With guest co-author Erin Walsh
Last week, the U.S. Department of Education issued a Questions and Answers for Postsecondary Institutions Regarding the COVID-19 National Emergency document reminding colleges and universities that responsibilities to accommodate students with disabilities and process Title IX sexual misconduct complaints continue during the coronavirus disease 2019 public health crisis. Although the FAQ is aimed at postsecondary schools, the discussion is equally applicable to K-12 schools. The gist of the FAQ is that, although some disability accommodations may be more likely to be unduly burdensome or a fundamental alteration of a school’s programs or activities because of COVID-19, educational institutions must nonetheless take all steps, “to the maximum extent possible,” to allow students with disabilities to participate in and receive the benefits of or services offered by their schools. With respect to Title IX, the FAQ is a reminder that although delays in the processing of Title IX complaints may be justified by the public health crisis, hearings and investigations should not be delayed simply because in-person interviews or hearings are “cumbersome or not feasible.” Nor should blanket policies putting all investigations or disciplinary proceedings on hold be used. Institutions should still accept harassment complaints even if they are only offering distance learning and should notify community members if there have been changes to the way complaints can be submitted or are processed. The FAQ also reminded schools that no-contact and no-communication agreeme3nts or orders between complainants and respondents should continue to be enforced, although some may require modification because of changed circumstances due to COVID-19.
The guidance includes some suggestions for how colleges and universities can fulfill their obligations to students with disabilities and under Title IX in these challenging times. With respect to academic adjustments for students with disabilities, the guidance suggests the following, all of which are equally applicable to K-12 schools:
- Continue to provide students with disabilities academic adjustments, auxiliary aids and services, and reasonable modifications in policies, practices, and procedures, provided that such services would not impose an undue burden or cause a fundamental alteration to the service, program, or activity.
- Do not decline to provide distance instruction out of a fear that your institution must first address all matters pertaining to accommodations for students with disabilities. Instead, take “reasonable steps” to address the needs of students with disabilities considering the health, safety, and well-being of all their students and staff when determining such reasonable steps.
- Think creatively to provide alternative methods of accommodation if services are not able to be provided as they would be in a brick-and-mortar situation. By way of example, the guidance explains that institutions may use captioning rather than sign language interpreters to fulfill their legal obligations to students who are deaf and hard of hearing under Title II and Section 504 if needed based on the exigencies of the national emergency. Such decisions must still be made on a case-by-case basis and based on an interactive process, and primary consideration must still be given to the requests of the individual with a disability.
- If it is not possible to provide a student with a disability a particular effective academic adjustment during remote learning, take other steps that would ensure that, to the maximum extent possible, the individual with a disability can participate in and receive the benefits or services provided by the institution’s education program or activity.
With respect to Title IX, recommendations in the guidance include:
- Continue to make a good-faith effort (and document steps taken) to respond promptly and effectively to reports of discriminatory harassment, and to conduct fair, impartial investigations of student and employee complaints of such harassment in a reasonably timely manner, even if instruction has been suspended or only distance learning is offered.
- Use technology, as appropriate, to conduct these activities remotely, while carefully considering confidentiality and privacy implications of electronic communications and virtual conduct of investigations and adjudications, including obligations under the Family Educational Rights and Privacy Act (FERPA).
- Do not delay investigations or hearings solely because in-person interviews or hearings are “cumbersome or not feasible” or institute a blanket policy putting all investigations or disciplinary proceedings on hold until campuses resume normal operations; however, modifications to timelines can be made on a case-by-case basis considering impacts of COVID-19 on the institution, parties, and witnesses.
- Make a particular effort during these times to keep in touch with parties regarding the schedule for investigations and hearings, including any delays.
- Continue to offer academic adjustments and supports to students who report harassment to help students restore or preserve equal access to educational opportunities, protect the safety of all parties and the institution’s educational environment, and prevent discriminatory harassment.
- If necessary, modify Title IX policies and procedures for resolving complaints, such as how complaints can be submitted, the timetable of an investigation or adjudication, and the use of virtual interviews. Ensure that students and employees are promptly notified of any changes and that the procedures are timely, equitable, and consistent with due process protections.
- Continue to enforce no-contact and no-communication agreements and orders as appropriate to ensure equal educational access for complainants and respondents and to prevent discriminatory harassment, with any modifications necessary to address the changes to the current learning environment.
For more questions on this guidance or your college, university, or school’s compliance with civil rights laws during the COVID-19 public health crisis, contact the authors of this post or any other Franczek attorney.