Title II of the Americans with Disabilities Act (“ADA”) requires colleges and universities to make reasonable accommodations for individuals with a disability to allow those individuals to participate and benefit from the services, programs, or activities offered by the public entity. Prior to 2011, the ADA regulations provided an exception to this requirement for individuals that posed a “direct threat to the health and safety of themselves or others.” In 2011, that language was amended to remove the word “themselves”, thus limiting the exception to those individuals who pose a threat to others. Colleges and universities must re-evaluate threat assessment policies and determine how to respond to threats in light of the amended regulations.
The U.S. Department of Education, Office for Civil Rights (“OCR”) will no longer use the direct threat analysis when evaluating complaints involving students removed, dismissed or otherwise disciplined due to concerns regarding self-harm. The OCR has directed colleges and universities taking action against a student believed to be a threat to self to make an individualized and objective assessment of the student’s ability to participate safely in the college or university’s programs. An individualized assessment must be based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications will mitigate the risk. An individualized assessment should include observable evidence of unsafe behavior in order to prevent stereotyping and discrimination toward disabled students.
The individualized assessment may also be based on current medical advice. Because the average person may not be able to observe these medical signs, the inclusion of medical advice is essential to the individualized assessment, especially in the absence of strong objective evidence. If the college or university determines that a student is a threat based on the individualized assessment, the college or university should first focus on the range of available accommodations and evaluate whether it is possible to avoid removing the student.
The procedure for conducting individualized assessments and making accommodations should be outlined in a clear, neutral policy. Colleges and universities should focus on conduct, not disability, and must implement this policy in a non-discriminatory manner and on a consistent basis. The policy must ensure that: consideration of reasonable accommodations are given; an individualized assessment is made; and due process is given to the student. By re-evaluating the threat assessment policy, colleges and universities can ensure they are compliant with the law while providing a safe and healthy educational environment.
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