The Catholic University of America

ADA Guidelines

 

Self-Audit Checklist

 

VI. Safety Issues Checklist

 

Safety Issues

 

Direct Threat: CUA takes the position that a student may be denied participation in programs or services if their participation poses a direct threat to the health or safety of others. This position is supported by case law interpreting 504 and a regulation under the ADA in the employment area. See the Nov. 1, 2011 NACUANOTE on direct threat and new Title II DOJ regulations, which may or may not be applied to a Title III entity like CUA, but likely will be. These regulations take the position that a direct threat to self which is based upon a disability (such as depression and suicidal threats) cannot automatically result in a denial of participation in programs or activities. However, it does not mean schools cannot take action against students who are at risk of self harm. This is an area of evolving law, and the NACUANOTE addresses this with best practrices.

 

Safety of the Individual Versus Safety of Others:

  • Under the ADA, if the student's participation in programs or services imposes a direct threat to the safety of others, then the school or department may deny participation in the program (42 U.S.C. 12113(b), 42 U.S.C. 12182 (b) (3), 28 CFR 36.208). The risk of a direct threat to the safety of others means a significant risk that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. The conclusion that a direct threat exists must be based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence in order to ascertain 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 the risk.
  • Section 504 permits denial of participation if participation of a qualified student with a disability imposes a threat to the safety of others. (See 29 U.S.C. 705 (20) (D)) Furthermore, several cases interpreting the law under 504 indicate such a "safety defense" may also be invoked when there is the probability of harm either to the individual seeking to participate in the program or to others with whom that individual will come into contact.

 

Not Otherwise Qualified: In Knapp v. Northwestern University, 101 F. 3d 473 (7th Cir. 1996) (rehearing en banc denied, 1997 U.S. App. Lexis 93, cert. denied, 138 L. Ed. 2d, 212), the court determined that a university had the right to determine whether a student with a disability was medically qualified to play a certain sport. The court determined that the student was not "otherwise qualified," because he had suffered a cardiac arrest while playing basketball in high school, and thus there existed a threat to the safety of the individual. Therefore, the university was not obligated to accommodate his disability by allowing him to play the sport he requested.

 

 

 

Checklist Questions 50-52

50. What processes or procedures are in place to communicate faculty concerns through the appropriate chain of command to those with a need to know when the faculty member is concerned about a direct threat to or the health or safety of a student?


51. Does the School attempt to eliminate the risk by modification of policies or the provision of auxiliary
aids or services?

52. Are there any activities where safety might become an issue, such as clubs, extracurricular
activities, outdoor activities, or risky travel?

Answers
Checklist Questions 50-52

 

Return to the Self-Audit Checklist




updated 11-7-11 with NACUANOTE and updates to Direct Threat text