Published on November 4, 2019 as a guest post on Higher Education Today, a blog by the American Council on Education. It is reprinted here with permission.
In a recent blog post, ACE General Counsel Peter McDonough outlined principles recognized by the U.S. Department of Education’s Office for Civil Rights (OCR) as guideposts to avoid running afoul of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act when responding to students who pose a risk of self-harm. In this post, I take that conversation a step further by discussing what higher education institutions should consider as they develop involuntary withdrawal policies that incorporate OCR’s principles.
Involuntary leaves due to mental health concerns have received increased attention over the past several years, most recently in connection with Stanford University’s resolution of a lawsuit alleging that its policies discriminate against students with mental health disabilities. According to Stanford’s vice provost for student affairs, the university is implementing a new leave policy that “provides students with agency to advocate for their interests, as well as a thoughtful and collaborative university process,” consistent with an agreement reached with the plaintiffs in that matter. Colleges and universities should not assume that the law requires them to adopt a similar policy, nor that what is appropriate at Stanford is right for their campuses. However, this development highlights the importance of comprehensive, transparent policies that facilitate thoughtful risk assessments prior to involuntary withdrawal.
College and university administrators invest considerable resources to ensure that the procedures in their student discipline and academic integrity policies are fundamentally fair. Institutions recognize the importance of giving students the opportunity to participate in such processes, particularly when the result might be suspension or expulsion. The involuntary withdrawal of a student who poses a risk of self-harm is not intended to be punitive and does not necessarily indicate any underlying misconduct, but the outcome is the same: disruption of a student’s education. Institutions should exercise care in drafting their involuntary withdrawal policies, just as they do with other policies that may impact a student’s progression toward degree completion. In doing so, campus leaders should keep the following points in mind.
Do not assume involuntary withdrawal is a foregone conclusion. The goal of an involuntary withdrawal policy is not to force an involuntary withdrawal. To the contrary, the objective is to document a robust and fair process through which the institutions will fully assess a situation, taking into consideration information from the student, on-campus resources and, when appropriate, third parties. Implementation of the policy should result in an involuntary withdrawal only as a last option, with clear instructions regarding the student’s possible return to campus.
Define the situations where the involuntary withdrawal policy applies. Invoking the policy should require more than a vague, ill-defined sense of concern regarding a student. The policy should not single out a particular behavior, concern, or condition, nor should its implementation be the result of myths, fears, or stereotypes about mental illness. Instead, the policy should articulate a standard that treats similarly-situated disabled and nondisabled students the same. For example, the policy may state that it applies to situations where a student (i) poses a credible risk of substantial harm to a member or members of the university community (which could include self-harm), or (ii) substantially impedes the educational, residential, or other activities of the university community. The policy should assume that if the student is a qualified student with a disability—including a mental health disability—the institution will consider whether a reasonable accommodation will sufficiently reduce the risk of harm so that the student can remain enrolled.
Identify who will evaluate the risk of harm posed by the student. The policy should alert students as to who will be responsible for making decisions under the policy. Depending on the institution, it could be an individual administrator (e.g., the dean of students) or a threat assessment committee. Such a committee could include the directors of student health, the counseling center, and public safety, as well as student and academic affairs professionals and others as appropriate. Even if the institution relies on a single administrator to render the ultimate decision of whether a student needs to withdraw, that individual’s assessment will likely benefit from consultation with a broader group.
Describe the information to be considered in evaluating the risk of harm. Sometimes there is a perception that information from a student’s primary health-care provider may be biased or less credible than information from independent sources. However, the fact remains that those individuals often are most familiar with the student. Institutions should consider any relevant information provided by the student, including documentation from or conversations with the student’s health-care provider. Policies should state that students may be required to undergo an evaluation by an independent health-care professional, which may include the institution’s own resources. Policies should also alert students that they may be required to sign releases allowing the institution to access relevant information from third parties.
Consider offering an appeal process for the student who is involuntarily withdrawn. Appeal processes allow for a second check on the underlying decision. Institutions may want to consider a streamlined appeal process that permits the student to request that another individual or body evaluate the appropriateness of the involuntary withdrawal.
Require clear instructions for a student’s return. Policies should require that the institution document the conditions of a student’s return at the time of withdrawal. Policies should not include a standard minimum time away from campus, because doing so is inconsistent with the individualized assessment required prior to withdrawal. As with the decision to impose a withdrawal, the institution should consider all relevant information provided by students when they request to return.
Limit the scope of emergency, temporary involuntary withdrawals. Policies should acknowledge that institutions may be faced with situations requiring temporary, interim action. This need might arise when there is a reasonable basis to believe that a student poses a credible threat of immediate and substantial harm to a member or members of the campus community. In those limited situations, administrators may determine that a short-term removal is necessary pending completion of the full evaluative process. Even in those narrow situations, the student should have the opportunity to provide relevant information.
An involuntary withdrawal policy should provide a procedural roadmap for administrators navigating these challenging waters, ensuring that situations are considered on their specific facts, not on stereotypes or generalized concerns. Institutions should evaluate their procedures for risk assessment and involuntary withdrawal to ensure they remain current with developing case law and OCR guidance.
Amy Foerster is co-chair of Pepper Hamilton’s Higher Education Practice Group, which embraces the mission and business of higher education, while providing comprehensive legal services to colleges, universities and other educational institutions as they navigate the myriad issues impacting their campuses each day.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.