Leadership Exchange

Mandatory Withdrawal and Leave of Absence Revisited

BY DARBY DICKERSON

Ahot topic on many university and college campuses today is the implementation of mandatory withdrawal or leave

of absence policies that permit administrators to remove from campus or campus housing students who pose

dangers to themselves or others. From a legal perspective, mandatory withdrawal and leave policies are permitted at

both public and private institutions. However, when drafting, revising, and enforcing these policies, campus administrators

should be aware of parameters set by the United States Department of Education Office of Civil Rights (OCR).

In 2005, the OCR determined that Marietta College in Ohio had violated Section 504 of the Rehabilitation Act for dismissing a student after he and his parents shared information about his depression and history of suicide attempts with a staff psychologist, who in turn reported the information to the dean. (Complaint No., 15-04-2060, 2005 NDLR (LRP) LEXIS 371, 31 NDLR 23.) The school indicated that it felt the student posed a direct threat to health and safety on campus and dismissed him pursuant to its emergency withdrawal policy. The assessment of direct threat was based on the student’s unwillingness to participate in weekly counseling, the fact that past suicide attempts had occurred without warning, and a report from the student’s roommate that he was acting strangely and talking frequently about death. The student also boasted to the psychologist that if he were going to commit suicide, no one would ever know. The psychologist believed this statement constituted a threat that the student was going to kill himself. After the student and his parents refused to consider a voluntary withdrawal, the college invoked its emergency withdrawal policy, which stated that students who threaten or attempt suicide may be involuntarily removed from the college.

In its letter to Marietta College, the OCR explained that when a college seeks to remove a student with a disability, that student must represent a direct threat to their own health and safety or that of others. To rise to the level of a direct threat, there must be a “high probability of substantial harm and not just a slightly increased, speculative, or remote risk.” In addition, the assessment of threat must be “grounded in sound evidence and cannot be based on unfounded fears, prejudice, or stereotypes regarding individuals with psychiatric disabilities.” This assessment may not be premised simply on the student’s disability or condition. For example, it is not enough to conclude that a student presents a direct threat because he or she is suicidal or may suffer from bipolar disorder. Instead, the college must make an “individualized and objective assessment of the student’s ability to safely participate in the institution’s program based on a reasonable medical judgment relying on the most current medical knowledge or the best available objective evidence.” As part of this assessment, the

college must use experts to attempt to determine “the nature, duration, and severity of the risk; the probability that the potentially threatening injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will sufficiently mitigate the risk.” The assessment also must be based on an observation of the student’s conduct, actions, and statements, and more than merely a conclusion that the student suffers from a particular condition. Although a college may take interim measures to remove a student from campus or campus housing, before a final removal the college should provide notice to the student about its specific concerns and afford the student an opportunity to be heard on those issues. Finally, each college must, pursuant to law, have a grievance procedure for disability discrimination complaints or a Section 504 coordinator.

Establish Policy Guidelines

Based on this guidance, with regard to mandatory withdrawal and leave policies, colleges should:

• state in their policies that students, including students with disabilities, may be removed from campus, or campus housing, if they present direct threats to themselves or others;

• define “direct threat” in a manner consistent with OCR opinions;

• require an individualized assessment by trained medical or mental health professionals to determine if a student poses a direct threat;

• base any determination regarding direct threat not on the student’s condition, but on the student’s conduct, actions, and statements;

• include in the assessment specific information regarding the probable nature, duration, and severity of the risk posed by the student, along with information that supports the college’s determination that the potential risk actually will occur if the student remains on campus;