K-12 Timing of Cases: A Special Guest Blog by Jackie Gharapour Wernz

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[guest author: Jackie Gharapour Wernz]*

Summertime usually brings a well-earned break for educational administrators. But for Title IX coordinators and other Title IX team members, summer break can bring a whole new headache. Now that parties and witnesses have left campus for the summer, what do you do with that pile of Title IX cases on your desk? Perhaps some parties have even graduated or are not returning to your educational institution again. And what about that report that rolled in during the last week of school? Here are a few tips for preventing Title IX from ruining your summer.

Tip 1: Summer Break Is Not A Title IX Break (Though Limited Delays May Be OK)

The 2020 Title IX regulations do not exempt schools from processing Title IX cases over summer or other school breaks.

The rules allow (indeed require) an institution to set “reasonably prompt time frames” to conclude the grievance process in the institution’s grievance process. But it seems unlikely that OCR would find taking the whole summer off from Title IX to be “reasonably prompt,” even in the unlikely case that your educational institution’s grievance process allows it.

The 2020 rules allow for the temporary delay of the grievance process for the limited extension of time frames for a good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. But the examples of “good cause” do not include school breaks either.

So are you required to continue full speed ahead on your Title IX cases during summer break? Generally, you should keep processing cases as much as possible. However, “good cause” to delay the time frames for processing a complaint includes “the absence of a party, a party’s advisor, or a witness.” So, if your policy includes that language, you may have some breathing room if one of those individuals is not available and their presence is necessary to move the process along.

Note, however, that “Title IX coordinator” and “Title IX team member” are not on the list. So if one of your Title IX Team Members has a six-week vacation to Tahiti planned, it would make sense to invite me delegate their responsibilities to someone who can keep the process going while they are out.

There may be other bases for good cause to delay the process over the summer months. Title IX coordinators and team members should work closely with legal counsel to ensure that delays are appropriate and that the “reasonably prompt” goal is met. Any delay must be accompanied by notice to the parties, the parents/guardians of minor parties, and any party’s advisor.

Tip 2: A Respondent’s Departure May Warrant Dismissal

The one exception to Tip #1 is that if the alleged perpetrator’s (respondent’s) enrolment or employment ends, an educational institution may dismiss a Title IX formal complaint. But a school is not required to do so. OCR’s 2021 Title IX Q&A (Question 27) clarifies that a school has the discretion to dismiss in such situations. It must consider “the facts and circumstances of a case before dismissing the complaint because the respondent has left the school.”

The Title IX coordinator or their designee should decide whether to dismiss because the respondent is no longer enrolled or employed. What should they consider? The 2021 Q&A suggests considering “whether a respondent poses an ongoing risk to the [school’s] community” or “whether a determination regarding responsibility provides a benefit to the complainant even where the [school] lacks control over the respondent and would be unable to issue disciplinary sanctions, or other reasons.”

This portion of the 2021 Q&A also suggests that “Proceeding with the grievance process could potentially allow a school to determine the scope of the harassment, whether school employees knew about it but failed to respond, whether there is a pattern of harassment in particular programs or activities, whether multiple complainants experienced harassment by the same respondent, and what appropriate remedial actions are necessary.” This language has always been baffling to me, as it seems to hold schools to a “constructive notice” or “should have known” standard, which the 2020 Title IX rules rejected. But Title IX administrators should be aware of this language when deciding how to proceed when a respondent’s enrollment or employment ends at the end of the academic year.

What if the complainant’s enrollment or employment ends? The 2020 rules require that a complainant be participating in or attempting to participate in a school’s education program or activity when they file the formal complaint. The rules do not provide a method by which a school may dismiss a complaint if a complainant properly files a complaint while participating/attempting to participate and then disenrolls. The 2021 Q&A also reminds us that there can be circumstances where a complainant who has disenrolled can nonetheless be “attempting to participate.” Examples include where the complainant:

  1. has withdrawn from the school due to alleged sexual harassment and expresses a desire to re-enroll if the school responds appropriately to the allegations,
  2. has graduated but intends to apply to a new program or intends to participate in alumni programs and activities,
  3. is on a leave of absence and is still enrolled as a student or intends to re-apply after the leave of absence, or
  4. has applied for admission.

Moreover, the 2021 Q&A says that even if a complainant is not participating in or attempting to participate in an education program or activity, the Title IX coordinator or designee may still need to proceed with a complaint if there is a sufficient risk to the community. Title IX coordinators and their designees should evaluate these and other factors before deciding how to proceed if a complainant’s enrollment or employment ends before the summer break.

Tip 3: Make Use of Technology to Complete Evaluation and Investigation

How can Title IX team members keep the process moving along when parties, witnesses, and others are in different locations? Make use of technology. Remember what we learned in the darkest days of the COVID-19 pandemic? We learned that conducting interviews virtually, mainly through video conferencing, allows us to view a witness’s facial expressions and body language. Make use of this technology to finish up necessary interviews.

Of course, if a party or witness is genuinely unavailable, go back to Tip #1 and consider a delay for good cause. But just because a party or witness is not available to come up to school for an interview does not render them “unavailable.”

Tip 4: Don’t Forget Supportive Measures

It may be tempting to think that supportive measures end at the end of the academic year, but that may not always be the case. If parties are returning to your education program or activity in the fall, you may need to keep supportive measures in place for that return. Of course, modifications may be necessary as parties are in new classes and activities or based on other changes to the parties’ interactions.

The need to carry forward supportive measures may also come into play even if students are moving from one campus or program of your school to another. For example, in K-12 schools, if elementary school students move to middle school in the same district, the district would be required to continue providing supportive measures in the middle school until the Title IX process concludes (and even after!).

With summer looming, there are so many issues to think about, but they should not ruin your break. We at Thompson & Horton know how hard Title IX team members as schools, colleges, and universities work and hope that you can enjoy some downtime during the summer months. 

*Thompson & Horton

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