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How Will The Coronavirus Pandemic Affect Title IX Investigations?

The ongoing Coronavirus [COVID-19] pandemic is affecting all aspects of college life. Many colleges have sent students home and have moved to online learning. This change has led to confusion about Title IX cases and how they are being handled during this crisis. Below are answers to common questions about how the Coronavirus pandemic will affect your Title IX case.

How will the timing of my Title IX case be impacted by the coronavirus?

The timeline of your Title IX case, whether you are a complainant or a respondent, will be dictated by your specific college’s protocol in response to the coronavirus outbreak. Most colleges have instituted remote online classes. You should expect some delay while colleges transition during this time. Universities and colleges, however, must continue to meet their obligation to provide a fair and equitable process, which includes a timely investigation and hearing.

Many colleges are using online platforms such as Skype and Zoom to continue the process and conduct interviews and hearings. As a complainant or respondent, you are entitled to, and should, request any extensions that you need to be prepared to effectively participate in the process. to be equitable, if your college grants an extension for one party, they must grant an extension for the other party.

If I have a hearing scheduled, will it be postponed because of the coronavirus outbreak?

Given the extraordinary health concerns across our nation, it is likely that if you had a hearing scheduled, it has or will be postponed. This postponement may be due to the College’s limited resources and/or the adjustments to policies that need to be made to accommodate for the coronavirus and consequent online processes. Many colleges are modifying their processes to be conducted remotely and through video conferencing.

While you may want to have the process competed as soon as possible, keep in mind that online procedures may create a situation that could be disadvantageous for you. For example, if your credibility is an issue, which is typical in a “he said, she said” situation where there are no witnesses to the actual misconduct, many times, in person meetings may be a much better way for the school to assess your credibility. In addition, parties and witnesses may have technical difficulties with remote processes or be unable to effectively participate due to personal, family or health issues. While an in-person hearing may be more effective and your preferred process, if the college allows for or requires an in-person hearing, an extension should be requested and will likely be granted.

If my hearing is moved to a video conferencing platform because my school has closed, will I be at a disadvantage and negatively affect my case?

While video conferencing is an option that will allow for the ongoing adjudication of Title IX matters, both the complainant and the respondent may have claims of bias if there is no option for an in-person hearing. Meeting with someone face to face allows for a personal connection and better reading of nonverbal cues that can be lost on an online platform. In most cases this will be very important for both complainants and respondents when credibility is an issue, which is typical in a “he said, she said” situation where there are no witnesses to the actual misconduct.

Because Title IX requires that all students involved in the process be treated fairly, if one party is permitted to meet with an investigator in person, then the other party is entitled to the same opportunity and should advocate for equal treatment despite that health crisis, even if it results in delay in the process. On the other hand, no party should be permitted to use the health crisis as an excuse for the proceedings to be delayed in a way that prevents complete adjudication. For example, in situations where a student who has been accused is scheduled to graduate, it may be required that the college delay in granting a diploma until the process has been completed, in order to protect the rights of a complainant.

What recourse do I have if my school refuses to postpone my in-person hearing date and forces me to proceed over video conferencing?

During this unprecedented time of national emergency, many schools are using remote online platforms to conduct interviews, investigations, and hearings. Online hearings may negatively affect a person’s ability to effectively present their side. For example, if your credibility is an issue, which is typical in a “he said, she said” situation where there are no witnesses to the actual misconduct, many times, in person meetings may be a much better way for the school to assess your credibility.

If your school refuses to grant a request for an extension of time so the hearing may be conducted in person rather than through video conferencing, you may be obligated to move forward with the process. You will, however, retain your right to file an appeal based on this error at the school or file a complaint with the Office of Civil Rights through the U.S. Department of Education or in court if that decision demonstrated bias in any way that affected the outcome. For example, if one party was permitted an in-person interview with an investigator but the other party is denied that opportunity now because of the coronavirus outbreak, that may qualify as an inequitable decision that resulted in bias against you.

My school has closed so I am attending class remotely, but I have a Title IX complaint I want to file. Can I still file a complaint?

Yes. The Title IX process for making a complaint should not be delayed. Title IX covers any misconduct that occurred on a college campus or off a college campus but affects a student’s education is within a college’s jurisdiction. This applies equally to colleges operating remotely with online classes since the pandemic. If the conduct at issue occurred before remote classes were instituted, a complaint can be filed against any student, faculty, or staff of the school as long as they are still a student or still work for the school. This is true even if the conduct occurs during remote classes, whether it is harassment or sexual misconduct that occurs in person or online. Interim measures should be instituted immediately if appropriate such as switching online classes. If for some reason your college tells you that the office is closed or that the service is not available to you, then you should make sure that you are granted any extension necessary to protect your complaint and immediately contact a lawyer to advocate for your rights under Title IX.

How can I access the on-campus resources that are available to me through Title IX, such as counseling, while the campus is shut down?

During this time when your college may be closed for classes and on-campus residential living, the institution is still required to provide resources for any and all students involved in a Title IX matter including complainants and respondents. In an emergency involving misconduct by a fellow student or staff, you should contact the on-campus security office to advise them of your concern, in addition to local police if necessary. Both entities remain required to respond to any matter over which their office exercises jurisdiction. In almost all cases, colleges continue to offer services such as personal counseling though it may be that these services are restricted to telephonic or on-line video conferencing, or something similar.

If the school does not offer services, they should connect you to a service that does. Your school’s Office of Disability should also be available to assist in connection with your Title IX complaint or response and should be able to find information on your college’s website for how to access them. If for some reason your college tells you that the office is closed or that the service is not available to you, then you should make sure that you are granted any extension necessary to protect your complaint or response and immediately contact a lawyer to advocate for your rights under Title IX.

Can my college investigate a complaint made against me for sexual misconduct that is alleged to have occurred while my campus was closed due to coronavirus?

If the activity for which you are being investigated involves a fellow student or college employee, and the activity occurred within any college sponsored activity, then the college is required to investigate the complaint. A college-sponsored activity can be widely defined to include many situations such as on-line classes, virtual athletic coaching, fraternity or sorority meetings, personal communications with another student through email or other social platforms, the sharing of photos, on-line social gatherings related to school, and more. A student or employee’s activities continue to be governed by the college’s sexual misconduct policy to address all gender-based discrimination which applies even though the college may be generally shut down due to coronavirus concerns.

Does Title IX apply to sexual misconduct that might happen online?

Sexual harassment does not have to occur in a face-to-face confrontation between two people. Harassing behavior can occur over a telephone, in writing and/or over the internet and through social media. Online harassment can include materials received by a victim and materials posted about a victim. Other types of activity that can occur online can include but are not limited to stalking, sexual exploitation, intimate partner violence, cyberbullying, threatening, and online sharing of intimate images.

What recourse do I have if my school refuses to postpone my in-person hearing date and forces me to proceed over video conferencing?

During this unprecedented time of national emergency, many schools are using remote online platforms to conduct interviews, investigations, and hearings. Online hearings may negatively affect a person’s ability to effectively present their side. For example, if your credibility is an issue, which is typical in a “he said, she said” situation where there are no witnesses to the actual misconduct, many times, in person meetings may be a much better way for the school to assess your credibility.

If your school refuses to grant a request for an extension of time so the hearing may be conducted in person rather than through video conferencing, you may be obligated to move forward with the process. You will, however, retain your right to file an appeal based on this error at the school or file a complaint with the Office of Civil Rights through the U.S. Department of Education or in court if that decision demonstrated bias in any way that affected the outcome. For example, if one party was permitted an in-person interview with an investigator but the other party is denied that opportunity now because of the coronavirus outbreak, that may qualify as an inequitable decision that resulted in bias against you.

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Duffy Law’s full staff is working remotely and we’re fully operational during this health crisis. Colleges are still moving forward with their Title IX and disciplinary actions, and many state and federal criminal proceedings are ongoing. We’re here for you 24/7.

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