New Title II Regulations Regarding Direct Threat: Do They Change How Colleges and Universities Should Treat Students Who Are Threats to Themselves?

Education Partner Paul Lannon, chair of the firm's Non-Competes, Trade Secrets and Defecting Employees Team, and Associate Elizabeth Sanghavi authored a NACUANOTES article titled "New Title II Regulations Regarding Direct Threat: Do They Change How Colleges and Universities Should Treat Students Who Are Threats to Themselves?"

Federal laws prohibit discrimination on the basis of disability, including mental illness. But for years, colleges and universities have understood – based upon government guidance – that they could nonetheless dismiss or discipline disabled students who are "direct threats" to themselves, without running afoul of federal antidiscrimination laws. The article reports that institutions are now reexamining this position in light of new federal regulations that expressly recognize an institution's ability to discipline or dismiss students that pose direct threats to others, but omit any reference to direct threats to self. In the article, Mr. Lannon and Ms. Sanghavi review the Department of Justice's (DOJ) new direct threat regulation under Title II of the Americans with Disabilities Act, the U.S. Department of Education's past threat-to-self cases and relevant case law, and suggest some approaches for developing involuntary withdrawal policies and removal protocols to comply with Title II.

They conclude that until the U.S. Department of Education, Office for Civil Rights (OCR) or the DOJ issues guidance regarding the removal from campus or dorms of students who pose a direct threat to themselves, or their exclusion from other programs, colleges and universities with emergency removal and involuntary leave policies should ensure that their policies follow the core non-discrimination principles outlined previously by OCR and the courts, even if a direct threat analysis is no longer used explicitly.