April 19, 2021

Volume XI, Number 109

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April 16, 2021

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Title IX Homework for Spring Break: Preparing for a Potential Uptick in Title IX Reports

My grandmother lived by the rule that summer flowers should not be planted before spring break, no matter how much warm weather March might bring. The week after spring break would find her working furiously in her garden, sometimes catching up with her neighbors who had planted early, but more often taking a bit of satisfaction in looking over the prematurely planted and frostbitten flowers in surrounding yards. The freeze warning I just received from my smartphone app reminded me of this sage advice from this beloved, wise, and masterful gardener. But it also reminded me that Title IX claim season is now upon us.

College and university administrators often see a surge in Title IX cases on their campuses after spring break-related events and when students are also coping with the pressures of looming final exams. Administrators often struggle with the time pressure of investigating and adjudicating Title IX reports before graduation and summer breaks begin. The situation may be exacerbated this year, with the lifting of COVID-19 restrictions and the return of campus life to more ordinary conditions. For those who have not been anticipating this season with a mixture of dread and preparation, now is the time to consider getting things in order. Below is a list of items that administrators might consider undertaking when preparing for a potential uptick in Title IX claims and other misconduct reports and complaints.

Reviewing the school’s Title IX and other sexual misconduct policies.

In 2020, the U.S. Department of Education promulgated new rules governing Title IX reports, investigations, and adjudication. Lawsuits seeking to forestall or reverse these regulations have been filed in Maryland, Massachusetts, New York, and in the District of Columbia, and a new case was filed in California in March 2021. President Joe Biden has issued an executive order requiring the Department of Education to review those regulations. None of the lawsuits has succeeded in overturning the regulations (two cases have been dismissed, two have resulted in denied motions for preliminary injunctions, and three remain pending), and the department has not completed its regulatory review. So, for now, the regulations remain in effect.

Reviewing the visibility of reporting mechanisms.

Administrators want to be notified of a report of sexual misconduct immediately after it happens, not when they receive service of a lawsuit. Consider reviewing the school’s website, student and employee publications, and other internal communications to make sure all potentially affected individuals know how and to whom to report Title IX violations.

Reviewing the mechanics and “feel” of the reporting mechanisms.

Are the reporting procedures cumbersome, confusing, or obscure? Are they frightening or intimidating? Reporting procedures that are sufficiently simple, straightforward, and user-friendly may help encourage the reporting of legitimate issues.

Reviewing the communication schedule and procedures.

Proper communication and transparency are important factors during the Title IX investigation and adjudication process. Consider making a list or timeline of the critical and important times, methods, and topics of communication with reporting students and respondents and using it as a checklist to guide outreach during the process.

Reviewing available supportive measures.

Colleges and universities are required to provide complainants with supportive measures unless they document why failing to do so was not clearly unreasonable in light of the known circumstances. The Title IX regulations also speak to the provision of supportive measures for respondents. Supportive measures must be non-disciplinary, non-punitive, reasonably available, and without fee or charge to the complainant or the respondent, and they may not “unreasonably burden” the other party. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus security escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other arrangements. Administrators may want to periodically review their schools’ supportive measures provided to complainants and respondents to assure they remain available, and properly support the needs of the parties at such a challenging time.

Reviewing the school’s ability to investigate and adjudicate an increased number of claims.

Does the institution have enough qualified, trusted, and properly trained investigators, advisors, hearing officers, and appeals decision-makers? Finding qualified professionals is difficult after receiving a report. Accordingly, administrators may want to take this opportunity to identify, vet, and establish contact with professionals who can be engaged to help when needed. During the selection process, administrators may want to review training, certification, education, and experience, as well as personality and behavioral characteristics, that fit the role for which the individual is being considered. A good hearing officer might not be a good investigator or advisor. A good advisor might make a subpar investigator. Diversity among the cadre of professionals can be helpful, so administrators may want to recruit individuals of different races, ethnicities, genders, ages, and educational and economic backgrounds.

Assessing the institution’s infrastructure.

The Title IX investigation and adjudication process, as defined by federal regulations and institutional policy, often presents logistical and technical challenges. This may be a good time to consider how to accommodate interviews, handle documents, collect and preserve electronically stored evidence (ESI), conduct hearings, and optimize recording capabilities and methods. Facilities maintenance staff and information technology professionals, as well as other professionals on campus, can help identify resources for conducting quasi-judicial proceedings.

Reviewing the remedies.

Consider reviewing and cataloging the remedies that are available to the institution. Title IX remedies must restore or preserve the complainant’s equal education access. Are the institution’s available sanctions an effective means of achieving that requirement? Are traditional disciplinary measures appropriate and adaptable to different circumstances? While the regulations still permit an informal resolution process (with consent of all parties), administrators may want to consider the terms of resolution that might be offered or suggested through mediation or restorative justice measures.

Reviewing the institution’s Title IX and sexual misconduct training programs.

The beginning of the fall semester is another time that often sees a surge of reports and complaints, particularly involving younger students experiencing life away from home for the first time. Administrators may want to take this opportunity to revamp training programs to make students aware of their rights and responsibilities, and standards of behavior.

It has been a long year, and COVID-19 considerations have stretched administrators’ time and resources beyond imagination. But administrators certainly don’t want to be “deliberately indifferent,” and next year when it comes to Title IX preparation, don’t be like my grandmother and wait for spring break. Taking the time before campus life blooms again to review and address the institution’s Title IX procedures and policies may be a valuable investment of time and resources.”

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© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 97
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About this Author

James C. Pennington Employment Attorney Ogletree Deakins Birmingham, AL
Office Managing Shareholder

Mr. Pennington is the Managing Shareholder and a founding member of the Birmingham Office of Ogletree Deakins. For more than two decades, he has represented employers in a wide range of labor and employment law matters, including administrative agency charges, federal and state court litigation, union campaigns and collective bargaining.

Mr. Pennington strives to help employers achieve peaceful, productive workplaces. He helps employers avoid workplace disputes by providing management training and developing defensive documentation such as effective employee handbooks, dispute...

205-714-4430
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