As camp professionals, there are few topics that are more sensitive than addressing self-harm among our campers. In this article, we explore how the Americans with Disabilities Act (ADA) informs our approach and how camps can navigate their legal obligations while maintaining a safe community. We begin with a brief overview of the ADA to contextualize this discussion, and then focus specifically on the question of self-harm. For a much more detailed overview of the ADA, please visit: Understanding the ADA.
A Brief Overview of the ADA
Defining Disability
Title III of the ADA prohibits camps from engaging in discrimination against campers with disabilities. Importantly, the ADA defines “disability” as a "physical or mental impairment that substantially limits one or more major life activities." If a camper doesn't have a disability based on this definition, then the ADA generally doesn't apply.
Reasonable Modifications
Once we establish that a camper does have a disability under the law, the ADA requires us to provide reasonable modifications to policies, practices, and procedures to enable the camper to participate in the program, as long as those modifications do not fundamentally alter the nature of the camp experience or impose an undue burden on the organization.
Direct Threat
It's important for camps to keep in mind that even if they can't provide a particular accommodation, they cannot deny a camper with a disability the right to participate in the camp's regular program. The important exception is that camps are allowed to exclude a camper from their program if the camper would pose a "direct threat" to others.
Notably, your staff are governed by a different title of the ADA. Based on that title, they can also be excluded from camp if they pose a direct threat to themselves or others, but this is not the case as to campers.
Camp Policies
Another important ADA requirement is that camps cannot impose eligibility criteria that screen out individuals with disabilities, unless such criteria are essential for providing the camp's services. To use a couple examples drawn from the Department of Justice ADA Technical Assistance Manual: A camp is allowed to have a policy that any camper who attends a rafting expedition must be a strong swimmer. This is a general safety policy that applies equally to all campers, including those without disabilities. By contrast, a camp is not allowed to have a blanket exclusion saying that campers who use wheelchairs cannot attend the same trip, because plenty of campers who use wheelchairs are excellent swimmers.
Applying ADA Principles to Self-Harm
Let's now consider how these ADA principles apply to campers who are at risk of self-harm. I should begin by observing that there's little formal guidance on the topic of self-harm and the ADA, and I've seen no guidance specifically in the context of camp.
While doing research for this post, I did find an excellent article written by Paul Lannon for the National Association of College and University Attorneys called Direct Threat and Caring for Students at Risk for Self-Harm: Where We Stand Now. While camps and universities are typically subject to different titles of the ADA, many of the relevant ADA principles apply similarly to both. So, insights from higher education are certainly instructive for camps. In this case, the source of our guidance comes from the Department of Education.
Department of Education's Office of Civil Rights
The Department of Education has an Office of Civil Rights, which enforces university ADA compliance and investigates student complaints alleging discrimination by their institutions. The Office of Civil Rights has issued a number of "resolution letters" following student complaints involving issues of self-harm, which Paul Lannon thoroughly analyzes in his article.
The resolution letters are the closest thing I have found to formal government guidance on the topic of self-harm under the ADA. While the letters aren't binding precedent, and the Department of Education doesn't regulate most camps, the resolution letters are nevertheless insightful when we think about how camps should approach questions of self-harm among campers.
Organizational Policies
As already discussed, camps aren’t allowed to implement policies that specifically target people with disabilities, but camps are allowed to have general safety policies that apply to everyone. When it comes to self-harm, what types of policies should camps have in place? To answer this question, we can consider a couple university policies that were upheld by the Department of Education following an ADA analysis:
SUNY Purchase Policy: “[The university will remove from the community] any student whose behavior renders them unable to effectively function in the . . . community without harming themselves, others, or disrupting the . . . . community and who refuse and/or cannot be helped by emotional and/or medical treatment."
The Department of Education found that this policy did not discriminate against students with disabilities because the policy applied equally to every other student at the university. In other words, this is a general safety policy, rather than a policy targeting students with disabilities.
Princeton Policy: The university may “summarily bar” a student “in circumstances seriously affecting the health or well-being of a student, or where physical safety is seriously threatened.” The policy gave examples of behaviors that would create a serious health or safety threat, including "anorexia," "serious substance abuse," and "life-threatening behavior.”
Once again, the Department of Education found that this policy concerning “health, well-being and safety” was “legitimate and non-discriminatory.” This is another example of a safety policy that applies to all students, and not just those with disabilities.
Importantly, the Department of Education found that these policies did not discriminate against students with disabilities because they applied equally to students without disabilities who exhibited the same behaviors. Any policy that singles out campers with disabilities is likely to be found discriminatory and in violation of the ADA. However, when a policy applies to every individual equally, regardless of whether the person has a disability, it is more likely to be upheld.
Reasonable Modifications
One key takeaway from the Department of Justice resolution letters is that organizational policies must be generally applicable to individuals with or without disabilities. Another key takeaway is that, when an individual with a disability cannot meet the requirements of a general safety policy, then the organization must conduct an individualized assessment to determine if there’s a modification that would enable the individual to safely stay in the community.
In other words, when a camper’s behavior suggests that they cannot comply with general camp safety policies, the camp must conduct an individualized assessment to explore potential modifications to policies, practices, or procedures that would enable the camper to be successful in camp. This process may involve consulting with parents, medical providers, and other stakeholders to assess the camper's unique circumstances and identify appropriate modifications that would not pose an undue burden, fundamentally alter the program, or allow a direct threat to others. Only following that individualized process, a camp can remove a camper from the community if there is no modification that would safely address their needs.
Welcoming Campers Back
Another key takeaway from the Department of Education resolution letters is that organizations have a continuing obligation to accommodate individuals with disabilities who want to return after they’ve been removed from the community. Thus, even after a camper is removed, the camp’s obligation to provide modifications doesn’t end. If the camper asks to return, then the camp must reassess the camper on an individualized basis and explore whether reasonable modifications would allow their safe reintegration.
Application Questions Regarding Self-Harm
Many camps wonder if they can ask about self-harm in their registration materials. There are two important principles that guide the answer: First, medical questions that may elicit disability-related information must aim to facilitate accommodations rather than screen out campers with disabilities. Second, camps should only request the minimum amount of medical information that is necessary to ensure safety.
The Department of Justice provides the following guidance on this topic by way of example: "A private summer camp requires parents to fill out a questionnaire and to submit medical documentation regarding their children's ability to participate in various camp activities. The questionnaire is acceptable if the summer camp can demonstrate that each piece of information requested is needed to ensure safe participation in camp activities. The camp, however, may not use this information to screen out children with disabilities from admittance to the camp."
Similarly, camps can argue that understanding a camper’s risk of self-harm is vital for safety. On this basis, the question can likely be asked, as long as the information provided in response is not used to screen out kids with disabilities -- the camp cannot simply exclude every camper who answers "yes" without conducting an individualized assessment.
Conclusion
The ADA requires camps to provide campers with disabilities reasonable modifications based on an individualized assessment of each camper, unless those modifications fundamentally alter the program or create an undue burden. Camp policies must avoid screening out individuals with disabilities while applying safety standards equally to all campers.
While there is minimal formal guidance on the topic of self-harm, the best we can do is apply general ADA principles while also looking to analogous institutions for instruction. Based on that, here are the key takeaways from general ADA principles and a few Department of Education resolution letters with universities:
Camp policies regarding self-harm may be informed by the upheld university policies quoted above, with a focus on ensuring that the policies are intended to foster health and safety and are generally applicable to all campers (rather than specifically targeted at campers with disabilities).
If a camper with a disability cannot comply with a camp safety policy regarding self-harm, then the camp must engage in an individualized assessment to determine if there is a reasonable modification that would enable the camper to safely participate in the camp community. The concept of an individualized assessment is important -- camps should not have universal exclusions or blanket policies that screen out campers with disabilities.
Any medical questions on the camp application regarding self-harm must be essential to ensure the safety of campers and cannot be used to screen out campers with disabilities. The camp cannot simply exclude every camper who answers "yes" without conducting an individualized assessment.
Finally, even after a camper has been removed from the camp community following an individualized process, they are subject to ADA protections if they ask to return. The camp has an obligation to conduct an individualized assessment of the camper's ability to safely return.
While addressing self-harm among campers is always challenging, I hope that this guidance can provide some structure to each camp's approach.
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Postscript: A Technical Note Regarding Direct Threat
As I mentioned already, the ADA allows camps to exclude campers with disabilities if they pose a direct threat to others that cannot be mitigated with reasonable modifications. Camps can also exclude staff members with disabilities who pose a direct threat to themselves or others. However, posing a direct threat to oneself is not, as a technical ADA matter, an allowable basis to exclude a camper with a disability.
Nevertheless, what we see in the Department of Education resolution letters is that this very outcome is allowed anyway when it's based on general safety policies, which apply equally to students with and without disabilities, coupled with a separation decision that's preceded by an individualized assessment of the student to see if their needs can be addressed with reasonable modifications.
Paul Lannon discusses this topic in more detail in the article linked above. His discussion is in reference to Title II of the ADA, but the same principles apply to Title III. As Mr. Lannon observes, it would be very helpful to receive some formal guidance on this topic, but until such guidance comes, we are left with a slightly contradictory framework within which to make these decisions.