With universities across the country revising their involuntary withdrawal policies relating to student mental health in the wake of complaints and lawsuits, some students are questioning the legality of the University of California model policy for involuntary withdrawal and UCLA’s housing regulations.
The UC has a model policy that allows administrators to dismiss students they deem as a direct threat, and UCLA housing has a similar policy that allows the Office of Residential Life to remove students from the dorms.
But the policies don’t mirror the Americans with Disability Act’s definition of “direct threat,” a difference some UCLA students have taken issue with.
Universities can find themselves in hot water when determining whether a student with a mental health condition meets the legal criteria to be involuntarily withdrawn from classes and designated as a direct threat to themselves or others.
Title II of the Americans with Disabilities Act prohibits public entities, including public universities, from discriminating against individuals because of a physical or mental disability. Section 504 of the Rehabilitation Act of 1973 provides similar protections.
The Americans with Disabilities Act was amended with a clarification in 2011 that incorporated a definition of “direct threat” into the text of the law. It defined a “direct threat” 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.”
Still, many universities have operated with the understanding that involuntary withdrawal policies can apply to students who pose a threat to others or themselves. This understanding has generally been upheld as long as reasonable accommodations or modification of policies wouldn’t mitigate the threat, said Julia Graff, a senior staff attorney with the Bazelon Center for Mental Health Law in Washington, D.C.
Lawsuits and appeals have resulted in the federal Office for Civil Rights overturning involuntary withdrawal decisions at Spring Arbor University in 2011 and at Western Michigan University earlier this year. Another case involving the withdrawal of a student who voiced suicidal intentions is being investigated by the ORC at Princeton University.
The issue found its way to the UC community earlier this year. In February, a UC Santa Barbara student came forward in a Newsweek article on her experiences in student housing after she cut herself. According to the article, the university pursued disciplinary action against her and threatened her with forcible removal if she had not waived “her confidentiality and allowed her therapist to provide weekly reports to the administration.”
“Due to several lawsuits, many universities have either dropped such policies or they have instituted careful due process procedures to best ensure that such dismissals are genuinely needed for the student’s safety or the safety of others,” said Stewart Cooper, director of counseling services and a professor of psychology at Valparaiso University specializing in the mental health of college students.
Differences in language
Where the Americans with Disabilities Act emphasizes a direct threat as a potential harm to others, the UC model policy is more broad, including a threat to oneself in its definition, among other regulations.
“(The UC policy) encompasses a lot more than the direct threat analysis (in Title II of the Americans with Disabilities Act) permits,” Graff said. “But the university is allowed to have academic and conduct expectations.”
The policy could run afoul of the law if the University’s application of those academic and conduct expectations result in different consequences for students with disabilities than students without disabilities, Graff said.
The UC did not respond to multiple requests for comments on its policy by the time of this article’s publication.
In line with the Americans with Disabilities Act, the UC Model Policy for Involuntary Withdrawal introduced in 2009 notes three considerations that must be evaluated before a student can be removed from classes: the severity of the potential harm a student poses, the likelihood that the harm will actually occur and whether reasonable modifications of university practices will mitigate the risk.
Reasonable modifications could include providing leniency with attendance policies, providing a single dorm room or offering counseling services, Graff said.The UC policy specifies that modifications of practices only apply to a student who “contends he suffers from a legally protected disability entitled to reasonable accommodation.”
Mental illnesses often constitute a disability under the Americans with Disabilities Act, which requires the University to provide accommodations so that students can have fair and equal access to education. Students can register with the Office for Students with Disabilities to seek out these accommodations.
The UC policy requires that a student being considered for involuntary withdrawal undergo a medical examination by a doctor or psychotherapist other than the physician or therapist the student normally visits.
“That makes absolutely no sense,” Graff said. “(The evaluation) has to be an individualized assessment and the best way to do this is to go to the provider who knows the student the best. If there’s no objective reason to doubt the credentials of the provider, then there’s no reason to seek out another provider.”
UCLA’s housing removal policy
The UC model policy provides each campus the choice to adopt the involuntary withdrawal guidelines, according to former UC President Mark Yudof’s introductory letter to the policy.
UCLA spokesman Tod Tamberg said the policy isn’t applied to UCLA students because the university believes it isn’t fair or productive to remove students from their academic pursuits.
Given four days to collect the information, UCLA did not disclose the procedure by which it deals with students who voice suicidal ideation or intent to harm oneself. Additionally, UCLA did not disclose the procedure for determining whether a student who posed a threat to self would be removed from housing after several inquiries. Neither procedure is available online.
Although UCLA said it does not follow the UC model policy for involuntary withdrawal, university housing has a policy to remove students from housing if they threaten to harm themselves or others.
The ORL has a policy under the “sanctions” portion of its website that states students can be removed for physical abuse or threats of violence to others or self, and explicitly includes threats of suicide in the regulation.
Some students behind Undergraduate Students Association Council’s All of Us campaign said they worry that the UC policy and some UCLA housing policies might cross a line between keeping students safe and discriminating against students with mental health concerns. The student-run campaign that launched this fall will advocate for changes in University policies that may compromise the rights of students with mental illness.
USAC Student Wellness Commissioner Savannah Badalich said she thinks removing students from housing is tantamount to dismissing them from the university, because it puts undue pressure on students already suffering from a mental illness.
“It’s a way of dismissing students without dismissing them,” she added.
Although the policy states that UCLA students can be removed from housing for suicidal ideation, UCLA officials stated in a submission to the Daily Bruin Friday that the regulations are used “primarily in instances where a student is seen as a demonstrable threat to the safety or well-being of other students in the residential community.”
Graff said designation of the policy as a disciplinary procedure could have legal implications if it is applied to students with mental health concerns that qualify as disabilities.
“Self-harm should not be dealt with as a conduct (problem). That seems counterproductive for everyone,” she said. “That approach targets conduct and emotions that are part of a student’s mental health condition. It’s not fair to penalize someone’s health condition.”
Students involved in the All of Us campaign said they worry the involuntary withdrawal policies of the UC and UCLA housing may discourage people from seeking help.
Beyond the Americans with Disability Act and Section 504 of the Rehabilitation Act, which both protect people with disabilities against discrimination, university housing is also subject to the Fair Housing Act, Graff said. The additional law requires UCLA to first discuss and provide accommodations before removing a student from housing because of a mental health condition.
If a student is dismissed academically, the UC model policy allows students to appeal to have the decision overturned. Additionally, students can report instances of discrimination to the UCLA ADA and 504 compliance officer, Monroe Gorden, who also serves as the assistant vice chancellor for student affairs administration.