[guest author: Jackie Gharapour Wernz]*
Summer usually brings a well-deserved break for education administrators. But for Title IX coordinators and other Title IX team members, summer vacation can bring a whole new headache. Now that the parties and witnesses have left campus for the summer, what do you do with that pile of Title IX cases on your desk? Maybe some parts have even graduated or no longer return to your educational institution. And what about that report that came in the last week of school? Here are some tips to prevent Title IX from ruining your summer.
Tip 1: Summer vacation is not a break from Title IX (although limited delays may be fine)
The 2020 Title IX regulations do not exempt schools from processing Title IX cases during the summer or other school holidays.
The rules allow (in effect require) an institution to set “reasonably prompt deadlines” for concluding the grievance process in the institution’s grievance process. But it seems unlikely that the OCR will find the all-summer removal of Title IX to be “reasonably expeditious,” even in the unlikely event that your educational institution’s grievance process permits it.
The 2020 rules allow for the temporary postponement of the grievance process for limited extension of time for good cause with written notification to the complainant and respondent of the delay or extension and the reasons for the action. But the examples of “good cause” also do not include school holidays.
So, are you obligated to continue at full speed on your Title IX business during the summer holidays? As a general rule, you should continue to process cases as much as possible. However, “just cause” for delaying complaint processing times includes “the absence of a party, a party’s counsel or a witness”. So if your policy includes this language, you may have some leeway if one of these people is not available and their presence is needed to move the process forward.
Note, however, that “Title IX Coordinator” and “Title IX Team Member” are not listed. So if one of your Title IX team members has planned a six-week vacation in Tahiti, it would make sense to
invite me delegate their responsibilities to someone who can continue the process in their absence.
There may be other valid reasons to delay the process during the summer months. Title IX coordinators and team members should work closely with legal counsel to ensure timelines are appropriate and the “reasonably expeditious” goal is achieved. Any delay must be accompanied by notice to the parties, the parents/guardians of the minor parties and the counselor for any party.
Tip 2: The departure of a respondent may justify his dismissal
The only exception to advice #1 is that if the registration or employment of the alleged abuser (respondent) terminates, an educational institution may reject a formal Title IX claim. But a school is not obliged to do so. The OCR 2021 Title IX Questions and Answers (Question 27) clarifies that a school at the discretion dismiss in such situations. He must consider “the facts and circumstances of a case before dismissing the complaint because the respondent left school”.
The Title IX Coordinator or designate must decide whether to terminate because the Respondent is no longer registered or employed. What should they consider? The 2021 Q&A suggests determining “whether a respondent presents an ongoing risk to the [school’s] community” or “whether a determination of liability provides a benefit to the plaintiff even though the [school] does not have control over the Respondent and would not be able to impose disciplinary sanctions or other reasons. »
This part of the 2021 Q&A also suggests that “continuing the grievance process could potentially allow a school to determine the extent of the harassment, if school employees knew about it but did not respond. , whether there is a pattern of harassment in particular programs or activities, whether multiple complainants have been harassed by the same respondent, and what appropriate corrective action is needed. This language has always puzzled me, because it seems to require schools to meet a “constructive advice” 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 terminates at the end of the academic year.
What if the complainant’s registration or employment ends? The 2020 rules require a complainant to participate or attempt 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 can dismiss a complaint if a complainant properly files a complaint while participating/attempting to participate and then opts out. The 2021 Q&A also reminds us that there may be circumstances in which a Complainant who has opted out may nevertheless “attempt to participate”. Examples include where the complainant:
- has withdrawn from the school due to allegations of sexual harassment and expresses a desire to re-enroll if the school responds appropriately to the allegations,
- graduated but intends to apply to a new program or intends to participate in alumni programs and activities,
- is on a leave of absence and is still enrolled as a student or intends to reapply after the leave of absence, or
- has applied for admission.
Additionally, the 2021 Q&A indicates that even if a complainant does not participate or attempt to participate in an education program or activity, the Title IX coordinator or designate may still be required to file a complaint. if there is 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 terminates before summer vacation.
Tip 3: Use technology to conduct the assessment and survey
How can Title IX team members move the process forward when parties, witnesses, and others are in different locations? Use technology. Remember what we learned in the darkest days of the COVID-19 pandemic? We have learned that conducting virtual interviews, primarily via video conferencing, allows us to visualize a witness’s facial expressions and body language. Use this technology to complete necessary interviews.
Of course, if a party or witness is genuinely unavailable, go back to tip #1 and consider a delay for a good cause. But just because a party or witness is unavailable to come to the school for an interview does not mean they are “unavailable”.
Tip 4: Don’t Forget Support Measures
It may be tempting to think that support measures stop at the end of the school year, but this is not always the case. If the holidays resume your education program or activity in the fall, you may need to keep supports in place for this return. Of course, changes may be needed as groups are in new classes and activities or based on other changes in group interactions.
The need to defer supports may also come into play even if students move from one campus or program at your school to another. For example, in K-12 schools, if elementary students transfer to middle school in the same district, the district would be required to continue providing middle school supports until the title process is complete. IX (and even after!).
As summer approaches, there are so many issues to think about, but they shouldn’t ruin your vacation. At Thompson & Horton, we know how hard Title IX team members work in schools, colleges and universities and hope you can enjoy some down time during the summer months.
*Thompson & Horton