For many years, the legal framework by which colleges and universities addressed students at risk for self-harm was well recognized and fairly well understood: If students posed a "direct threat"-a significant risk of substantial harm-to the health or safety of themselves or others, then the institution could take reasonable steps to diminish that threat without violating federal anti-discrimination laws.
Then, in March 2011, the U.S. Department of Justice ("DOJ") fundamentally changed the legal framework in which colleges and universities could address students at risk for self-harm without running afoul of federal disability discrimination laws. At issue was the definition of "direct threat"-when is a student no longer qualified because he or she poses a direct threat to health or safety? Previously, schools relied on the long-standing interpretation of the phrase by the U.S. Department of Education, Office of Civil Rights ("OCR") that direct threat includes both a threat to "others" and a threat to "self." OCR's interpretation was consistent with how the U.S. Equal Employment Opportunity Commission has defined direct threat in the workplace, an interpretation that was upheld by the U.S. Supreme Court. The DOJ upset this legal framework by defining direct threat for the purposes of Title II of the Americans With Disabilities Act (applicable to public institutions) to include only those disabled students who pose a significant risk to the health or safety of others, omitting any reference to a risk of self-harm. The 2011 Title II regulations and how they affect the direct threat analysis for colleges and universities were examined in depth in a November 2011 NACUANOTE.
Where do we stand now? Three years later, OCR has stopped referring to and relying on a direct-threat-to-self analysis, but there is still no formal guidance from OCR or the DOJ regarding how colleges and universities, without applying a direct threat analysis, can properly care for students at risk of self-harm while maintaining compliance with disability laws. How, then, should institutions answer this question in the absence of formal guidance? This Note reviews the current regulatory environment, examines the few self-harm cases that OCR has investigated since the regulatory change took effect in March 2011, and proposes some guidelines for safeguarding students and avoiding disability discrimination claims in the absence of formal federal guidance. Read More.