Amongst the many issues amplified by the plight of a global pandemic, Covid-19 has brought with it questions and concerns regarding the investigation of incidents in violation of Title IX. Title IX refers to federal law that prohibits sex-based discrimination in schools and grants protections for students from harassment and sex-based violence.
When the pandemic initially occurred, universities and the different parties involved in a Title IX investigation were left unsure of how investigations would proceed, and whether significant delays would occur in the process.
Most universities have transformed the investigatory process in their Title IX offices by allowing the entire process from reporting a claim, to hearings and investigations to proceed via virtual communication. Many colleges and universities have also begun virtual support services. Pausing Title IX investigations should not be considered a preferred solution during the pandemic, as some students in institutions have reported feeling abandoned by the process and left without a means of recovering from the harm that they suffered.
Some attorneys representing students being accused of a Title IX violation have raised the issue that moving forward with purely virtual hearings may place the accused at a disadvantage, because of factors like the inability for investigators conducting the hearing virtually to accurately see facial expressions and nonverbal cues, which are typically utilized in accessing the guilt of accused students.
In some cases, accused students have argued in court to delay proceedings over the process being tarnished or corrupted by the use of technology. Notably there have been two instances during the pandemic where federal courts declined to intervene on behalf of accused students and restrain or stop a proceeding from continuing via virtual communications. In both Doe v. Oberlin College and Doe v. Transylvania University, courts declined to stop universities from continuing Title IX investigations based on the argument that all parties could not physically attend the proceeding.  The argument that the hearing process was being corrupted by virtue of the fact that the parties could not physically gather in the same room was not found to be credible because the virtual hearing process was a live hearing where parties could still question and cross examine witnesses. The process was also found to be secure as the footage of the hearing was recorded and maintained in a secure manner that would keep the footage from being improperly distributed to outside parties.
An additional issue that has arisen concerning the adjudication of Title IX investigations during the pandemic has been the implementation of new rules concerning the process. The current Secretary of Education recently introduced new rules regarding the investigation procedure and the process that is to be afforded to all parties. The mandatory implementation of the new rules by August 20th of this year also created additional challenges. The new rules include provisions for live hearings including the cross-examination of witnesses by representatives of the accused, and an increased standard of evidence needed to sustain a finding of sexual misconduct.
Suggestions for Colleges and Universities
Despite the difficulties that Universities may have with implementing the changes in the law and the overall continuation of investigations by their respective Title IX office, institutions of higher learning should strive to ensure that the process can continue to occur despite the difficulty of the pandemic. Official guidelines published by the United States Department of Education Office for Civil Rights specifically state that schools are not permitted to deliberately delay proceedings by instating a blanket policy of pausing all investigations during this Covid-19 era.
Universities are still required to make a good faith effort to respond effectively to reports of discriminatory harassment and to conduct fair and impartial investigations of student and employee complaints in a reasonably timely manner, while also taking into the consideration the health and safety of students and staff. Institutions of higher learning have been advised to use technology to conduct the various activities associated with an investigation via virtual communication while still conducting the investigation in a timely manner and in compliance with due process protections. Institutions should take the confidentiality and privacy issues associated with virtual communication into account when using virtual communication platforms. Institutions are required to notify students and staff of changes in the means of communication with the Title IX coordinator and make provisions for the virtual reporting of harassment claims.
Schools should provide the avenues for the entire process to flow safely and efficiently via virtual communication platforms and ensure that all parties have access to the virtual platforms to make certain that everyone can properly hear and communicate with one another. It is important to note that in instances where parties do not wish to make visual contact in any way, parties are permitted to request different rooms for virtual cross-examination so as to not come into any contact with one another. This ensures that victims are not further traumatized by the events of a hearing while also ensuring that the proceeding can still take place with all involved parties. Guaranteeing the safety and integrity of the virtual conference by making sure the virtual feed is secure from outside interference is also key. As courts have already determined that video conferencing with full access by both parties already amounts to affording due process to both parties, schools should not hesitate to fully implement virtual hearings and investigations and allow for virtual reporting of any purported violations of Title IX law.
If you, or your institution, have any questions concerning Title IX Investigations during Covid-19, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at firstname.lastname@example.org.
Thank you to Joel Thomas, JD for his assistance with this post.
 OCR Technical Assistance Document: Questions and Answers for Postsecondary Institutions Regarding the Covid-19 National Emergency