Entering 2020, one of the most anticipated issues for higher education institutions was the long-expected issuance of the final Title IX regulations from the Department of Education. In the last few weeks, the world of higher education looks much different. And those differences are bound to affect the work of Title IX offices at all campuses. Below are six tips legal counsel should consider when advising on sexual misconduct issues at this time.
1. Continue Investigations If Possible
Find ways to continue with sexual misconduct investigations. Even if all or most of your students have left campus, your Title IX investigators should be working to continue progress on investigations that have already begun where practicable. Most importantly, communications with complainants and respondents on the status of investigations, and expected changes to timelines are crucial.
2. Conduct Virtual Meetings
Find ways to conduct “in person” meetings or hearings using technology where practicable. Just as classes and meetings are being conducted “face to face” through technology, interviews may be able to be conducted online. Some hearings may be able to be conducted online, especially if the parties had already been provided access to evidence before leaving campus.
3. Continue to Provide Access to a Fair Process
Continue to provide parties the same process rights in terms of access to advisors, evidence and timing that was provided before the pandemic. For example, allow parties to have advisors participate via telephone or online communications. If communications at a distance do not allow a party to meaningfully participate, consider delaying the matter (while communicating clearly to all parties the reason for any delay).
4. Document All Communications
Document any inability to contact complainants, respondents or witnesses. While most students should still be available via email and cell phone, the disruption caused by some students needing to leave campus quickly may make them impossible or difficult to reach. Make sure that your investigators are documenting these efforts to reach complainants, respondents and witnesses.
5. Maintain Access to Title IX Coordinator
Maintain availability of your Title IX coordinator and reporting system. Even for campuses that have transitioned completely to on-line learning, some students probably remain on campus for a variety of reasons. Make sure that your Title IX coordinator and reporting system are still available for those students, even if staff are working primarily from home.
6. Apply Appropriate Disciplinary Measures
Consider carefully appropriate disciplinary measures. Respondents may challenge suspensions or expulsions imposed when respondents and/or complainants are no longer living and learning on campus. Make sure that discipline imposed now is reasonable and that decision makers articulate its basis under current conditions and institutional policies and values.
In light of the constantly changing situation, higher education institutions should also be prepared to wait a little longer for the final Title IX regulations. Even without any inside information from OCR, it would appear particularly tone deaf to release those regulations now while institutions are facing the many challenges of responding to the current COVID-19 pandemic.
If you have any questions about responding to Title IX issues during the COVID-19 pandemic, please contact the author of this alert.