OCR Q&A Addresses Title IX, K-12 Schools, and COVID-19

Franczek P.C.

Franczek P.C.

On September 28, 2020, the U.S. Department of Education’s Office for Civil Rights released new technical assistance for elementary and secondary schools concerning COVID-19. The document, Questions and Answers for K-12 Public Schools in the Current COVID-19 Environment, provides OCR’s perspective on schools’ obligations under civil rights laws as schools continue to decide how to provide educational services during the pandemic. Notably for our purposes, OCR addresses how schools should handle Title IX complaints during the COVID-19 crisis. Notably, the Q&A indicates that OCR will defer to educational institutions as to whether there is a good reason to delay Title IX processes because of COVID-19. Such delays should only be temporary and should balance the interests of promptness, fairness to the parties, and accuracy of adjudications.

Concerning Title IX, the Q&A explains the following:

  • Use the Right Procedure. OCR will enforce the new Title IX Rule prospectively. That means that the new Title IX rules do not apply to schools’ responses to sexual harassment that allegedly occurred before August 14, 2020. This does not mean that you should ignore conduct reported now but allegedly occurring before August 14. Those complaints should be processed using OCR rules and guidance in place at the time of the alleged incident.
  • Technology is Your Friend. The Q&A recommends that schools use technology to avoid COVID-19 delays, including conducting interviews, hearings, and other activities remotely. The Q&A warns that schools should “carefully consider confidentiality and privacy implications,” including under FERPA, and refers schools to its “FERPA and Virtual Learning Related Resources” document list and related materials from the Department’s Student Privacy Policy Office (SPPO), available at https://studentprivacy.ed.gov.
  • No Blanket Hold. Schools cannot adopt a blanket policy putting all investigations or proceedings on hold until after normal operations resume. Nor can schools refuse to accept and respond to new complaints.

Schools should be prepared to explain and document the basis for an extension based on COVID-19, keeping these factors in account.

  • Good-Faith Effort. Instead, schools should make a “good-faith effort”—and document steps taken to respond—to reports of sexual harassment using the new rules that went into effect on August 14, 2020.
  • Temporary Delay. In some circumstances, COVID-19 may justify a school temporarily delaying Title IX timeframes. The Q&A refers explicitly to “operational challenges,” including suspension of “in-person instruction” as a potential justification.
  • Deference to Schools. In the Q&A, OCR says the “Department trusts recipients to make sound determinations regarding the length of a brief delay.” It believes “recipients are in the best position to make these decisions as they have a deeper understanding of how to balance the interests of promptness, fairness to the parties, and accuracy of adjudications in each case within their school communities.” Schools should be prepared to explain and document the basis for an extension based on COVID-19, keeping these factors in account.
  • Written Notice. The school must promptly provide the parties written of any COVID-19 related delays anticipated or that occur in an individual case, including the reasons for the delay and the estimated length of the delay.
  • Remember Your Manners. Even if not required, OCR also recommends that schools “endeavor to notify” the parties of the status of pending investigations regularly, including schedules relating to interviews, meetings, and hearings, case outcomes, and appeal opportunities.
  • Notify the Community. The Q&A recognizes that schools may need to change policies or procedures as a result of COVID-19. For example, if the school changes contact information for its Title IX Coordinator or creates a new electronic reporting mechanism, policies and procedures should be updated to reflect the changes. Schools should also notify their communities of such modifications, “including by prominently displaying current, updated information on the school’s website.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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