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Salome Heyward Presents: ADA Direct Threat Monday, 21 April 2014

Salome Heyward is a civil rights attorney with over 30 years’ experience in the field of disability discrimination law and disability management. Dr. Heyward is frequently sought out by media personnel to provide legal background for their productions concerning disability issues, e.g., NBC, CNN, ESPN, the New York Times, the Christian Science Monitor, and the Chronicle of Higher Education. She is a well-known and respected speaker and trainer in the area of disability discrimination law and disability management. She has been a featured presenter for national associations and organizations such as the American Association for Affirmative Action, the Association of Higher Education and Disability, the Council of State Governments, the National Association of State Personnel and the International Learning Disabilities Association. Dr. Heyward’s firm, Salome Heyward & Associates, helps post-secondary institutions, agencies and employers develop and maintain effective and compliant ADA/Section 504 programs and services. Services provided include: Program and function audits; case evaluations; ADA consulting; and complaint review and analysis.

This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

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Good morning.Welcome.The realtime CART captioning will be displayed on this screen. >> BREE CALLAHAN: All right.She has the microphone, so I get to yell a little bit here.Thank you for coming on this wonderful Monday morning at 10:04.My name is Bree Callahan.I am the director of Disability Resources for Students. And Amanda Paye and I

and Housing and Food Services and the Center for Teaching and Learning are happy to welcome Salome Ward for a few trainings today and tomorrow. This is around ADA training and direct threat. I hope that's why you're here.

Yes?Okay.

So what's going to happen today is we don't have PowerPoint slides that we're going to display. We're going to actually send them out to you.

They're really more process slides that talk about cases that you can kind of interact with and then you can ask questions.

We will send out the PowerPoint slides that go over the basic process to this stuff via email.

Okay?So you don't have to take notes if you don't want to because you'll have the

slides later.But she's going to go over specific cases that are relevant.Are we good with that?Yes.>> Can we get copies of the realtime captioning as well?>> BREE CALLAHAN: You want copies, if you're nice to me, I'll give you copies,

yes.Yes, we can do that, no problem.So Salome Heyward is a 30 year in the field, professor, practitioner. She's been

around and seen a lot of stuff.She's been in my role, ADA compliance officer. She's been on the "Today"

show.She's a cool lady and is a great person to kind of talk about this stuff in a very,

very basic easy to understand way.So I hope that is what you get out of this morning.Do not hesitate to ask her questions.She'll be bluntly honest, hopefully not to a fault.With that I want to give her the most time possible.So come on down. [Applause.]>> All right, good morning.I'm saying good morning but I have been here so long from the east coast that I

really have no clue what time it is.And -- nor does it matter, I guess at this point.Direct threat situations.I was at ETS a week ago.And during that week, there was a news report that a Princeton student had sued

the university and eight administrators over the fact that because he attempted suicide, he had been first removed from the dormitory and then subsequently he said forced to leave campus.

They said he agreed to a voluntary medical leave.This is now a case that will be litigated.One of the things that case brought to mind is that when we talk about direct

threat situations, we are less comfortable about how we handle those situations than we used to be in the past.

In the '80s we thought we had a pretty good handle on direct threat situations and what we should do.

And then along comes Virginia Tech and the University of Alabama.

We have revisions to the ADA and how we define direct threat.Our student population and the population of our campuses is significantly

changing so that the traditional model of providing counseling services and working with people who may have some issues related to direct threat is also a change for us.

In many of our campuses because of the GI bill we have a huge population of vets that are now on our campuses.

So we have issues of post traumatic stress syndrome.We have our student profile is very different than the 18-21 or 22-year-olds that

we traditionally dealt with.We have lots of people who are returning to school who are older workers.So we have all of these kinds of issues.And the larger our campuses are, the more they're communities where we live,

we're there 24/7.All of the issues that come from just people's daily lives raise concerns when we

talk about direct threat.So what I want to do this morning is talk about some actual cases and how the

Department of Education and the Department of Justice has looked at the institutions' response, whether it was in compliance or out of compliance to give you some sense of how direct threat that area of the law should work in a campus or post secondary environment.

And we're -- you know, we're going to talk about it.We can talk about direct threat from the employment perspective as well as the

student perspective.I would encourage you, as I go along -- you know, you don't have to save your

questions until the end.If you have a question, please go ahead.Don't hesitate to ask it.Because what happens in this area of the law is that we can change the facts

and we change the answer.So it's very important for you to raise whatever questions or concerns you might

have as we talk about direct threat.So let's take, to begin with, two cases on this issue of what represents a direct

threat and how we should respond to it.In the first case we have the Dean of a business school who has just hired a new

faculty member. And the semester is about to start. Suddenly he requests a meeting with the disability services coordinator. And he comes in to meet with his coordinator and he says, "I've got an issue with a new faculty member."

And the coordinator says, "What's the problem?"And he says, "Well I've heard that this faculty member is bipolar.And we need to make sure that this individual is taking her medication and that

everything is that her response is proper, that she interacts properly with students, that we have no problems related to her condition."

And the coordinator said, well, why would you suspect we'd have some issues?Did she ask for accommodations?

Did she provide -- did she come to you and say I have this condition I'm going to need to be accommodated?

Why are you bringing this up to me?And the chairperson says, well, no, I just heard this from a colleague.That she's bipolar.She hasn't brought it town me.She hasn't said a word to me.I just heard it from a colleague but we need to be on top of this.And the coordinator says well -- because the coordinator for this institution was

the ADA 504 coordinator.She dealt with employment as well as student issues.And she said well, if we -- if she hasn't requested accommodations, if she hasn't

identified herself as needing anything, if there hasn't been -- there hasn't been any issue, how could there be, you just hired her and the semester hasn't started.

So there's really nothing for us to do.You just need to relax and calm down.So the chairperson goes away.coordinator thinks the issue is solved.Three weeks later the semester started, the chairperson is back in her office and

he's like we have to do something now.And she says about what?Well, I told you about this faculty member who is bipolar, I sat in on her beginning

meetings with some of her classes and the things that she was saying and how she was interacting with the students was making me uncomfortable.

And the coordinator said so what exactly did she say?What exactly did she do that made you uncomfortable?Basically the chairperson said that he felt it was inappropriate that the faculty

member in interacting with the graduate students was using some of her own life experiences to discuss issues with the students, that he felt like that was inappropriate.

And the coordinator said, "If you didn't know that this person was bipolar and you had -- you saw another faculty member using their own life experience to interact with graduate students who you have a problem with it?"

And the chairperson kept insisting it's a problem, we need to make sure the person is on medication.

Now long and short of it was that the coordinator said, okay.She called in the head of the counseling center to meet with the chairperson.And through discussions with the chairperson, and interestingly enough, for me,

this was one of my client institutions so I got invited to the meeting as well.So we're sitting there and we're trying to figure out what the chairperson's

problem is.And we go back and forth and back and forth.And finally, the head of the counseling center, we gather that what happened and

what was going on with the chairperson was that he had a friend whose spouse had been bipolar and because of the friend's experience and everything that had been reported to him by his friend about how horrible the experience was to have someone

in the family who was bipolar and he had described to the chairperson the ups and downs of the condition and personal threats and all of the terrible experience that he had been through, this is what the faculty member -- the chairperson was responding to.

And so we ended up the meeting by basically saying okay, we believe the faculty member is fine.

You, on the other hand, chairperson, may need some therapy.And you might want to visit with the counseling center director for a while until

you calm down.But what this represents, this particular case represents many of the cases that

Department of Justice or Department of Ed deals with where we speculate simply because we are aware of someone's condition or disability.

So that what we do is we fill in the blanks and we say oh, my God, this will be a terrible problem, you can't possibly do this job. Or you can't possibly be a student at this institution. So the first thing that we need to understand about direct threat is that we don't get to speculate. We have to have actual evidence, actual information, objective evidence and information that's in front of us that would lead us to conclude we need to look closer at this to make a determination as to whether or not we have a direct threat situation.

Case number 2: We have an individual on a college campus, on a university campus who basically threatened to shoot a faculty member. He was so upset because he had been -- he was a -- seeking to enroll in a graduate program. But he had not completed his application for the program. He hadn't taken the GRE and submitted his score. And he hadn't completed the application process in terms of what his goals were and discussions of the program that he wanted to enroll in. But this was a university that would allow individuals who hadn't yet completed the application process to enroll as nondegree seeking students.

So he could take graduate courses. And the institution allowed him to take graduate courses without completing his application for two years.

And finally, they -- you know, in the start of the next -- the third year, they said no. And a part of the reason that they said no was that he had made no attempt to complete his application and every single course he took the semester before, he had received a failing grade in.

And so the chairperson said -- the Dean said that's it. You need to complete your application. We're not going to allow you to enroll in any more graduate courses.

Had a huge argument and fight with the chairperson insisting that he be allowed to continue to enroll in courses. Chairperson stuck to his guns and said absolutely not. He threatened the chairperson, and this I found interesting. He filed a complaint and alleged disability discrimination. When the OCR, the department of education investigator called him about his complaint, he threatened the faculty member to the OCR investigator. He said I am so furious with this guy, I might shoot him in the head. He sent a number of aggressive and intimidating e-mails, any and everyone who would listen to him, he talked about killing the chairperson

what the institution did was say to campus police, this person is not allowed to be on campus any more.

Okay. This is a good example of a case where yeah, you have a direct -- possible direct threat situation and it's appropriate for the institution to take some action. So that subsequently, when he sued the institution for removing him from campus, he certainly lost that case. Because he was actively threatening a faculty member, being aggressive and persistent and arguing his point and in fact, the institution didn't have to wait until he showed up with a gun in the faculty member's office before it took action. So that's the first thing we need to understand about direct threat situations is you have to have some actual objective evidence of behavior that makes you now go we need to look at this as a possible direct threat situation.

next case: We have a student who is admitted to a college. The student shows up with his parents for the initial orientation scheduling meeting. When the student shows up with his parents for that week, the parents seek out the Dean of student life and says to the Dean "what kind of counseling services do you have on campus?

Because our son will need to do some counseling or therapy sessions related to his condition."

And the Dean referred the parents to the counseling -- the director of the counseling center. Dean said, "well this is who you see if you believe your son is going to need therapy or counseling while he's on campus, you start with the director of the counseling center."

Parents said fine.Met with the director of the counseling center that week, said our son has a

psychiatric condition. He's in therapy now. We're -- they gave the son and the parents gave the counseling center director permission to talk to his treating physician, the son agreed to meet with the counseling center director. Counseling center director has his first meeting with the son. Hiss impression of the meeting with the student is the student is uncooperative and the student basically says I'm not interested in doing a lot of therapy. I might meet with you once or twice a month.

So his impression -- the impression of the counseling center director is that here's a student that's really not open to regular therapy or counseling sessions. He then -- because he was given permission to contact the student's treating physician, psychiatrist, he called up his psychiatrist and the psychiatrist said, "He needs to be in therapy sessions weekly. Absolutely necessary that he be in therapy sessions weekly."

He then followed that up by saying "he has issues of suicide and you will not be able to tell beforehand whether he's at risk. There are no -- there are no signs that you will see. So it's important that he's in therapy weekly."

So that's the first bit of information. Psychiatrist follows it up by sending the students records which the student and parents have given him permission to send. And the records reflect that the student was diagnosed with depression and had made two suicide attempts in the past. Subsequent to this bit of information, what next followed for the director of the counseling center is that roommates, persons in the residence hall began to express concern that the student was talking about suicide and death a lot. The next thing the counseling center director found out was that the student was not taking his medication that his prescription had lapsed. So he heard this bit of information. He then he then seeks the student out and gets the

student to agree to meet with him again. A month has passed.In the interim he calls up the student's treating physician again and the treating

physician says "absolutely, he needs to be in therapy weekly. If he's not interested in meeting with you, you probably need to find someone in the community he might be willing to meet with. Because it's imperative that he have weekly therapy sessions."

When the student comes to meet with the counseling center director the second time, he says, "hey, you know, if I decide to kill myself, nobody can stop me. If I make that decision. And here's another little bit of information, they think I only made two attempts on my life. There's a third attempt that nobody knows about." and that was the second meeting that he had with the student. After that meeting counseling center director goes to the Dean and says we have a situation. May day, may day, dive dive! You know, what are we going to do about this?

So parents were called, parents show up for a meeting. And when the parents show up, what was presented to the parents was this. The Dean said, "You have -- you can either voluntarily withdraw on a medical basis, or we're going to involuntarily suspend your -- your son will be involuntarily suspended."

Parents objected. And so the institution involuntarily suspended the student based on everything that had gone on before.

So reasonable action on the part of the college?I'm sure most of you would go absolutely.Imagine your surprise when the Department of Education found the college in

violation of the law.How does this happen?It seems like if you're sitting in the counseling center director's seat, some action

needs to be taken, doesn't it?Does he have to wait until the student makes the fourth attempt?What this case reflects is that what is important in direct threat cases is the

process and the procedures that you use.And one of the common mistakes that colleges and universities make is they

take an emergency situation and they make a final determination. And what both the courts and the Department of Education say to institutions is yes, you have an absolute right to act in an emergency, but you cannot make a final determination in an emergency situation.

So what you are obligated to do is first address the emergency. So what would have been proper for the institution to do in the emergency and we can certainly argue that under the circumstances, clearly the college had an emergency.

You have a student that's reportedly not taking his medication. You have objective evidence from his treating physician that says this student needs to be in therapy weekly and he's refusing to do therapy. You have people reporting that he's talking about death. When the center director meets with the student, he, in fact, acknowledges that he's thinking about suicide and is talking about how he's made other attempts on his life and no one can stop him if he decides to kill himself.

So absolutely in that circumstance, it would be appropriate for the institution to say "We have an emergency, we need to take emergency action. Emergency action means on a temporary basis, you get the student in the treatment that he or she might need and then you make a decision about whether or not he continues at your

institution either in housing or continues to go to school: But you don't make both of the decisions at once. So one of the things or one of the issues that -- problems that colleges and universities have is they make final decisions in an emergency circumstance. And so they can -- they would be on strong footing to take emergency action, but not to make a final determination. Because if you're going to make a final determination, the individual is entitled to some due process.

You have to do an individualized assessment. You have to provide proper due process.

I'm going to give you two cases one in which the institution made the right decision on an emergency basis but dropped the ball when they made the final determination. One case reflects an institution that did it directly.

In the first case, again, we have a student who is in a housing situation and the student has a history of depression, he reports that he's been diagnosed as having depression. He doesn't ask for any accommodations. He -- everything seems fine the first month he's on campus and then suddenly, he posts a note on his door. And what he posts on his door is a discussion of the values of suicide. And then in addition to a discussion of suicide and its value, he's posted a collection of suicide notes. On his door. So what institution does is they have campus security bring the student to the counseling center director.

Counseling center director meets with the student and what he notices -- what she notices is that she had met the student previously. What's new is that the student has carved initials into his arm. So now she's concerned that the student is involved in cutting behavior and she's discussing what happened and why he posted the notes on the door and the stewed student said well, I need to raise awareness about suicide. You know, sometimes it's the best option for people to take. On the basis of that meeting and discussion, student is immediately suspended from the housing environment. And what the institution says to the student is you must be evaluated by a qualified professional. And you cannot return until you present evidence that you were evaluated and they provide us that evaluator tells us that it's safe for you to be here.

Student goes away for a couple of days, comes back with a doctor's note scribbled on a prescription sheet that says "Student is not at risk, is no danger to himself or others. Student can return."

In addition to that scribbled note on a prescription pad, the evaluator sends in a full report of having met with the student.

the counseling center director calls up the physician, the evaluator talks to him. Feels satisfied, they allow the student to return. And also return to the dormitory but says to the student you need to attend three counseling sessions and we want a full evaluation and report from the evaluator. And you need to submit this to us prior to the next semester because we're going to make a decision about whether you get to remain in housing.

They allow the student to complete the semester. Nothing much happens except two incidents happen during the completion of the semester, one, the student was taking a test in a private exam environment. And I guess he had some extra time after he completed the exam, so he drew some pictures on the blackboard. It was innocuous enough. Pictures of a man and a woman in a forest or something so he

drew pictures on the blackboard.And the other incident that occurred during the completion of the semester was

that the student injured his arm, had to go to an emergency room and he came in to the health center to have them check the dressing and when he came in, he had the discussion with them and he reported that he was angry about all of the time that he had to wait in the emergency room at the hospital to be treated and said, "If I had a tranquilizer gun, I would shoot them all."

Neither the nursing staff nor the counseling center's director took his comment seriously. They took it as a passed-off comment of someone who was just frustrated given the amount of time he had to wait.

So at the end of the semester, the committee meets to make a decision as to whether or not he will be allowed to live in housing for the next semester in the future.

now, as part of that discussion, what the committee decided, the committee in looking at the case didn't talk to the evaluator who submitted the report after the three sessions. Basically the evaluator after the three sessions that the student sat through didn't make a diagnosis, just said yeah, the student would benefit from some therapy but I don't believe the student is a danger or a risk. That was the gist of the evaluation. They didn't talk to the evaluator and didn't talk to the student. They met and said when they made their determination which was he would not be allowed to return to the housing environment, their evaluation was, well, you know, the fact that he did those three sessions doesn't indicate that he's serious about therapy. He just -- he just sat through those sessions because that was the only way he was going to get back into the housing environment for the remainder of the semester. So he's not really serious about his therapy.

And besides, he's in -- he is always in conflict with the environment. There is always something going on with him. He's not comfortable with the environment, so we shouldn't have him in the housing environment.

Interestingly enough, a part of -- another part of their decision as to why they would not allow him to return was their frustration over the fact that they felt that the student was very disruptive. You had the counseling center director, you had the Dean of Student Life, you had the director of residential life. And they all talked about the fact that he would take -- this student would take every issue or problem that he had, exaggerate it, kick it up to the highest administrative level, and they all expressed frustration over the amount of time and energy they had to invest in dealing with the student's problems. And in fact, one of them said, "I can't afford to invest this much time and energy on one student. He just -- everything that he's involved in is a drama."

And so basically, that was part and parcel of why they decided that the student could not return.

The Department of Education found them in violation of the law. They said absolutely to the institution, absolutely you had a right to remove him on an emergency basis based upon the notes he put on his door and the issue and concern you had about suicide. You imposed conditions on the student. The student met those conditions. You said to him go to three sessions. So you can't not use that to go hey, he's not serious about his therapy. What they said to the institution is when you have a potential direct threat situation, you are obligated to do an individualized

assessment. And based on that assessment you have to ask questions about the nature of the conduct. You have to ask questions about the individual's medical condition. You have to determine from looking at all of the relevant information, that there is a high probability of a substantial risk of danger or harm. And the committee did not do that. One of the things that OCR found significant was that they didn't talk to the evaluating physician to say hey, here are all the concerns we have. You didn't make a diagnosis, tell us more about this condition -- his condition in your evaluation because we need to know if there's a risk. They didn't have that discussion with the treating physician. The other point OCR found significant was they didn't have a conversation with the student before they made the decision. Because another piece of this is that the individual is entitled to due process, which means you need to provide notice to them on what the hearing is about.

And OCR said while you told the student that you were going to make your decision based upon his psychiatric condition surrounding the suicide issues, you also used issues of how disruptive he was to make your decision. And OCR said you didn't advise the student that those issues were going to be on the table. So he -- you didn't provide him notice that you were going to consider the fact that you thought he was a pain. You know, that you thought he -- you had to invest too much time. He was too disruptive of your processes. So you needed to provide him notice of that and you needed to give the student an opportunity to present his own evidence. That might refute your position that he's a direct threat or in the alternative, that he is so disruptive that he's not qualified to participate in your programs. So you have to provide notice, you have to prove there's a high probability of substantial risk of harm or danger if you're concluding that he's a direct threat. And ultimately, you have to give the student a right to appeal. So once you make your determination, there should be a right to appeal and to question your ultimate determination.

So while the institution was correct in what it did under the emergency situation, it was incorrect in the process that it needed to follow to ultimately determine that the student was a direct threat and should be removed from housing. So the proper procedures have to be followed. How do you do it correctly?

there's a case involving an employee who -- a part of this individual's profile was

that he was an okay employee. He -- you know, throughout the years had some ups and downs with his immediate supervisors, but by and large, he was okay

He was diagnosed as bipolar. But you know, had worked for the institution for about 10 years and nothing really serious had occurred. What happened is his immediate supervisor was promoted. And the -- his immediate supervisor, you know, basically said "Well, you know, Jim has some issues. But I know how to deal with Jim and Jim and I have gotten along for 10 years."

And what happened when his immediate supervisor was promoted, the person in line to take -- the people in line to take that job were all women.

And this fellow began to loudly pronounce that he could not under any circumstances be supervised by a woman. And there was a lot of back and forth about that and his -- the supervisor that was departing met with him and said come on, Jim, you need to calm down. It's no big deal and nothing changes. So what?

It doesn't matter who's sitting in the chair. Just do your job. That kind of thing. Calmed him down for a while. Female supervisor hired.

Jim was okay for about two weeks. Then there was some issue related to a project. Supervisor called him in. She and Jim had a disagreement. Jim sort of lost it in the workplace. Threw things around. Stormed out of the office. Yelled and screamed about killing people and this and that. And on that basis, when Jim sought to return to work the next day, campus security did not let Jim in to the office.

and basically. Jim, the institution required that Jim get evaluated and submit

evidence that he wasn't a risk or a danger to his immediate supervisor or anyone else. Jim presented the evaluation.

The subsequently what the -- Jim came back, was allowed to come back to work. There were a number of other interactions between him and his supervisor. Jim threatened to shoot her in the head. You know, so Jim was again removed from the work environment.

And at this juncture, the second time around, the institution required Jim to be evaluated by a psychiatrist of their choosing.

The evaluator and Jim agreed to that. He was evaluated and the report that came back was under no circumstances should you allow this man to return to the workplace. And what the evaluator said was that these people are imminently at risk and in danger. He needs to be in therapy for a considerable period of time. He is absolutely a risk to the employment evaluation until he gets into serious therapy for a period of time.

So they put Jim on short term disability. Said Jim in order for you to return to work, you need to be evaluated. We need to see that you're in therapy. And that report needs to say to us that you are no longer a risk. That you are in treatment. You've received treatment and you no longer present a risk.

2 1/2 months later Jim presents with a report from his evaluator that basically says Jim's not a risk, no problem, don't worry about it.

The employer based upon what their evaluator had initially said and what Jim's evaluator said, we're at two extremes here.

And so what the employer said, what the college said was Jim, we don't have any basis on how your evaluator reached the conclusion. We don't know how much therapy you received, how much treatment you received. We don't know how these two reports in a 2 1/2 month span can be so opposite of each other. We don't have a diagnosis of anything from your evaluator. So we can't let you come back to work on this basis. What we will offer you on an interim basis is that you can be seen by the first evaluator again and that evaluator will talk to your evaluator and see if they have a meeting of the minds as to a basis for their conclusion or we'll come up with a list and you can pick a third evaluator. But we need to be satisfied with what the diagnosis is and make sure that we can have a report that makes sense to us under the circumstances.

Jim refused. Sued the college.Jim lost. Because what was -- the institution had perfectly -- had handled it in the

correct way. They had provided him due process. They gave him an opportunity to appeal their determination. They gave him a choice on how to resolve the

disagreement that they had in terms of the nature of evaluations that were in front of them. And so they could not satisfy themselves that there wasn't still a substantial risk given Jim's previous behavior. And there was nothing in front of them that said to them that Jim would be any different than he was when they let him come back the first time. Especially given the fact that Jim continued to make statements about having a female supervisor. That made them uncomfortable.

So they did absolutely the correct thing.They provided clear notice on what their decision was. They provided him due

process. They allowed him to do his own process and they offered him a third evaluation to try to resolve the conflict in front of them. So what's important to EEOC as well as justice and the Department of Ed is that you follow the proper process.

They are perfectly happy to defer to the judgment of the institution. Because from their perspective, you're standing in the spot where you see the potential danger.

So largely they defer to the institution on emergency situations. So it is rare that they will second guess your judgment as to whether there's an emergency. But what they expect to see after you take that emergency action is that you have done the proper individualized assessment and you've provided proper due process to the individual before you've made an adverse decision. Taken their job, removed the student from the dormitory, suspended the student -- any of those adverse consequences requires the institution to do the proper individualized assessment and provide due process to the individual.

Which allow them to present evidence to refute your belief that they're a danger, which allows them to appeal the ultimate or final determination.

So you know, those are the kind -- that's what the -- both EEOC, the Department of Ed, and Justice looks for. Did you follow the proper process and afford proper due process?

Now, here's the other piece of that: Even if you establish that there is a high probability of a substantial risk, that this person might be a direct threat, or in your mind, you've concluded that there's a direct threat, you are also required to determine whether there is an accommodation you could provide that is reasonable that would remove the threat. So that the individual could exist in the environment. Let me give you an example of what I'm talking about.

There was a student enrolled in an institution that the student was on the spectrum. Was diagnosed as having Asberger's syndrome. One of the manifestations was that he had difficulty interacting with people and if he was perceived that he wasn't being paid tension to, if he perceived that people were making fun of him, he would react in an aggressive and argumentative fashion. And so what happened with this particular student is he was in an art class. He was working on a project. He perceived that a fellow student was making fun of him. He threatened to kill the student. He had an Exacto knife in his hand. He didn't approach the student. He just threatened to kill the student because he thought the student was making fun of him. He then left the classroom, called himself down, came back, finished his art project.

Now, what the institution did with respect to this student was, because of this interaction, they filed a police report and they -- the police -- they asked the police to

charge him with assault.They then said to the student you can no longer be in this class. You have to

complete this class as an independent study. All of these things that were done because of that reaction. And what the Department of Education said to the institution is wait a minute. You have to consider whether there is an accommodation you can provide to this student that is less extreme than the actions that you've taken. Because a part of the discussion that came out of when the student was -- the police refused to press the case of assault because when they looked at the facts, they said nothing happened. It was an off the hand comment. He didn't approach the other student. He didn't try to attack the other student. They said we're not filing a case of assault.

When they looked at the documentation related to the student's condition, what was suggested by the student's treating physician was that you give the student an opportunity to remove himself, to calm himself down. You counsel the student on what are appropriate responses in the environment. And the institution said no. He needs to be in independent study. The Department of Education found them in violation because they said to the institution, you are obligated to consider the accommodations that are suggested and make a decision as to whether it is reasonable to provide the student that kind of opportunity. What was suggested was that they give the student an area where he could take himself to calm himself down. And then return. What's the same as what he did in the situation, he went outside and calmed down and was able to work. What the institution said was no, you have to sign a contract that your behavior, you will never react this way again. And what the Department of Education said is you have to determine whether that's a reasonable accommodation. Is it reasonable to give the student a place where he can go, calm himself down, allow him to remove himself from the situation, calm down, and return to class.

So you're obligated to consider whether there's a reasonable accommodation that can be provided. Yes.

>> AUDIENCE: In your previous example with the employee named Jim, he goes into the meeting with his supervisor, a female and says things that are -- pointedly threatening. And then he goes on leave and comes back with the evaluation that says he can return to work.

He comes back the second time and let's say the second time when he comes back he loses his cool but not quite as in as pointed a fashion. He's not necessarily threatening anyone. He's acting very -- he's angry at times, moods are changing quickly. People are getting very nervous about him. But nothing that actually goes to the point of threatening to harm someone. How does that change, the university's obligations or ability to put him back on medical leave.

>> SALOME HEYWARD: If the institution, if the university allowed him to return based on that second report that was so extremely different than the first one and said okay, we're going to accept this, and what his response was was something less heated and, basically, you know, I hate my supervisor, he storms out, he calms down, he comes back, he gets back to work.

You know, if you accept the evaluation that says this guy isn't a direct threat, then the institution would have to have some other objective evidence that puts them back

in the direct threat environment. So, if his response was something less than threatening, it wouldn't rise to that level. It may rise to the level of inappropriate behavior on part of employee and interactions with supervisors and may be disruptive, it may be insubordination, but we can't kick it up to direct threat if you've allowed the person to return and the reaction was not that extreme reaction. See, every time you know once you let him come back, you need additional objective evidence or behavior that is more of the same, that allows you to go we still have a direct threat situation.

>> AUDIENCE: Do you have any examples where you feel like a federal agency has supported direct threat when there hasn't been like an I'm going to harm you but something where they haven't threatened to harm someone but --

>> Like substantial delusions or something like that>> SALOME HEYWARD: .>> SALOME HEYWARD: There are a number of cases where either the

employee or the student has just been aggressively arguing.You know, there was one -- there was a case where a student was upset about

his grade. And he didn't threaten anybody. He just kept arguing about his grade. He kept showing up in the office, just kept continuously making his case, you know? And so much so that the staff was uncomfortable about how aggressive and persistent he was in just arguing this point. He wouldn't let it go. He kept sending e-mails. Now, if you looked at the tenor of the e-mails, he was just pressing his point. He thought his grade should be changed. He didn't threaten anybody physically. He just wouldn't let it go. He would show up in the offices unannounced. Interrupt meetings, all of this kind of stuff. Nothing physically threatening. But in that case, the Feds deferred to the institution's assessment that they should take emergency action because people felt threatened.

You know, so they don't want to step into the shoes of the institution on what is judged to be an emergency. And it makes sense because hindsight is always 20/20. And so by and large, the courts and the Feds will go okay. If you think this is an emergency, okay.

What's your objective evidence? We're pretty much going to allow you to make that decision. But, before you take any further action, you need to make sure that you provide proper due process and we protect the rights of the individual. But they pretty much allow the institution to decide what they consider to be an emergency as long as it's not total speculation like the first case. Where you have zero evidence of a problem whatsoever.

Yes, ma'am. Then I'll come to you, sir.>> Back to the same case, we have a zero tolerance policy for workplace

violence or making threats?>> SALOME HEYWARD: Zero tolerance for?>> Making threats in the workplace, like direct threats. So we wouldn't assume

necessarily that someone had a medical condition. We would just move at it from a policy violation perspective. So I'm wondering did that institution not have a policy that --

>> SALOME HEYWARD: But here's how the policy thing works. It's sort of like, you know, a disruptive behavior case involving a student. If the person is behaving

inappropriately and your policy says we have zero tolerance, we're going to suspend you, or send you to HR, if you do these things, same way we'd say to a student we'll bring you up in front of the honor code or disciplinary committee if you're guilty of this.

Okay. Absolutely, you get to apply your policy and you might not be concerned about whether or not the person has a disability. You don't have to be. Your policy is clear on its face. However, if in response to the action you take the person goes oh, but I have a disability and requests a modification of the policy as an accommodation, you have to consider that request. Now, what you don't have to do is excuse the inappropriate behavior. Because if we're going to accommodate them, we're going to accommodate them in assisting them in meeting your standard of appropriate behavior, not excusing inappropriate behavior.

But you can't just simply go no, we're not going to consider your accommodation request. Yes, sir?

>> AUDIENCE: I just wanted to go back to the previous case with the Exacto knife. As you said, the police said there's nothing to think that this was actually an assault. But you have two students in the class who say we can't stay in this class with that other student because we feel threatened. So giving him the ability to go outsides and calm down, it doesn't calm us down. We are nervous to even be around this student. What -- what happens then?

>> SALOME HEYWARD: Well, you know, part of what the challenge is is how we balance the competing behavior. It's much the same as we were talking about this morning. What happens -- you know, this is the very situation you have where someone has an outburst, gets removed, say we take the guy with the supervisor. Gets removed. Now he's coming back. He's got any -- he's met the conditions of returning. He's got an see valuation that says hey -- evaluation that says hey, he can come back into the workplace, no problem. He's in therapy, whatever. Everything's solved. He'll behave in an appropriate manner. Those people who sat through him throwing the desk and yelling at the top of his voice threatening to kill someone, understandably apprehensive about his return. The balance for the employer or the institution, if it's a student in the classroom or a dormitory situation is how do you counsel and work with those two sides?

It's perfectly appropriate in that situation to have a meeting with the coworkers and say here's why we are satisfied that Jim or the student can return. However, if you feel concerned or there's something going on that bothers you, here's your options. Here's who you can talk to. You know, here's how we're going to help you with the issues that you have.

Same thing for then the student. Because the student comes back or the employee comes back and people are treating them differently. Why?

Because that outburst has happened. So how we need to counsel that individual is look, it is understandable that you might get treated differently because here's what happened. Put yourself in their place.

Here's who you come to the second you start to feel upset or concerned about how you're being interacted with to sort of -- this is how you navigate bringing those folks together.

Having said that, there are some situations where either the person doesn't feel comfortable coming back into the environment where the eruption happened or the individuals in the environment can't effectively operate. So now you have to consider some other options. About are we going to allow them to move to a different class?

How are we going to deal with what are legitimate concerns?But the institution has to address that on both sides.>> AUDIENCE: Thanks.>> SALOME HEYWARD: Yeah. Yes, ma'am?Very back.>> AUDIENCE: Hi, I was wondering if the Department of Education or the

Department of Justice, if they make a distinction between feeling threatened and an objective threat?

Because it seems like there would be some cultural implications in the interpretation

>> SALOME HEYWARD: Sure. So the question is does the Department of Ed, EEOC, justice make a difference between an actual objective threat or a feeling threatened. Absolutely. That's why, when we talk about defining a direct threat, we talk about it in terms of actual objective evidence of a high probability of substantial risk. That's why we talk about things like in my first example, we're not going to speculate. We're not going to respond to someone's own personal -- you know, I'm afraid of people who look like this. People who wear green socks or, you know. It's sort of culturally, and I'll talk about my personal experience, culturally in a situation you might be in an environment where people will react differently to me if I respond angrily because that's part of what they come to the table with, then they would possibly react if someone said exactly the same thing and with the same expression of anger who happened to be of a different race. That's just natural.

Are we then going to say I'm a direct threat because their reaction to me is more extreme than the other person but we said exactly the same thing?

No.That's why we have to have actual evidence. And there has to be a high

probability that there's a risk involved.So we don't speculate and we try to take those kinds of distinctions and reactions

out of the equation. By requiring the institution to do that individualized assessment. To have the actual evidence, concrete, relevant information that says yeah, there's a threat here.

Other -- yes.>> AUDIENCE: Thinking back to the Jim case, I was just wondering if there are

any issues we should keep in mind around perceptions of disability?It seems like in Jim's case, they didn't have any information that he might have

some kind of medical condition, but they required a psychiatric evaluation. So any issues there we should be aware of?

>> SALOME HEYWARD: Well. We can't -- you know, in terms of our perception and speculation, we can't just assume that someone has a psychiatric condition.

You know? Jim's behavior would lead the institution to say we have an emergency situation here. What the courts and the Department of Ed and EEOC has

said to employers and institutions is that if you have something in front of your face that's objective, you can request, as a condition to their return, some evaluation that says hey, this person can be in this environment without a danger or threat because it appears to be some kinds of psychiatric issue going on.

You know, the person who is threatening suicide. The person who said I'm going to kill someone. You know, and if they come back with a psych eval that says no, no diagnosis, no need for therapy, this person can return to the work environment, and they subsequently the behavior is still the same behavior, then the judgment might be they're so disruptive that they can't be in the environment and you'll apply your no tolerance policy or whatever policy to take action.

But, if the behavior feels like there's a psychiatric problem and it's an emergency situation, absolutely the institution can say we need some kind of evaluation because this behavior seems to inappropriate in the environment. Okay?

>> AUDIENCE: I have another question. What kinds of objective evidence can you consider?

Can you consider, perhaps, a police report or an arrest of something that occurred, you know, unrelated to the university but you may learn about it?

Can that be considered by the institution as yet another factor in what action to take?

>> SALOME HEYWARD: The best answer to that question is you want to consider evidence that is relevant to the person's behavior within your environment. The only time we're going to drag in something else is if it is evidence of a similar behavior in a similar circumstance that -- and it's contemporaneous with, you know, we're not going to go back five years and go Jim did this five years ago.

But, if Jim had a similar outburst you know involving females three weeks ago even though it might not have been on the campus but it was around the same kinds of reactions, yeah. Then there's a history of behavior that might tie in to what's happening to him in the workplace.

But you want to be focused on what's happening in your environment and how it impacts his participation in that environment. Yes, ma'am, very back.

>> AUDIENCE: So I appreciate the perspective sort of best practice on the institutional part to work with Jim's colleagues or the art students in the classroom to think about when the individual is come back into the classroom. And yet, I'm curious, in the absence of telling the other people involved that there's a disability, which I assume would be violating the student or the employee's rights, how does that conversation proceed?

>> SALOME HEYWARD: Well, you're talking about what happened in front of their face. You don't have to disclose any medical information. You're basically going we're all aware that this is what happened with Jim or the student. He's returning. We believe things are fine. If you have some concerns, here's who you need to talk to. You don't have to disclose the student's medical history. You don't have to disclose Jim's medical history. You're just working with bringing people back into that particular environment. And you're dealing with the issue that they -- what

they experienced. And that's common knowledge.>> AUDIENCE: It could be -- it would be a very unusual situation if you had two

of these instances in one classroom but, if you had a student who did not have a diagnosis and subsequently had a student with a diagnosis treated in a different way, I guess that would raise that question, but you're right, we'll stick to the facts.

>> SALOME HEYWARD: You stick to the facts.>> AUDIENCE: A comment about the background check, criminal background

check. Just reminder to folks that if you -- Washington State law around when we as institutions can look at someone's criminal history, so you want to make sure that you talk with HR or someone from the AG's office before you decide independently to kind of do research if you're concerned about someone.

>> SALOME HEYWARD: Okay. I wasn't exactly sure you were talking about a criminal background check but that's a good point to make. Absolutely, I agree. You always have to be mindful of what your state law statute says about such things. Other questions before we touch on a couple more issues?

Okay. So we've already sort of talked about disruptive behavior. And what we need to understand concerning disruptive behavior is that you can make a judgment that the individual's behavior is so disruptive that they are in violation of standards of acceptable behavior within your environment if we're talking about employment situations and that some disciplinary action needs to be taken. Or if it's a student, they're in violation of the student code.

And absolutely, both the courts and the Department of Ed and the Feds have said clearly that you don't excuse that behavior. That the proper accommodation is not to simply excuse the behavior. That the proper accommodation is to assist the person if there is some way to provide a reasonable accommodation that allows them to meet the standard of acceptable behavior.

There was an interesting case involving a student that had Asperger's and he was enrolled in a course in which it was a discussion course. It was a philosophy course. And basically, what the faculty member did was the faculty member would announce topics of discussion. And he would allow the class to debate the issues. There were no right or wrong answers.

They would debate the particular topic for a while and then he'd move on to a different topic. And it was sort of a exercise in critical thinking and you know, philosophy and how you logically make your point.

Now, one of the manifestations of this student's condition is that he needed to be right.

And so what happened in the class finally, the faculty member went to the disability services coordinator in utter frustration because the faculty member said "Look, every time I try to move to a different topic, he won't let it go. He keeps making his argument. He keeps trying to get everybody to agree with him. And I can't conduct class under these circumstances."

And so what happened in this particular case was that the coordinator met with the student and said okay, here's the manifestations of your condition. Here are some clues or some things that we will do to help you with this. You need to be able to let it go.

And the coordinator also worked with the faculty member and said okay, here's

the statement you make when you're ready to move on. That statement is a cue to the student that it's done. It's enough. We're moving on.

And that's -- that's how they sort of accommodated the student in terms of her -- his behavior. And he made it through the course.

But up until that point, the faculty member was just utterly, you know, distressed with the notion that the student wouldn't allow him to conduct his class in the normal way

>> AUDIENCE: Was that student a student who was already registered with disability services?

>> SALOME HEYWARD: In this particular case, yes.>> AUDIENCE: What if that student wasn't registered with disability services and

we thought that might be something that is going on in the classroom?Would we follow a similar set of procedures or guidelines or would we do

something slightly different?

>> SALOME HEYWARD: If the student wasn't registered with the disability services office it's sort of the way in which we communicate with our students and sometimes employees. You can go okay, this is unacceptable behavior.

You know? The faculty member -- you're being disruptive in class, faculty member has a right to conduct the class in the normal way. You can engage the student in a discussion about what's going on with him or her. And then as a part of that discussion, you could suggest to the student, you know, this may -- if the student discloses that they have a disability, you could suggest to the student that this might be a manifestation of that. You might want to go to the disability services office where they can provide you with some assistance and maybe an accommodation that might work in the environment. But the student has the option to say no. No, I don't want an accommodation.

In that instance then, you would treat that student in the way that you would treat any student that was being disruptive in the classroom environment.

Whatever your code of acceptable behavior or disciplinary action would be for a student who was disruptive, you could certainly impose that penalty on the student. Because, you know, clearly if the student is so disruptive that the faculty member can't conduct class, student can be removed from the class whether they have a disability or not. You know?

Disability comes up if we're now seeking to try to accommodate the behavior so that the student can respond in an appropriate manner in the environment.

Yes? >> AUDIENCE: I stepped out so, if you already talked about this, that's fine.Can you talk about the knew or should have known standard in the sense that

you know, often a student will say well, I have this and -- but maybe either they're not making the connection or don't want to go to disability services office. But we know -- everybody knows. Would you do a more perhaps direct communication to the student, you disclosed a disability. I want to make sure you know this.

You know? Something to that effect?

>> SALOME HEYWARD: Well, but keep in mind for the student as well as the employee, the information belongs to them. They can choose to request an accommodation and disclose or they can choose not to. It's up to them. You know, now having said that, they are also married to the consequences of their decision.

So you know, if they choose not to seek assistance to disclose they have a disability or if you try to counsel with them and make recommendations that perhaps they want to go to the disability services office or HR and receive some assistance and they go no, I don't -- you know?

I'm fine, then the consequences of their behavior, they're really stuck with. It's sort of like we can't force individuals to accept accommodations. They get to choose.

You know? So there are many, many instances where student or employee doesn't want to disclose.

You know? They just want to handle it themselves. And this happens a lot on the HR side. I see many of these cases where nobody's disclosed, nobody asks for accommodations. Now we're at the point where the person's being disciplined or might lose their job and suddenly it's like oh, but I have a disability.

Students do that as well. They get -- you know, there was one case in which a student said absolutely not, I don't want accommodations. The parents called the disability services office. They wrote the student. The student said no, I want to try it without accommodations. Failed the course. Then the student's like yeah, but I have a disability. Too late.

Because you're stuck with the consequences of the decision that you made. All we can do -- all you can legitimately do is counsel people but they get to make the decision.

>> AUDIENCE: And when you say they wrote to the student, I guess that's what I'm asking is how much of a record do you want to create once they have disclosed, you know, of hey, remember, you can go. I mean, to what -- how many -- how much do we have to --

>> SALOME HEYWARD: But it's like the counseling you do with any student or employee. Here are the services that are available for you on this campus. It's like if you're an employment situation, you say to employee that's having trouble, you can go to employment assistance, you can go to -- you know, if you think you need an accommodation, here's the office you go to.

You're having problems -- you know, there's short term, there's long term disabilities. There's FMLA. You provide to people what their options are and they get to choose, or not as the case may be. But the decision belongs to them.

One other case about qualified status. Because when we're talking about disruptive behavior, we're really, particularly with respect to students, one of the things we wrestle with in direct threat, the definition of direct threat even though we read into it that the person is a danger to others or themselves, the definition in the regs is that direct threat equals danger to others. We're not talking about people being a danger to themselves. So what do you do when a person is trying to commit suicide or they're a danger just to themselves?

You can make a judgment that the person is so disruptive to your environment, that they are not qualified to continue in the environment. Let me give you a case example of what I'm talking about. One of the client institutions I work with over a

holiday season had a student in their housing environment that kept threatening suicide. She would threaten suicide. She would make aborted attempts for suicide. They would call emergency. They would come pick her up. As you well know in most places they can only keep people for 72 hours. Necessity would hold her -- they would hold her for 72 hours, release her and she'd go right back to the dormitory and start the whole thing over again.

So after three occasions of her being taken out, taken to the emergency room, being held for 72 hours, her refusing any therapy or treatment whatsoever, the institution is like well, you know, can we make a decision to remove her from housing?

Absolutely. If she is so disruptive to your program that you cannot conduct normal business, normal activity, then you can make a judgment that the student or the individual is not qualified. And then begin the process of removing them from the environment. It's like the case where OCR said to the committee that said to the student you can't live in the housing in the future. OCR said you absolutely could have initiated a decision based on how disruptive he was when you said oh, we're investing too much time and energy with his issues. You could have made that determination. But you're obligated to give him notice that that's the basis of your decision and then to provide proper due process. So he can say wait a minute, I -- you can accommodate me or I'm going to request an accommodation related to my behavior.

And you -- or he could appeal your ultimate decision. But you have to provide notice that's the basis on when you're making the decision. So you know, if someone is so disruptive that you can't conduct normal business, it's very much the same as the example of the student who wouldn't let the faculty member conduct his class. He is so disruptive that the faculty member could not conduct his class and conduct normal business.

That makes -- raises the question of the qualified status of the student. Another case of potential direct threat and qualified status involved a student enrolled in a medical office tech program.

And the student was HIV positive. And what the student said was because a part of what they were required to do in a class was they were required to draw each other's blood.

And so what the student said is "I don't have any problem drawing other people's blood. But because I'm HIV positive, I don't want people to draw my blood."

And so the accommodation that the student was requesting is that he not have his fellow students draw his blood because of the potential danger. And what the decision that the program made was that he was a danger to staff and students and he should be kicked out of the program.

And what the Department of Education said was wait just a minute here! Okay?You have sort of skipped ahead here. You're making a decision on the qualified

status of the student and a potential danger but there's several steps here. You know, what's the probability of the risk?

Is there -- is it a reasonable accommodation to say no we're not going to draw this student's blood but allow the student to remain in the program?

so the institution was in violation because they didn't do a proper assessment of

whether they could reasonably accommodate this student before they just leaped over all of the intervening discussion and said no, you're such a danger, you can't possibly be in this program. You should enroll in a computer program. And the standard in the law -- and there are many, many cases involving folks who were HIV positive. There's an employment case of a person who worked in a hospital.

The standard is CDC. You adhere to CDC standards. CDC defines what's safe in the hospital environment and in other environments and that's how you judge whether there's a potential harm or probability of a substantial risk. So OCR said to the institution, you need consult CDC standards. You needed to consult how your fellow institutions would handle this particular situation. And what would be an appropriate accommodation?

Okay? So couple of other cases about how we reasonably accommodate individuals. There was a doctor in a residency program. He was medical employee. And basically, the issue was he had problems communicating with nurses. Had problems communicating with his colleagues. There were all kinds of issues of patient safety because orders would get confused.

He would write orders that were considered to be dangerous to the patients so patient health and safety was a huge risk. And what they were wrestling with with respect to this individual. And he was based on -- they put him on a -- sort of a program where he was closely monitored by other doctors and they said -- you know, we're going to give you two or three months to improve. And so they put him on this program of improvement. Didn't seem to improve but during the two or three months he got evaluated, he was diagnosed with having an attention hyperactivity disorder, learning disability and some other issues were going on with him. And so his response was okay, here's the accommodation that I need.

You know?After he completed his three months and they were still having issues, they were

ready to dismiss him from the hospital. And so he went no, no, no. I need accommodations and here's the accommodations I need.

He said, "What I need you to do is just train everybody about the nature of my condition. Just explain to them what my condition is. They need to be a little more accepting of the fact that I have these things going on. And if they would just understand my condition and be more accepting, everything's going to be fine."

And the hospital said but what of patient safety?What about health and safety of patients?What about the fact that we have you issuing orders that are a danger to patients

and you know, you're totally ignoring the fact that we have to be concerned with that. And the guy is like no, no, you just need to understand the nature of my condition and cut me some slack here. Provide some space so that I can properly learn my craft and do better. Court said -- sided with the hospital and said absolutely not. It is not a reasonable accommodation to simply go we'll just be more understanding of your disability and we're -- you know, those patients just have to deal.

You know, if the order happens to be incorrect, well, too bad. You'll get there. So it's important for us to understand that the accommodations that the person asks for have to be reasonable within the context of the risk that's involved and reducing the risk.

And in this particular case, they had in fact a situation that was arguably a direct threat or to the health and safety of patients and the accommodation did absolutely nothing to reduce the risk that they were facing. So whatever accommodation is requested and offered has to reduce the high probability of the risk that is apparent to those involved.

So I think it's important, you know, ultimately when we talk about direct threat, to talk about the kinds of mistakes that institutions make. And we've touched on many of this. Just to sort of recap and to take any other questions that you all may have. The probably the number one mistake that institutions make in a direct threat situation is to fail to conduct the individualized assessment.

The failure to make a decision as to, you know, whether or not there is that high probability of substantial risk, to look at all of the objective and relevant facts that are in front of you, to make a judgment as to whether the risk does in fact exist.

It's a 2-step process. You have to have some evidence that makes you go "We need to make -- we need to take a closer look at this."

So it can't be like the first case with the chairperson where there was no evidence. All he knew was that the person had a medical condition. So the first step is there has to be some objective evidence that says we need to take a closer look at this.

Once you have that evidence, then that closer look requires you to assess the conduct, the -- what's the probability of the risk, how high a risk exists, and whether or not there is a way to mitigate the risk. As you look at all of the relevant information in front of you.

And that requires you know, talking to the individual, getting -- if we're -- if you're talking about a medical condition, getting a sense of the nature of the condition, the manifestations of the condition. What are the kinds of things that are triggers?

What have you to make that assessment. So that's the first mistake that institutions tend to make.

The second mistake that institutions make that we have to avoid, is that in an emergency situation, and we've talked about this, you can't make final decisions during an emergency.

If you are faced with an emergency that requires you to take action because you believe there is a danger, you believe there is a risk, what you do is you provide notice to the individual of why you're taking the action. You make the decision to remove the individual or remove the threat, whatever it is you need to do to remove the potential threat. And after you have dealt with the emergency, then you move to a determination of the final determination of what action you might take. But you don't do those things simultaneously. In an emergency situation, you don't suspend the student. You know, you remove the emergency. If the emergency, for example, the case that I use where the student was threatening suicide in the dormitory, if the problem is the issue of the dormitory and the threat is there, you remove the emergency.

Then you subsequently make a decision about the student's continuing at the institution, remaining in the dormitory, and all of those kinds of things. So that's the next piece.

The other mistake that we make is we treat individuals differently on the basis of

disability.There was a case in which a -- an institution had a leave program that individuals

could use. You could request to go out on leave if you had a physical disability. You could request to voluntarily go out on leave if you had a psychiatric condition.

What happened at this institution is if you exercised your rights to take that leave voluntarily, when you were -- when you were ready to return, if you had a physical condition that you took the leave for, you could just return.

You know?Within -- if you took two months or three months, however, long your leave was

approved for, you could just return at the end of that period.However, if you look the leave for a psychiatric condition, what the institution

required of the individuals was that they had to have their physician fill out a 5-page report. And in this 5-page report, they asked questions about whether or not the individual was a risk or a danger. They asked for diagnoses. They asked for a treatment plans. They asked for all of this information.

And what the Feds said to this institution is no, no, no. If your policy is that people can take a voluntary leave for whatever condition, you cannot treat individuals differently solely because they identify a psychiatric condition as the reason for them taking their leave.

There is no evidence for these individuals that they're a direct threat. There is no basis for you to require their physician to fill out a 5-page report. So we have to be careful of not treating individuals differently solely because we hear they have a psychiatric condition or the nature of condition involved. It is exactly like the HIV positive case. So we have to be careful of that kind of different treatment.

Other mistakes that institutions make is the failure to consider reasonable accommodations as a means of addressing the threat or the risk that we perceive.

You know, there was another case involving a student who had Asperger's, the same kind of situation where the student basically said -- and I talked about this earlier -- where the student came to the institution. The student was proactive. Student said, "I'm aware that I can fly off the handle. I'm aware that I -- you know, my reaction to social situations is sometimes off."

So here's what I need. I need you to allow me a cooling off space. You know, allow me to remove myself from the situation, return, you know, I might need to pace or run or do whatever self-talk I need to do to calm down and then I'll return.

And the institution's response to that request from the student was to make the student sign a behavioral contract. And as a part of this contract, they required the student to refrain from the behavior that he described.

Yeah. That's like -- that's like you know, the emergency situations where we remove people and we require them to come back with a doctor's note that says you're no longer ill. You no longer exhibit the behavior that we have problems with. And what the Department of Ed said to the institution is no, that's inappropriate. The student made a -- an appropriate request for accommodation. You are obligated to consider that request and determine whether you can offer the student a reasonable accommodation.

The appropriate response is not to say to the student "refrain from the behavior that we consider objectionable."

The final thing -- and we've talked about this a lot -- is that we have to make sure that we provide proper due process. This is less a problem for employees because in the employment environment, there are all these things that protect the rights of employees. You know, employees have long-term disabilities, short term disability. HR rights protected by the Family and Medical Leave Act. They have Workers' Comp. They have all these federal statutes and state regulations that protect their rights. And so it is infrequent that we have a situation where we have an employee who hasn't had proper due process afforded to them before some adverse action happens to them in the employment environment. Because everything that's in HR is set up to make sure you dot all the Is and cross all the Ts in terms of what the rights of employees are under all of these many statutes.

Usually, we don't even get to the ADA for employees until the 12th hour because you've been dealing with other statutes and regulations in terms of the rights of employees.

But on the student side, it is frequent that the rights of students are not respected with respect to due process.

That we don't provide proper notice to students on what issues we're considering when we're making a decision about their behavior. That we don't allow them to provide evidence that would refute our opinions on what's going on with them. For example in the case I gave you earlier where it was argued, oh, my God, the student is no longer taking his medication, well the evidence that the student and his parents could bring to the table in that case was that his prescription had run out and mom and dad were sending him a new prescription.

So this was evidence that would refute the notion that the student had just decided to go off his medication. So we provide students and opportunity to bring forward evidence that would refute our opinions or beliefs about their behavior. We provide them the right to appeal the ultimate decision. The next piece that students frequently suffer from is that we don't bring the necessary experts to the table.

So that if we're making a decision about a bipolar condition, if nobody on the committee understands the condition, understands the manifestations for this particular individual, we need to involve those necessary experts, which might mean that you need to talk to the treating physician. You need to talk to the person who's providing therapy to the individual. You need to bring all of that relevant information to the table prior to making a decision.

So you know, those are the common kinds of mistakes that when you look at Department of Ed rulings, DOJ, EEOC findings, it is commonly different treatment, denial of due process, failure to do the individualized assessment -- those kinds of things that create problems for colleges and universities when we're making decisions in the direct threat environment.

Any other questions or cases we want to talk about?Yes?

>> AUDIENCE: Yeah. I'm wondering when you think about the individualized assessment and let's assume we've done everything right up to a certain point and we're wanting to have a student in this -- and this is in a particular instance, but wanting to get a student -- have them provide us with information, documenting that

it's safe for them to return to campus let's say or safe for them to stay on campus, one or the other. And we want them to be evaluated by a psychiatrist or psychologist, whatever.

What are your thoughts about the cost that may accrue to the student in complying with that request on our part?

>> SALOME HEYWARD: Well, but you know, whenever we're talking about students and it's just not in, you know, a direct threat situation where we're saying okay, you need to get evaluated by a psychiatrist or a psychologist. You know, even students who may have learning disabilities and we're trying to figure out what appropriate accommodations are, you know, ultimately, those things cost 1500 to 2,000 bucks. You know, and so we're -- you know, we wrestle with the notion of okay, what if we make this requirement and the student can't meet it. It's one of those things in the law where the individual is obligated to be -- you know, the way we describe it is that the individual has a continuing obligation to be qualified.

So whenever they're qualified status their qualified status is at issue, it is their obligation if we have legitimate information in front of us that says they're not qualified, it's their obligation to satisfy that. Even if it costs $1,500 or $2,000 and that -- you know, they can't really afford it, you know, we're -- we're always balancing two equally important rights. This is why -- how I like to describe it to people.

At the same time that we want to protect the right of individuals with disabilities to be included, you know, we provide them the same opportunity to succeed or fail as we provide all of our other students, employees or beneficiaries of our program, that's a very important right.

But on the other side an equally important right is the right to protect the integrity of your programs and services.

And one does not supersede the other.And so you know, what -- how we determine reasonable is how we always are

balancing these two rights. And so the onus then is on the individual when the qualified status is in question for him or her to provide us the evidence that they are in fact qualified.

>> AUDIENCE: Thank you.>> Other kinds of things that we want to talk about?Yes, sir, very back.>> AUDIENCE: Could you talk a little bit about how to judge -- so an institution

might not agree with the medical information provided. They might not find it credible. So how do you sort of figure out when you -- when the institution wants to not just accept the information provided but wants to challenge it?

>> SALOME HEYWARD: Okay. So the person presents some medical documentation and you go I don't believe it.

Okay. .What you have to have -- here's how we sort of balance that out.What we say and what DOJ has said is we afford greater weight to the qualified

professionals in the field who have actually evaluated and assessed and treated the individual. So we start with that presumption.

We start with the presumption that the qualified professionals in the field who have actually seen the person and evaluated them, tested them, should have greater weight.

So, if we are going to object to that, we need some legitimate logical objective reason why we would say we don't believe it.

It's unacceptable to us. So, if you go back to one of the case examples I used, it's perfectly appropriate for the institution when the person had the first evaluation that said "This person is an absolute danger and needs intense therapy before they can return."

Okay, that's one extreme. Then the person comes with two months later with another evaluation that says no, they're perfectly fine. They can return to the environment. They don't need any therapy. There's no -- you know, let them back in.

What the institution said was hey, we've got two extreme opinions here. We need to know the basis for this decision.

What you based your facts on, how much did you -- how many sessions did you see this person?

We need our evaluator to talk to your evaluator. That's perfectly legitimate.So what happens is if you have some objective basis to question that evaluation,

then absolutely, you get to question it. And what the institution did in that instance was appropriate. Let our evaluator talk to -- let the two professionals talk and figure out if they're speaking the same language. Or, in the alternative, we're going to bring in a third professional to try to solve this problem for us in terms of the diagnosis and what's really going on with the individual.

But you've got to have some objective information that allows you to go "I don't believe this assessment and judgment."

There was a recent case in which -- and I'll come to your question in a second. There was a recent case in which the court rejected the opinion of medical professionals in the field because they -- one of the professionals went, well, there's no basis -- he doesn't meet any of the screening for an anxiety disorder. But I'm going to diagnose it anyway. And the court went no. You're just going to -- you acknowledged that he doesn't meet the criteria but you're going to make the diagnosis anyway?

We don't have to accept that as being legitimate and objective. Yes, ma'am.>> AUDIENCE: I was going to ask in the case at hand, it sounded like the

employer paid for an independent medical evaluation and the employee came back with someone who treated them and the employer found the two extreme positions. Is there a reason why the employer couldn't have at the outset said as a condition of your return, you'll be seen by the same independent medical evaluator to see if you made progress?

>> SALOME HEYWARD: Absolutely, the institution could have imposed that condition. They just didn't. But yeah, if it's legitimate, whatever conditions you impose have to be geared towards removing the perceived threat. And generally, the courts and the Feds will defer to the judgment of the institution as long as it's logical and it's rational. So they could have said, yeah. And one of the case examples that's exactly what happened. They said we want you to be seen in order to allow you to

come back and then we want you to be seen by the same evaluator three additional sessions to satisfy us that you are well enough to continue in the housing environment.

So it's perfectly appropriate to do that. Other comments or questions or things we want to talk about?

Yes, ma'am.>> AUDIENCE: How is -- how does the Department of Education and

Department of Justice, how do they distinguish between objective evidence and anecdotal evidence?

>> SALOME HEYWARD: How do they distinguish between anecdotal evidence and objective evidence?

We look at the facts of the particular case. What actually happened. Is it something I personally saw?

Is it in the medical record? You know, all of those things are -- you use the best evidence that's in front of you. So you know, for example in one of your earlier cases, counseling center director met with the student and the student acknowledged yes, you know, I've been talking about death. I have suicide issues. What the counseling center director did was he didn't just simply accept the roommate's coming to him and saying oh, we're concerned because he's acting strangely. And he's talking about death a lot. Okay. What he did was he met with the student. And said what's going on with you?

And the student then -- the comments that followed sort of dovetailed with what his treating physician had said, what his past medical records show. So all of that taken together supported the determination that they made in the emergency situation. As opposed to just -- and it is hard for an institution if -- you know, roommates or students in the dormitory come then and say oh, we think this -- we think this kid is nuts.

You know? His behavior is strange. He's off the wall.Well, that describes 70% of the student population and most of the faculty.(Laughter.)So where's the beef if you will. So what's the actual evidence of the strange

behavior, what's causing you pause?And then you follow up on that. You don't just accept someone's judgment that

the behavior was strange.What -- you know, what facts do we have to support it. Yes, ma'am.>> AUDIENCE: My question is how integrated do you feel disability or the

disability office should be with the overall process of direct threat on any university?Should it automatically be a consideration?or is disability services something that should be brought in once there's an

indicator that there might be a disability involved? >> SALOME HEYWARD: Well, particularly on a large institution, your Disability

Services Office cannot be all things to all people.Okay? You know what I say about that is just because it has a D in it doesn't

mean it belongs to them. So we start from the perspective of how the campus manages these situations. Who's the best folks to be -- to sort of take the leadership role?

Usually when we're talking about issues of direct threat and psychiatric cases, cases like that, for many institutions it's their counseling -- if they have a counseling center staff or director of their counseling center that's a Ph.D., that's the group that takes the lead.

They may bring in the Disability Services Office if it's a student they serve or they need guidance in terms of fashioning accommodations and things like that. But it's not automatically the job of your Disability Services Office to manage that. Other questions or comments?

We're about at that time. Yes, ma'am.>> AUDIENCE: Are you familiar with Gambini decision?Gambini versus Total Renal Care, that was a Ninth Circuit decision from a few

years ago that said the misconduct flowed from a disability can't be used to discipline an employee?

Just wondering if you know of any circumstances, any cases that flow since that decision that may be different or impact what the Feds are doing vis-a-vis that

>> SALOME HEYWARD: Well, yeah, the problem with talking about specific court decisions is that the devil is in the details.

And so now we have to talk about the specific facts related to the conduct and the -- why the court said no, it can't be the subject of a disciplinary action. Because clearly DOJ and certainly the Department of Education in terms of student behavior, you know, there are statements where they clearly say look, if the behavior that is the questionable behavior is a part of the disability, if it's inappropriate or it make the person less qualified, yes, you have to address it. Yes, you can have conditions if the behavior that's a manifestation of the disability is the objectionable behavior or the behavior that raises the risk of direct threat. And you can't minimize that or mitigate that by an accommodation.

So you know, I -- you know, so we have to look at the actual facts and say okay, why did the court reach that decision?

>> AUDIENCE: This is an employment case.>> SALOME HEYWARD: Right. Right. So I would -- even in the employment

environment, I'd be going okay, what are the specific facts? You know, what are -- you know, we have to look closely at the facts of the case to judge whether there was something unique about it that would make us go okay, that's why the court decided in this instance that we're not going to -- we're not going to allow the conduct related to the disability be the subject of a disciplinary proceeding.

In many instances, that -- the courts say that because the institution or the employer has not properly responded to the individual's needs. Related to their disability.

And so, if the institution either can't have clear-cut policies and procedures or ignores a request or things that are right in front of them that are brought to their attention, then the employer becomes solely responsible. And you -- then you don't make the individual suffer the consequences of their failure.

>> AUDIENCE: I have to say that's -- it kind of goes back to Jennifer's question. Zero tolerance policy. That's I think why that question is difficult to answer, Jennifer, because with Gambini, if you've got notice of disability, you've got something actions

leading to the threat is because of disability and if there is a failure you're to accommodate. So you can't use the --

>> SALOME HEYWARD: It's always about the facts of the particular case. I mean, that's why everything in the law is about the individualized assessment.

>> AUDIENCE: So dovetailing on all of this, going back to the case that you brought into the program today, Jim, why were we at disability accommodation assessment when I think many employers would look at what happened with Jim and say that's a terminable offense and if you've not brought forward any accommodation needs, we have no knowledge of a prior medical condition, why would anything prevent going that route?

He violated our policy with the first outburst and you will suffer the consequences?

>> SALOME HEYWARD: If in fact, Jim's behavior for the employer equaled a fireable offense, the very action of destroying the office and what not, we put him right into HR, we don't have the 3-step warning sis system or whatever, we just fire him for this, Jim at the 12th hour going oh, but I have a disability, and we talked about that, it's not going to save him because the consequences of his behavior is that any similar situated employee, disabled or not would be terminated who was guilty of that behavior. So Jim doesn't get saved. What happened if Jim was in a disciplinary situation which was the facts of the case and then he raises the disability, now we have to consider that as part of the equation of how we fashion bringing Jim back if we give him a warning or we put him out for a week or two weeks or whatever.

Because of the of the nature of his behavior. Yes, sir.>> AUDIENCE: So would you bring Jim back, what if other people are not

feeling safe because of his actions?At what part do you balance it's not a reasonable accommodation? >> SALOME HEYWARD: Well, we -- you know, we discussed this a little bit

earlier. You know, if Jim has a blowup in the workplace environment, we're going to counsel with the folks that are there and say yeah, Jim's coming back. If you feel uncomfortable, here's who you talk to. We're going to counsel with Jim and go Jim, you can expect that people might treat you a little differently based on what's gone on. You know, here's who you need to be talking to if you have some issues as well.

Now, having said that, we all are aware of situations where it is difficult to impossible to bring the person back in the environment.

Either because they don't feel comfortable or other folks because of the nature of what happens it becomes difficult to bring them back and you bring them back and then other problems arise. But your obligation as an employer is to counsel both sides. And try to make it -- try to make it a fair sort of environment for both sides and give both sides a place to go if they have concerns. Once you bring the person back into the workplace. Okay. Thank you.

(Applause) >> BREE CALLAHAN: Thank you for coming today, Amanda Paye and I are very

happy we wanted to get this together on what would be short term notice. I have to take sale only to her next event with housing folks I think we're in 107 if any housing folks are in here, going to that. Anybody have questions. Sale only is here today

and tomorrow still so Amanda and I can put you in touch with her. And unplugging emerging trends and higher education later today. Technology will be one of the main things we talk about. 3:00. In this room.