10 Tips for Title IX Coordinators in the Era of COVID-19

Law firm Husch Blackwell provides tips for continuing Title IX investigations while colleges and universities are largely shut down due to coronavirus.

10 Tips for Title IX Coordinators in the Era of COVID-19

For educational institutions, Title IX obligations continue despite the COVID-19 pandemic. As many schools have implemented stay-at-home orders with students moving off-campus, the means by which institutions are fulfilling these obligations are changing as well.

This article provides practical guidance for Title IX coordinators and investigators for responding to a variety of issues and demands. In light of the ever-changing landscape, we advise you to consult with your legal counsel to obtain legal advice specific to your circumstances.

Conducting Remove Interviews

Many institutions have already adopted some remote investigation practices, particularly to support investigations with study-abroad students and investigations conducted by outside investigators. There are a variety of technologies to help institutions conduct interviews and share information among various parties and witnesses. As an initial matter, we recommend that Title IX coordinators consult with their information technology (IT) department Chief Information Officers (CIOs) to determine which systems are best suited to their unique online environment.

Additionally, IT and CIO partners can help Title IX teams assess the privacy and security risks of such tools and encryption capabilities, as well as troubleshoot problems relating to such tools.

Video conferencing through tools such as Skype, Zoom and WebEx allows investigators an opportunity to build trust, establish rapport, and assess body language, and are preferred over audio-only conferencing tools. The following are recommended best practices for conducting remote interviews:

  1. Control the environment. Dress professionally and find a quiet space where you will not be disturbed. Use your technology tool to preview your interviewee’s view of your working space. Secure any confidential information so it is not visible.
  2. Ensure privacy. To facilitate a confidential and often sensitive conversation, notify the interviewee in advance that you will be using video conferencing. Suggest that the individual find a private location to participate in the video call. Ensure that the area in which you are working will not be accessed by other persons during your interview.
  3. Know your technology. Be familiar with the technology tool you are using and its features (e.g., mute, chat, share screen, turn video on/off, switch in/outputs for microphone and speakers). Be ready to help the interviewee troubleshoot.
  4. Include support persons. In advance of an interview, remind the interviewee of their right to have a support person on the line, including through the video conference, and invite this support person to join the remote meeting.

Sharing Reports, Other Evidence Remotely

Recognizing some variability, institutions of higher education generally follow one of three procedures to provide preliminary reports and evidence to the parties for their review:

  • Providing a copy of the report;
  • Providing a redacted report, while allowing the parties to view unredacted information in-person at a scheduled time; or
  • Providing only in-person access to the report at a scheduled time.

While institutions should comply with their applicable procedures and past practice to the greatest extent possible, stay-at-home orders and other COVID-19 prevention measures may render in-person report inspections difficult or impossible.

10 Practical Tips for Title IX Coordinators During COVID-19 Crisis
  1. Educate institutional leadership about the need to satisfy civil rights obligations and continue Title IX-related work. Inform them about any necessary modifications to existing practices.
  2. Consult with your CIO and/or IT department regarding the use of technology tools, particularly with regard to security and encryption.
  3. Learn available technology tools and their features.
  4. Level-set all investigators on use of technology tools, virtual interview strategies and related techniques.
  5. Be knowledgeable about what virtual capabilities your advocacy and counseling teams are implementing, if any.
  6. Identify a protocol for sharing reports and evidence virtually.
  7. Consider updating your “rights and options” notifications to include a notice about providing support to your students and other university community members in identifying other resources and services in their now-local community.
  8. Ask whether your institution has a heat map identifying the locations of displaced students. If not, consider creating one, to the extent possible, to assist with your efforts to support parties involved in Title IX matters.
  9. Plan to over-communicate with parties, support persons and witnesses.
  10. Be ready to get creative and think outside the box. Rely on both inside and outside partners, including your community of practice, to successfully complete investigations, adjudicate claims and support students.

To address this need, there are a variety of technology tools that can serve as a substitute for an in-person review. Some applications, such as Google Drive, Onehub and Box, allow individuals to access information remotely through web-based platforms with functionality allowing the institution to “lockdown” documents, thereby prohibiting a user from downloading or printing documents. Of course, nothing is foolproof, and such applications cannot prevent an individual from using their cell phone or other device to produce an image of their computer screen.

To the extent that your institution only permits in-person review of reports and evidence as an effort to help protect the privacy interests of all parties and witnesses involved—and you wish to transition this practice to an online platform—it is worth emphasizing to the parties the institutions’ expectations for use of any documents shared remotely.

Indeed, using this as a teaching opportunity to explain the underlying reasons for any prohibitions against copying, removing, or photographing information, in addition to any preclusion on sharing or disseminating that information, can help the party understand not only the bounds of their access but the reason for such a restriction. At the same time, institutions must exercise care not to overstep and inadvertently infringe upon any rights of the parties to discuss the allegations or investigation.

For institutions transitioning the function of sharing the preliminary report to an online platform, it is recommended that they comply with past practices regarding which information is shared. For example, if historically parties were able to review in-person the entire investigative report and underlying evidence, the institution should continue to allow for inspection of that same body of information through the online platform.

Providing Interim Measures

Interim measures are individualized services offered to a complainant and/or respondent prior to and during an investigation. Institutions’ obligations to provide interim measures continues even if students have left campus due to COVID-19 prevention measures. As an initial matter, the Title IX coordinator should revisit interim measures currently provided to students to evaluate the need for any change in light of the COVID-19 pandemic, particularly in light of students’ departures from campus and other COVID-19 prevention measures where applicable.

Going forward, Title IX coordinators must be knowledgeable about what resources and services are being continued during this time, and whether the delivery of those services is changing due to the pandemic. For instance, referrals to campus-based counseling services are one example of an interim measure that would certainly change under stay-at-home orders. If these services are being provided online, it is recommended that, if possible, campus counseling provides telehealth services to allow for continuity of care and/or that assistance is given to students to transition to care from a counselor in their local area.

Other considerations for Title IX coordinators are the institutions’ efforts to assist individuals in making reports to law enforcement and providing referrals for local community services. With students returning home, and potentially dispersed across the country, institutions’ current local resources may no longer be the best option to support those students. Title IX coordinators should evaluate whether local community resources to which students are typically referred are capable of addressing students’ needs if they have left the area.

Additionally, as needs in other cities and states may arise, Title IX coordinators may want to consider reaching out to other Title IX coordinators to build a community of practice and to help identify other resources that are local to students in need.

See Page 2 for FAQs posed by viewers during a recent webinar on Title IX during COVID-19

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