Colleges and universities are grappling with the proliferation of mental health issues among their student populations in the wake of COVID-19 as they deal with the effects of burnout, limited support resources, and social isolation. However, recent surveys have shown that an overwhelming number of students were already suffering before the global pandemic turned the academic world on its head. These students may act out in violent, disruptive, or other problematic ways that necessitate action on behalf of the institution. However, institutions of higher education (IHEs) need to be particularly careful when disciplining students with mental health issues to avoid running afoul of various federal antidiscrimination laws.

Background on Applicable Federal Discrimination Laws

Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) are federal laws that protect students with disabilities against discriminatory actions. Specifically, Section 504 prohibits discrimination against individuals with disabilities in IHEs that receive federal financial assistance, including student aid, federal contracts, and grants. The ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation, including, among other covered entities, private undergraduate or postgraduate schools. Both federal laws define a "disability" as a physical or mental impairment that substantially limits a major life activity, a record of such impairment, or being regarded as having such an impairment. Mental illnesses such as anxiety-related disorders, personality disorders, and affective disorders may all be considered disabilities. So, too, can addiction to drugs and alcohol, subject to certain limits.

When a student suffering from such a disability acts in a way that subjects them to discipline, such as violating the IHE's established code of conduct, it is not uncommon for the student to be disciplined or placed on an involuntary leave of absence. While this course of action is often the best way to ensure the safety of students, depriving a disabled student of educational resources can be discriminatory under the ADA and Section 504 when done improperly. The following provides guidance on how to avoid crossing that thin line.

Assessing Students Who Are a Threat to Others

The ADA and Section 504 lay out the path to effective discipline of a student with a mental disability; both provide that covered entities are not required to retain individuals who pose a "direct threat to the health or safety of others." "Direct threat" in this context means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation. To evaluate whether a direct threat exists, the ADA requires an IHE to make an individualized assessment, based on reasonable judgment, that relies on current medical knowledge or on the best available objective evidence, to ascertain (1) the nature, duration, and severity of the risk; (2) the probability that the potential injury will actually occur; and (3) whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. The individual responsible for making threat assessments is ultimately left up to the IHE, but best practices suggest that a multidisciplinary team comprising administrators, instructors, counselors, and the IHE's law enforcement is best suited to make an assessment. If, after an individualized assessment has taken place, a student is deemed to be a direct threat to others on campus, the IHE is at liberty to place the student on involuntary leave or otherwise discipline the student in a way that may deny them the benefits of services, programs, or activities offered by the IHE.

Assessing Students Who Are a Threat to Themselves

While individualized threat assessments are appropriate when a student is viewed as a direct threat to the health and safety of others, students who pose a threat only to themselves are subject to different standards. A student who has attempted suicide or otherwise made threats of self-harm only and has acted out in a way that necessitates discipline cannot be deemed a "direct threat" to others under Section 504 and the ADA. Unsurprisingly, this leaves IHEs in the difficult position of balancing the possibility of a violation of disability discrimination law if they place the student on an involuntary leave with the potential for civil lawsuits for failure to prevent suicide if the student ultimately follows through on their threats. Setting aside the fact that these lawsuits, even if ultimately meritless, can result in heavy legal fees and damage to an IHE's reputation, IHEs are often hamstrung by this conflict, as they genuinely want to do right by their students. For example, Princeton University recently settled a case brought by a student who alleged discrimination under the ADA and Section 504 when it placed him on an involuntary leave of absence and denied accommodation requests that would have allowed him to continue to partake in university services after he had attempted suicide.1 The case brought with it five years of legal fees and a two-year investigation by the Department of Justice Civil Rights Division for violations of the ADA, which ultimately resulted in the university rewriting some of its policies and practices regarding students with disabilities.

The role that an IHE should play with a student who is at risk for self-harm is a somewhat unsettled question, though some state courts have recently weighed in on the issue. The Supreme Judicial Court of Massachusetts tackled this issue in Nguyen v. Ma. Inst. of Tech., 479 Mass. 436 (2018), where the father of an MIT graduate student filed a wrongful death action against MIT, claiming that it was negligent in failing to prevent his son's suicide. The court held that IHEs have a "special relationship" with students, and thus have a duty to take "reasonable measures to protect the student from self-harm." Id. at 457. The court stressed that this is "definitely not a generalized duty to prevent suicide," and applies only where the IHE has actual knowledge of a previous suicide attempt or stated plans or intentions to commit suicide. Id. at 455-457. The court further held that an IHE satisfies its duty to enact "reasonable measures" (1) when it initiates the IHE's suicide prevention protocol; (2) if there is no protocol, when it facilitates clinical care for the student with medical professionals; or (3) if the student refuses such care, when it notifies the student's emergency contact.

Nguyen is a recent decision, and it is binding only in the state of Massachusetts; however, it sheds light on how IHEs can conduct themselves in a way that would protect both the student's well-being and the institution itself in instances where students are at risk of self-harm.

What Are the Best Practices for IHEs?

IHEs can best protect themselves from discrimination or wrongful death lawsuits in the following ways:

• Have a clear code of conduct that applies to students, faculty, and staff that will inform all disciplinary decisions by the IHE.
• Institute policies that allow the IHE to conduct individualized threat assessments in situations where students seem to pose a threat to the health and safety of others and put students on notice of these situations and the IHE's rights.
• If a student is ultimately deemed to be a direct threat, have policies in place that provide for leaves of absence and the conditions that must be met before the suspended student is allowed to resume participation in IHE activities.
• Update and review suicide prevention and response protocols and health forms to include appropriately tailored questions about suicide risk and mental health histories in order to get a better sense of students who may be at risk.
• Provide educational programming to faculty, staff, and students about best practices with respect to threat assessment and suicide prevention and response, as well as all relevant resources.

* The authors of this article thank Alex Clementi, law clerk, for his assistance in its preparation.

[1] W.P. v. Princeton Univ., No. 3:14 -cv-01893 (D.N.J. Mar. 26, 2014).