After the 2007 Virginia Tech shootings, many colleges amended their policies to make clear they could force students to withdraw if they considered them homicidal or suicidal. But a change in Federal law now says that taking such actions is discrimination, particularly if the student is only a direct threat to himself.
However, making that distinction is difficult. And now, university administrators are confused about what they can and cannot do with students who are a direct threat to themselves or others. The issue hinges on the definition of direct threat.
The Americans with Disabilities Act has always made clear that colleges and universities could withdraw students if they deemed they were direct threats. Art Jackson, Vice Chancellor for Student Affairs at UNC Charlotte says, "You're almost in a Catch-22 situation. We want to be careful about protecting the student, but we also want to be careful about protecting institutions from litigation."
Art Jackson, Vice Chancellor of Student Affairs at UNC Charlotte, says the school would do that four to five times a year on average. Because they are not prepared to deal with severe mental issues, they would recommend the student see an outside therapist or enter an in-patient program. "Once we got satisfaction back from the outside therapists that they were no longer a threat to themselves, then we would allow them back in school," says Jackson.
But that all changed in March 2011. The Department of Justice issued its own definition of direct threat, saying that schools can only withdraw students if they are deemed a direct threat to others, not just themselves. The action came as a complete surprise, says Brett Sokolow. He's an attorney with the National Center for Higher Education Risk Management. They consult 35 colleges and universities across the country. He says there is a lot of scrambling for answers.
"I think the main reason why is that this change came down with very little fanfare and without any guidance from the Department of Justice of what it meant, and then when we all turned to the Department of Education and said, 'What does this mean?' They didn't have their act together either," he says.
To Sokolow, the Justice Department change seemed a little out of touch regarding direct threat. Are suicidal students really just a direct threat to themselves? What about friends or roommates? What about the stresses of suicide watches? Or if the student acquires a gun? The Department of Justice declined persistent requests for comment.
It's up to the Department of Education's Office of Civil Rights to enforce the rule. The agency is also supposed to provide guidance to colleges and universities on how to navigate this change. Sokolow and other critics say that hasn't happened.
Back in January, the agency finally did meet with the National Association of College and University Attorneys and student affairs administrators. Mark Schuster, the Dean of Students at Rutgers University, was at that meeting. "And we actually were surprised how positively we were received and how well OCR listened to what extent they were interested in working with us to understand the issue," says Schuster.
David Spano, Director of Counseling at UNC Charlotte, says "In some ways, these regulations have caused us to step back and say, 'Okay, now what can we do for these students?' rather than separate them from our campus."
Still, the group has concerns and expressed them in a follow-up letter to the Office of Civil Rights. The letter says suicidal students create a real risk of "collateral damage" to other students. Another concern is that university administrators now worry that they have to choose between the risk of a discrimination suit or wrongful death suit.
Rick Ferraro, from the Virginia Tech Student Affairs office, says the new ruling is fraught with many daunting questions. In an email he asks, "Can one really draw a clean line between threat to self and threat to others?"
Art Jackson from UNC Charlotte isn't sure. "We're always cautious," says Jackson. "You're almost in a Catch-22 situation. We want to be careful about protecting the student, but we also want to be careful about protecting institutions from litigation."
Some schools are still in the process of revising their policies. UNC Charlotte has completed its revision. And the school's Director of Counseling, David Spano, says using tactics other than withdrawing the student could produce better outcomes. "In some ways, these regulations have caused us to step back and say, 'Okay, now what can we do for these students?' rather than separate them from our campus," he says. But when it comes to assessing the impact of how a suicidal student affects the community, Spano says the school's hands are tied.