Nearly three years after a revision of federal regulations, colleges and the U.S. Education Department’s Office for Civil Rights are still squabbling over when potentially self-harming students should be sent home – and in at least one case where OCR intervened, the reinstated student went on to commit suicide.
Experts say that the case at Western Michigan University, where student Jackson Peebles filed a federal discrimination complaint  with OCR after being involuntarily withdrawn due to suicidal tendencies, is not the only one where a student has hurt him- or herself after pushing for readmittance.
The regulation in question is Title II of the Americans with Disabilities Act, which was for years interpreted by OCR and colleges as allowing for campus officials to send home, against their will if necessary, students who posed a “direct threat” to themselves or others. But a new version of the regulation issued by the Justice Department in March 2011  does not specifically address colleges’ options when a student poses a threat to himself, and defines direct threat only as: “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services."
The regulatory shift, which failed to even grab the attention of most colleges until an OCR decision later that year faulted Spring Arbor University  for placing certain stipulations on the return of a student who withdrew voluntarily, has not been followed up with clarification from federal officials, as colleges had hoped. Instead, many have continued to make decisions on a case-by-case basis while looking to decisions such as that at Western Michigan as guidance on what they can do without violating the civil rights of students with mental health disabilities.
Some colleges have even openly flouted the new interpretation, one source said, so great is their belief that involuntary withdrawal is a crucial tool for counselors to be able to employ when a student is, for example, demonstrating suicidal ideation but does not appear to be an imminent threat to others.
However, OCR’s resolution agreement with Western Michigan, despite the tragic end of the student who prompted it, appears to indicate that the office is not changing its position and intends to enforce it, said W. Scott Lewis, partner at the National Center for Higher Education Risk Management.
“I think we’re in the same place, and that is that the OCR has shown no real desire to back off the idea of reading harm-to-self as a component for involuntary withdrawal,” said Lewis, who is also president and co-founder of the National Behavioral Intervention Team Association. “It’s left schools in a difficult position.”
The Western Michigan resolution agreement, reported this week by the Kalamazoo Gazette , requires the university to revise its student code and other documents to reflect that students who have “disabilities involving mental impairment” must not be subject to different requirements or procedures than any other students, “absent the university being able to demonstrate that the student poses a direct threat to the health or safety of others.” The rules previously applied to threat to self as well.
Per OCR instruction, Western Michigan submitted a draft of its revised policies to the office and is awaiting final approval. Cheryl P. Roland, a university spokeswoman, said she could not share the new policy before then, nor could she discuss the university’s recommendations regarding Peebles’s treatment.
“On our campus, we are working hard to find the right balance between addressing the current OCR interpretation of the law and doing what we know is the right thing for the well-being of our students,” Roland said in an email. “The goal of that involuntary withdrawal option was simply to save lives in situations in which students were a threat to themselves and declined to seek needed help.”
She noted that in the past decade, only three students on the 25,000-student campus have been involuntarily withdrawn for emergency mental health reasons.
Earlier this year, the Gazette reported, Peebles, an honors student, won an appeal to return to campus after alleging that Western Michigan discriminated against him because of his depression and anxiety. But eight months after his withdrawal and winning appeal and less than a month after hearing that OCR said Western Michigan must revise its policy, Peebles committed suicide Oct. 20 in his Kalamazoo apartment, where a roommate found his body.
As is typical of resolution agreements between OCR and investigated universities, Western Michigan’s notes that the document “does not constitute a finding or admission that the university is not in compliance with applicable law and/or its implementing regulations.”
Responding to questions regarding the Western Michigan case and how OCR expects colleges to act or refrain from acting under the revised Title II, OCR said in a statement sent to Inside Higher Ed that both Title II and Section 504 of the Rehabilitation Act prohibit colleges from discriminating against students with disabilities, and must provide "reasonable accommodations" to students with mental health-related disabilities in order for those students to participate in educational programs.
"There are no categorical rules and ultimately what is required will vary depending on the facts and circumstances of each student's individual situation," the statement says. "These laws also prohibit colleges and universities from excluding a student from a program based on myths, fears, or stereotypes about mental health-related disabilities."
In a February 2012 letter to OCR, obtained by Inside Higher Ed, a group of officials and administrators organized by the National Association of College and University Attorneys and NASPA: Student Affairs Administrators in Higher Education follow up on a meeting with OCR officials by reiterating that the new Title II regulations “may have some unintended and potentially quite harmful consequences in practice.” They note that “practical and clear guidance,” which OCR indicated it would provide, would help avoid such problems. (In its statement to Inside Higher Ed, OCR said it is "currently working to develop guidance for colleges and universities in this important area.")
The letter goes on to list the various reasons why campuses are concerned about the new Title II interpretation: colleges are expected to protect self-threatening students and sometimes must make quick decisions in order to do so; they may not be allowed to decide whether a student is able to re-enter college after potentially incomplete medical treatment; self-harm is still potentially harmful to others, especially given that many homicidal students (such as Virginia Tech shooter Seung-Hui Cho) also have suicidal tendencies; the threat assessment teams that by nature identify and pre-emptively address students who are potentially self-harmful, and which have become a go-to safety procedure on campuses nationwide, may now be rendered futile; and, because institutions are legally obligated to act upon foreseeable risks, colleges “may feel that they are left choosing between a discrimination suit and a wrongful death suit.”
Officials say that involuntary withdrawal is almost always a last resort, following offers of counseling and support, community-based and educational interventions, or one-on-one talks between students and staff. After such efforts – which Lewis notes are crucial steps to take – many students withdraw voluntarily, the NACUA letter notes.
“But,” it continues, “all of our institutions also have experience with far too many students in crisis whose mental health problems render them incapable of making rational choices or accepting health and care.” When a student has attempted suicide three times in one month, the letter says, citing an example used in the meeting, colleges need the option to compel the student into medical care.
In the face of this uncertainty, many college officials believe their only option now when students refuse to leave is to force them through the student conduct process, where they could be suspended or expelled without the benefit of preserving their academic record – and, of course, causing additional stress.
“We hope it is not the government’s position that suicidal students must now be placed before regular student run judicial bodies,” the letter says, “simply because this process is the same one used with all other students.”
Despite airing these concerns, college officials are still downright confused about what they are and aren’t allowed to do. Is involuntary withdrawal now a per se violation of the ADA, the letter asks, or did DOJ simply remove a “safe harbor” and in doing so tell institutions they must be even more meticulous in navigating the disabilities law? Is “consideration of a student’s mental health issue” – for example, having a behavioral intervention team review a given student – the same as “discrimination based upon a mental health issue”? And is it acceptable to have policies that apply to all students equally but address concerns arising from mental health issues, such as a health review for students returning from medical leave?
Judging from the current environment, the only way the federal government will backtrack is probably if all colleges can articulate and employ a reliable and medically sound self-threat test to be used across the board, Lewis said, as well as show that they’ve attempted to inform students about the benefits of voluntary withdrawal.
In the meantime, Lewis said, the most important thing is for campuses to do is make sure they’ve got all the necessary support systems in place – and are using them – for self-harming students who either refuse to leave or who are involuntarily withdrawn and then readmitted. That also means being in close touch with the student’s emergency contact.
“The student comes back, they’re suicidal, you have to take them and then they harm themselves – the question that’s going to be asked is, what kind of support did you put there?” Lewis said. “I want to be able to say in my own mind and my own heart that we did everything we could.”