When Do Students Pose a Threat and What are the Institutional Mandates and Authority to Respond?
Monday, July 22, 2019 at 3:05PM
David H. K. Nguyen

The intersection of student welfare and student responsibility that exists between Behavioral Intervention Teams and student conduct offices is a complex proving ground for balancing several legal and ethical issues in the rights of individual students. Decision makers in these spaces must consider the mandate for higher education institutions to protect the safety of the broader community. Recent cases, such as Regents of the University of California v. Katherine Rosen,have made national news and have garnered significant interest in higher education circles regarding the duty to protect based on the special relationship that exists between students and the institution where they are enrolled. In the Rosencase, the California Supreme Court affirmed that “universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities”. At the same time, Barnes v. Zachary affirms that institutions of higher education cannot suspend or expel a student without due process even if officials consider the student to be a “clear and present danger”. 

Where does this leave institutions of higher education when balancing the rights of individual students and the safety of the broader community? The 2011 changes to Title II of the Americans with Disabilities Act defines 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” and defends adverse actions taken against students who pose such a threat against the health or safety of others. This change in provisions has allowed higher education institutions to take adverse action regarding students who present a direct threat without a heightened risk of a discrimination lawsuit provided that their polices are focused on conduct rather than disability, ensure that an individualized assessment is made, consider reasonable accommodations, and ensure due process to a student even if such due process is granted following immediate removal in exigent circumstances. Importantly, the direct threat definitions have only been applied to a threat to others and not a threat to self. 

Given the special relationship, limited duty to protect, and the need to protect the due process rights of individual students, institutions of higher education will continue to need to invest significant time and infrastructure into finding the proper balance. There are already a multitude of federal regulations that place the onus of safety on colleges and universities (see Clery ActTitle IXDrug-Free Schools ActHigher Education Opportunity ActCampus Sex Crimes Prevention Act, etc.). It is likely that as in the Rosen case, courts will continue to defer towards institutional responsibility for campus safety and that “public colleges should focus more on preventing violence than getting sued.”Where the lines will be drawn on when a direct threat exists and when circumstances are clear and present enough to warrant delayed due process will likely continue to be a subject of debate in higher education circles and the court of law. What should take precedent? Student rights to due process, student rights to protection from students who pose a threat, or some combination of the two?

This guest post was authored by Mr. Eric Scott,  Dean of Students and Campus Life at the University of Alaska Southeast in Juneau, Alaska, and is currently a doctoral student in the Oregon State University Adult and Higher Education Program.

Article originally appeared on Highereducationlaw.org (http://www.highereducationlaw.org/).
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