ’s new direct threat definition is “a significant risk to the health or safety of others” (emphasis added). That is, DOJ did not include an individual’s threat to self as part of the direct threat analysis. The Title II regulations were announced in September 2010 and became effective in March 2011. Title II applies to public universities, not private universities. Private universities are covered by Title III of the ADA, but OCR seems to be moving toward using the same direct threat analysis -- one that no longer considers a student’s threat to himself/herself -- for private universities as well. OCR has not announced a formal renunciation of its earlier line of cases, and it has been assumed for some time that OCR will provide official guidance to clear up this confusion. To date, that has not happened. The unfortunate reality is that administrators are in the position of having to “pick your lawsuit”. A decision to involuntarily remove a suicidal student may result in a discrimination claim. Of course, if a student commits suicide on campus, the institution runs the risk of wrongful death or negligence claims, not only from the student’s estate but from other students traumatized or even physically injured in the event. Beyond the legal risks, there are bedeviling educational and ethical questions that go to the balance between the interests of the mentally ill student and the interests of the learning community as a whole. That elusive “right thing to do” depends on the unique circumstances of each situation. With that said, the following are universally helpful factors to bear in mind.
(1) Be certain to consider each situation on an individualized basis, taking into account the student’s behavior on campus, the opinions of campus mental health professionals, and the resources available short of an involuntary leave that may allow the student to remain safely enrolled.
(2) If a leave of absence is in order, it is always best that the student leave voluntarily -- truly voluntarily (not threatened into a voluntary leave). This is always the safer route, from a liability standpoint.
(3) If the student is to be removed involuntarily, consider whether there are facts to be cited demonstrating the student’s threat to “others” as well as to “self”. The student’s removal should be based on these larger community-type factors in addition to any expressed or anticipated harm to self.
(4) Ensure that leave policies do not treat removals for psychological reasons more harshly than removals for other reasons. If a readmission policy is more onerous for psychological leaves versus other leaves, OCR may find the policies discriminatory on this basis alone. If an institution requires “proof” that a psychological condition has been addressed before readmitting a student, it should require some kind of similar “proof” from students who required leaves for other reasons -- whether general medical reasons, finances, family commitments, and so on -- that the circumstances that necessitated these non-psychological leaves have been dealt with as well.
(5) Be sure the institution’s policies reflect its sense of the appropriate balance of the legal, educational and ethical concerns these situations present. Once that balance is decided upon, the institution must follow its policies carefully and precisely with respect to each troubled student. OCR is highly attentive to an institution’s compliance or lack thereof with its own published policies.
There will no doubt be further legal developments and continued academic debate around these very difficult situations. In the meantime, administrators should work closely with legal counsel to navigate the best path forward for their particular institution.