The new Title IX regulations addressing sexual harassment in elementary and secondary schools went into effect August 14, 2020. These regulations prescribe the exact way that schools must now address sexual harassment of which their employees are aware and how they must conduct investigations into formal complaints of sexual harassment. Schools across the country are currently operating under a variety of methods ranging from fulltime in-school models to full remote learning. Each of these models provides challenges to implementing the new regulations from concerns about investigation timelines when some or all of the students are learning remotely to how to provide supportive measures such as separating students while still maintaining cohorts for safety purposes. OCR provided additional guidance this week on implementing the new regulations during the COVID-19 crisis.
OCR makes it clear that it is expected that schools will accept and process sexual harassment complaints no matter what model of learning is being used. Districts can neither adopt blanket policies putting all investigations on hold until schools resume normal operations nor adopt a policy that refuses to accept new complaints. Rather, schools must be able to demonstrate good faith efforts to respond to reports of sexual harassment while taking into consideration health, safety and wellbeing of students and staff.
As to whether COVID-19 is a valid reason for delays in processing sexual harassment complaints, OCR noted that “in some circumstances” COVID-19 may qualify as “good cause” for a delay in the normal complaint processing timelines. As with any other situation, the reason for any delay should be documented and the school should promptly advise all parties of any COVID-19 related delays. OCR makes clear that where in-person interviews or other proceedings are not possible due to COVID-19, schools can and should use technology to conduct the actions remotely while maintaining normal confidentiality.
Finally, to the extent that COVID-19 forces a temporary change in the grievance process, this change should be disseminated to students and staff. For example, if your Title IX Coordinator is working remotely and thus cannot take in-person complaints, the school’s website and other information portals should be updated to reflect how a complaint can be filed.
Districts that have not yet updated their sexual harassment policies and procedures to reflect the requirements of the new Title IX regulations must do so as soon as possible. Additionally, the regulations require training of all Title IX Coordinators, Investigators and Decision Makers as well as any employee engaged in any informal resolution process. As the District is considered to have knowledge of sexual harassment if any school employee is determined to have knowledge of it regardless of whether the employee reported it to administration, school districts also should train all employees in recognizing and reporting sexual harassment.
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