While Illinois schools—and schools across the country—remain closed due to concerns about the spread of COVID-19, keep in mind that schools currently are not relieved from their obligations under Title IX or other civil rights laws. Because the Department of Education has not yet released any guidance regarding Title IX obligations during this time (and the Coronavirus Aid, Relief, and Economic Security Act passed by the Senate does not give Department of Education Secretary Betsy DeVos the ability to waive civil rights laws), we recommend continuing to follow your school’s applicable Title IX policies and procedures. Issues related to COVID-19 continue to rapidly evolve on both the federal and state level. Just this week, various advocacy and education groups—over 200 of them—urged federal officials to pause finalization of the proposed Title IX rules, citing concerns that releasing the new rules would only exacerbate challenges schools are already facing as they attempt to meet student needs remotely. As these issues continue to evolve, including the recent stay at home order here in Illinois, we will continue to monitor the impact of any developments closely. In the meantime, keep the following in mind for any investigations that were pending at the time of your school closure, or for any new reports that come in that may trigger your school’s obligations under Title IX.
Pending Investigations
Remember that schools are expected to conduct prompt, thorough, and equitable investigations in response to complaints of sex-based discrimination. While there is no fixed timeframe under which a school must complete a Title IX investigation, OCR is likely to evaluate whether a school made a good faith effort to conduct a fair, impartial resolution in a timely manner. Keep in mind that your school’s Title IX policy and procedures may set a fixed timeframe, typically with the ability to extend the timeline if needed.
As a reminder, in addition to any other specific measures called for in your Title IX policy and procedures, your investigation should include the following steps:
- Choose an appropriate investigator
- Intake an evaluation of the complaint
- Complete an investigation plan
- Interview relevant witnesses
- Collect and review any other relevant evidence
- Make a determination
- Complete appropriate documentation (i.e. notes, files, and reports)
- Notify relevant parties of the investigation results
To ensure that your school remains in compliance during this time, you should continue any pending or ongoing investigations in line with your school’s applicable Title IX policies and procedures to the extent practicable. Consider whether any interviews can be conducted remotely or if any information can be submitted electronically and keep both parties apprised of how any school closure and government and health department restrictions may impact the investigation. You should also be sure to keep parties informed to the extent that any timelines need to be adjusted under your policies and additional time to complete the investigation is needed.
Policies and Procedures
Continue to review and make sure that you are familiar with your school’s Title IX policies and procedures in terms of relevant timelines and processes for responding to complaints of sex-based discrimination, including any complaints that may come in during remote learning or a school closure. Continue following your school’s applicable policies and procedures as closely as possible, as there is no indication that schools’ Title IX obligations are waived during this time. However, you can (and should) consider how to effectuate your investigations in keeping with recommendations and mandates from the State and CDC regarding appropriate social distancing. During this time where social distancing is recommended, and in some places ordered, consider the following when continuing your investigations:
- Do your policies allow any steps to be done virtually, such as via phone or video conference?
- Do your policies allow for any extensions of time?
- What are you able to accomplish with staff you have on-hand versus virtually?
- Is it practicable or appropriate to enter into agreements between the parties for extensions of time or potential relaxation of certain procedures?
Remember too that the timelines and requirements for any other complaints you may have received that deal with civil rights violations outside of sex-based discrimination also are not automatically suspended due to school closures from COVID-19. For these complaints, you should continue to review and follow your uniform grievance procedure and any other applicable policies, keeping in mind the same considerations as above. The Department of Education has also addressed the issue of protecting student civil rights during this time and appropriate responses to bullying, harassment, and discrimination on the basis of race, color, national origin, and/or disability in its recent guidance.
Of course, we understand how rapidly things are evolving and that each individual case has nuanced issues, so your Franczek Title IX Team is here to answer any questions you may have while we continue navigating these uncharted waters.