This topic is raised fairly frequently by members of the National Association for Behavioral Intervention and Threat Assessment (NABITA). This Tip of the Week offers key understandings and best practices and is adapted from a listserv response to a set of questions from NABITA members about how disability laws — including §504 of the Rehabilitation Act – protect rights and set limitations with respect to students who may represent a threat of harm to themselves and/or others.
- Not all student leaves/dismissals are governed by disability law, but many Behavioral Intervention Team (BIT)-related separations (voluntary or involuntary) may be, and the law has a provision that can protect someone who is regarded as disabled, whether or not they are known to the college/school as such.
- Generally, involuntary separation (leave, withdrawal, suspension, etc.) is the threshold that can invoke disability protections when on the basis of risk of harm to self or others.
- The Department of Education’s (ED) Office for Civil Rights (OCR) tends to view institutional controls on a student’s return from leave as potentially discriminatory, unless all students/employees returning from leave FOR ANY REASON are subject to the same conditions as those returning after leaves related to the risk of harm-to-self or harm-to-others. Strong suggestions and recommendations may pass muster, but requirements will not.
- Administrators who wish to set conditions for return from an involuntary separation will typically be within the law if those conditions rationally relate to the risk and as long as they do not require cessation of the underlying disability/condition as a requirement of return. To be reinstated, the risk must be averted, but not the disability/condition that may have given rise to or contributed to the risk.
- A student who has been separated involuntarily from the institution for being a direct threat of harm to others is entitled to return upon demonstrating (to institutional satisfaction, which cannot be unreasonably denied) that they are no longer a direct threat.
- That return can occur at any time the student chooses to do so, though for practical reasons related to the pace of the academic term, it may make sense to resume the following semester.
- Requiring a student to apply for re-admission is likely to be considered a form of disability discrimination (perhaps unless you treat all students similarly).
- A student who voluntarily withdraws (as contrasted with taking a leave) can be made to re-apply.
- Institutions cannot separate a student involuntarily using the direct threat standard for behaviors related to self-harm or suicidality because the direct threat standard applies only to situations that represent a threat of harm to others. However, administrators likely can use the “legitimate safety risk provisions” of the ADA/504 regulations, which function similarly, for self-harm situations in which involuntary separation is sought.
- The process for making such a finding likely resembles the formality of a Title IX hearing, if contested, though the government and courts have never laid out a cohesive due process roadmap for doing so.
- A student returning from a voluntary leave of absence cannot be made to re-apply. They get to resume when they want, just like they leave when they want (subject to practical considerations related to the pace of the academic schedule).
- They don’t have to demonstrate cessation of any conduct or be able to demonstrate their own safety. They get to determine the length of their leave unless there are consistent institutional leave rules/policies applied to all students who take a leave, for any reason.
- Coercing a student into “voluntary” leave or separation for BIT-related reasons will likely be seen as disability discrimination.
- The code of student conduct (typically provisions on disruption) is commonly used as an accepted non-discriminatory approach, as long as the sanctions for individuals who disrupt for reasons other than BIT-related matters are similar to those imposed for BIT-related matters
- NOTE: suspension or separation for disruptive behaviors is relatively uncommon for colleges, though lower-level sanctions are more common. Suspensions, including in-school suspensions, are more common for K12 schools.
- A sanction for disruption that is out-of-line with common sanctions for other forms of disruption not related to mental health/disability may create an inference of discrimination when used on students who are a direct threat or legitimate safety risk.
- Using a direct threat process or legitimate safety risk determination (which effectively places a student’s behavior outside the protections of disability law as “not otherwise qualified” to participate in the educational program) will often be preferred to a conduct process when the separation will be long-term, or there is a preference not to create a conduct record for the student (to avoid stigmatizing mental health challenges, for example).
- The BIT should stand at a level of removal from the conduct or direct threat/legitimate safety risk determination process. The BIT can inform those processes, but they need to be administered by others.
- The encouragement or imposition of leave can come with a safety plan or case management plan. With involuntary actions, administrators can impose reasonable conditions of return. With voluntary actions, administrators can make suggestions or encourage certain protective behaviors, but they cannot and should not be mandated.
The goal of these types of interventions is to support the student without discriminating against them. While some administrators are reticent to separate a student for liability risk reasons, the separation is an institutional recognition that the conduct is so harmful/disruptive that the student would likely have a better chance of recovery/treatment outside the educational program, and/or that the risk to other students is greater than the school can manage.
Schools can and should continue to manage the intervention once the student is separated and can make institutional services/support available to the extent it is safe to do so, as well as to arrange continuity of care and involve parents/guardians/law enforcement, etc., as appropriate.
Education administrators are expected to take reasonable care to ensure the safety of the campus or school community. The framework elaborated above is intended to help empower actions to enhance safety within a lawful, non-discriminatory framework.