As colleges and universities continue to face evolving challenges during the COVID-19 public health crisis, all Title IX obligations remain in place. Higher education institutions must continue to effectuate a “prompt and equitable resolution” of sex-based discrimination complaints by students. With many students no longer on campus and with institutions having shifted to online classrooms and other virtual platforms, there will be complications.
Here are a few points addressing Title IX obligations that continue, but certainly could be impacted by the COVID-19 pandemic:
To ensure that colleges and universities remain compliant during this rapidly evolving public health crisis, pending or ongoing investigations should continue to proceed according to the applicable Title IX procedures to the extent possible and practical. Under Title IX, schools are expected to conduct timely and thorough investigations of all sex-based discrimination. While the law does not set a specified timeline for investigations, many schools’ policies do. Those should be followed if possible and practical.
Now may also be a time to identify alternative methods. Consider whether interviews can be conducted remotely or if information can be submitted electronically. Keep parties apprised of how federal and state government restrictions may impact the investigation. Inform the interested parties if any timelines need to be adjusted or additional time is needed to complete the investigation.
Due Process and Hearings
All public colleges and universities must continue to abide by constitutional procedural due process obligations. Federal courts are split on the extent of due process that an education institution must provide to give proper notice satisfactorily and an opportunity to be heard. In the Sixth Circuit Court of Appeals, which includes Ohio, Michigan, Kentucky and Tennessee, public institutions must give accused students the opportunity to cross-examine his or her accuser at a hearing. On the other hand, the First Circuit Court of Appeals (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico) does not require a hearing with direct student-on-student cross-examination, and instead a neutral party uses an “inquisitorial” approach to conduct the questioning.
These constitutional due process requirements become more challenging with witnesses and students now forced to return to their permanent homes, which may be anywhere across the country or internationally.
Constitutional due process requirements do not apply to private institutions, but those institutions have processes that they have created and are expected to follow or take on serious risk of litigation. While the Department of Education has yet to release its long-anticipated Title IX regulations, if that occurs in the near future, private institutions will also need to comply with the more formalized process requirements that are almost certain to be formalized in those regulations.
To the extent possible and practicable, schools’ student conduct operations should continue to follow all applicable policies and legal parameters. As these processes may be impacted by government directives in the crisis response to COVID-19, schools should continue to communicate regularly with students and staff about any changes in process because of mandated online and virtual participation.
For current Title IX complaints, all involved witnesses and parties should be instructed on the correct chain of communication, with the relevant administrators identified. It is vital that all witnesses and involved parties have clear direction on communication and participation in the Title IX proceedings. These unprecedented times will surely result in unchartered situations for school administrators to address when handling Title IX complaints, so clear communication to all witnesses and involved parties will be vital.
Reiterate No-Contact Orders
No-contact orders will remain in effect. This may be challenging in a virtual environment. Administrators should continue to reiterate that all such directives to avoid contact (especially in virtual settings and online interactions) continue while students are physically away from campus. Administrators should also emphasize the importance that students immediately report any alleged violations of no-contact orders. Timely reporting is essential to allow for appropriate responsive actions.
The differing platforms to deliver education do not mean that there will be no new Title IX complaints. There could be complaints no matter where the students are located. Some could be for prior on-campus incidents and others will relate to off-campus conduct. Therefore, higher education institutions must continue to provide proper notice and instructions on how complaints may be filed, which should include instructions for filing a complaint remotely. These instructions should also include guidance on how Title IX complaints will be received and processed when submitted anonymously.
Legal issues related to COVID-19 continue to evolve rapidly, and as of the date of this article, the Department of Education has not yet released any Title IX guidance addressing the COVID-19 pandemic. For more information on how your educational institution should respond to Title IX issues in light of COVID-19, please contact Taft’s Higher Education practice group.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.