May 08

Jumping to unwarranted conclusions

Following a link on Twitter, I saw this post on Pope Hat. I am going to just say that before this I had never read anything on the Pope Hat blog so I have no clue if this is typical. Typical or not, the post in question crosses lines of irresponsible interpretation and generally ableist language.

The theme of the post by Patrick is to basically highlight the potential problems with the recent change in federal law as it relates to what constitutes a direct threat when deciding when and how to sanction university students. The change in the law was to essentially remove “self harm” from the Title II of the ADA of what constitutes a “direct threat.”

The new wording:

Direct threat means 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 as provided in § 35.139.

The change in the wording is a request by the Department of Justice (DoJ)as an attempt to ensure that schools do not expel students with disabilities that only pose a risk of self harm and do not pose a risk of harm to others. The basic reasoning seems to be that suicide or other forms of self harm are symptoms of disabilities and as long as they are not disruptive, expelling students, or otherwise treating students differently than non-disabled students is a violation of the ADA. The change of wording was essentially to create consistency between Title’s II and III of the ADA as well as consistency with Section 504 of the Rehabilitation Act.

It is important to note that there have been relatively few cases where colleges have overstepped their bounds with regards to suicidal students. It appears that the DoJ chose to make this move based on the potential that including “self harm” in the language can create. This is especially important on the heels of many schools changing their policies after Virginia Tech. In an effort to prevent another incident like the one at Virginia Tech in 2007, the increasingly popular new school policies would assert that the colleges can force students to withdraw if they are deemed to be a threat to themselves or others.

Under the new wording in Title II, colleges cannot create a policy that threatens forced withdrawal or coercively force withdrawal based on sanctions outside what would be expected on other non-disabled students based solely on the criteria of self harm. This does not mean that a student, whose self harming behavior is disruptive to other students, is not subject to sanction for the disruption. They are merely not subject to sanction on the basis of self harm.

Now back to Patrick at Pope Hat:

The first problem I encounter with Patrick’s post is the title. Now titles are commonly hyperbolic as to attract a wide audience but this one is fairly over the top:

I Pledge That In The Event My Urges To Go On A Shooting Rampage Become Irresistible, I Will Seek Help From A Professional Counselor, Or Turn The Gun On Myself, Should The Demons So Command. X_____________ (Sign Here).

Now based on what the general article is about, I see not one way this title could be applicable. First no colleges were preemptively forcing students to sign agreements that they enter professional counseling in homicidal circumstances with the caveat that they self harm if not seeking help. That would have been illegal for a college to suggest (even without the creative language) before the change in Title II wording.  The title might have been more applicable if Patrick changed the order of the phrases and it read, “I pledge that in the event my urges to go on a shooting rampage, should the demons so command, or turn the gun on myself become irresistible I will seek help from a  professional counselor.” At least in that direction it makes a little bit of sense to the rest of the story.

Patrick goes on to say that under the new law the title pledge may be illegal for a school to adopt as policy. Once again, creative wording aside, the general gist of the pledge would have been illegal anyway unless you used the reordered version. Essentially the title has nothing whatsoever to do with the article or the law in question, aside from snarky jabs at those who are suffering from mental illness.

The snarky jabs at mental illness don’t end there:

Query:  A male student approaches the Dean, distraught that his girlfriend has left him, raving that he has a gun, and he’s willing to use it.  The Dean, after counseling the student to seek help, may expel our hypothetical student (for the safety of his fellow students and college employees) if the student makes which of these statements?

A. I’ve got a gun.  I’m going to shoot that bitch!

B. I’ve got a gun. I’m going to shoot myself!

C. I’ve got a gun. I’m going to, I don’t know what I’m going to do, but, ARRRRRRGH!!!!, the orbital mind control lasers! They command me to kill!

Apparently Patrick can’t seem to show cases where students might seem homicidal without being completely delusional but that doesn’t matter. What matters is that under the new wording to Title II, schools can technically force all three to withdraw depending on the circumstances. If the school deems that a student is a direct threat to others they can be forced to withdraw (Options A and C can both be interpreted that way). If the school deems that the student is violating other non discriminatory policies, like carrying a gun on campus, the student can be forced to withdraw or be expelled. What the school cannot do is force sanctions on those students who threaten to harm themselves while not posing a threat to others.

Patrick gives us his reason for alarm in the form of a cute little anecdote of a person he went to school with:

Think I’m wrong?  Consider the curious case of Wendell Williamson, who murdered two people in Chapel Hill, North Carolina, way back in the days before Virginia Tech.  Williamson and I were fellow students at the same law school.  I didn’t know Williamson, but I know a lot of people who did.  One of them, a former roommate, recalled when I called him to ask what the HELL was going on in Chapel Hill that day, “Oh yeah, that was the guy who yelled at beer.”

Meaning that Williamson would utter vague but dangerous sounding threats, to his beer, at the Henderson Street Bar and Grill, which in those days was the law school hangout.

Williamson was counseled by a dean I also knew, a man of the highest integrity and the utmost concern for his students, yet Williamson slipped through the cracks and went on a homicidal rampage.

Williamson is safely interned, today, at the North Carolina equivalent of the Arkham Asylum for the Criminally Insane.

So he tells a story about a student who obviously had a mental illness and went on to murder two people. Does Patrick show at any point where this student appeared to be either homicidal or suicidal? Yelling at beer doesn’t count. It seems that Patrick just wants to lump all people who hear voices (or talk to inanimate objects) in with the “possible threat to others” category and ignore that 1) a plethora of possible causes are responsible for hearing voices (or talking to inanimate objects) and 2) the urge to commit homicide is not even mostly caused by hearing voices (or talking to inanimate objects).

Patrick seems to miss also that this murderous cohort of his might not have been able to be removed before or after the change in wording. Threatening beer does not indicate a direct threat to self or others. In hindsight, yes he was a threat to others. Without the corrective lenses of hindsight however, there is simply no way to determine if Wendell’s ramblings (based on the information Patrick gives us) indicate anything homicidal or suicidal.

Basically nothing in Patrick’s post is even near related to the removal of “harm to self” from Title II. It seems he is more interested in droning on about people who hear voices than address any real problems with the change in wording. It is not that there aren’t actual problems with the new interpretations of the law though.

This report by National Center for Higher Education Risk Management (NCHERM), gives three tricky cases decided by The US department of Education’s Office for Civil Rights (OCR) and compares them in the wake of the change in the law. One of the biggest problems with the change is that it has left colleges with few options in how to handle suicidal students. Many colleges are not equipped to properly treat suicidal students and, yes, if a student commits or attempts suicide on campus, it can be a terrible burden on other students. The problems are exacerbated by the fact that DoJ has not responded with much in the way on guidance on how the new wording affects their ability to sanction students who are suffering from a disability that causes them to be suicidal/self harming. Without much guidance schools are forced to either find new ways of addressing suicidal and otherwise self harming students or face penalties under the new interpretations.

Schools can still force students to withdraw if they are disruptive in their self harming behavior. Where the line is drawn is whether a college forces a student to withdraw based on their disability it seems. If self harming behavior is documented as disruptive and reasonable restrictions are placed on the “disruptive behavior” alone, the student can be forced to withdraw or be expelled based on continued violation of those restrictions. They cannot be forced into abiding by policies that are not imposed on other students who do not have a disability.

The biggest issue with the new wording of Title II seems to be the nuance. Schools no longer know where they have legal grounds for forced withdrawal of self harming/suicidal students. The lack of certainty is forcing colleges to rethink the options they make available for students in their mental health services. That could be a good thing over all. I still would like to see the DoJ and OCR communicate more with colleges to define parameters for what is acceptable when sanctioning self harming students. Clear guidelines will ultimately mean colleges can at least try to take the right steps. Without clear guidelines they seem to be feeling their way through the maze one case at a time.

Clear guidelines aside, there is no indication that the new change in wording will remotely result in a “voice talking to me therefore must kill” type scenario like the one Patrick from Pope Hat suggests. I have no clue why he addresses it at all. Maybe it is just an easy way to demean people with mental illnesses. Whether it was his intention or not, repeated able-ism is surely the impression I got from his piece covering a pretty important change in the law.

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