Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About

Trending Topics

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni

    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor & Employment
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations

    Industries

    View All

    • Cannabis
    • Consumer
    • Energy
    • Entertainment
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Non Profit
    • Real Estate
    • Technology

    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    1. Home
    2. Insights
    3. Alerts
    4. Addressing Title IX obligations, due process, and student reasonable expectations in the face of the COVID-19 pandemicAlerts

    Alert / Higher Education Alert

    Addressing Title IX obligations, due process, and student reasonable expectations in the face of the COVID-19 pandemic

    March 17, 2020

    Share

    By Steven Richard

    Student conduct processes must proceed while adapting to the challenges of the COVID-19 pandemic.

    As higher education institutions confront the evolving challenges of the COVID-19 pandemic, their Title IX obligations remain in place. Colleges and universities must effectuate a “prompt and equitable resolution” of student complaints of sexual and gender-based harassment and discrimination. Title IX’s requirements become more vexing with students off campus, while continuing to participate in educational programs and activities remotely through online platforms.

    Public institutions must also adhere to their procedural due process obligations, which are subject to a national judicial landscape where courts have not spoken uniformly on what process appropriately fulfills the constitutional mandates of proper notice and an opportunity to be heard. For example, in the Sixth Circuit, public institutions must afford accused students with a right to cross-examine his or her accuser at a hearing, which may be conducted by the accused or a representative to test credibility. By contrast, the First Circuit does not require direct student-on-student cross-examination at a hearing and instead permits public institutions to undertake an “inquisitorial” approach, where a neutral party conducts the questioning. Constitutional due process requirements are more challenging with students, advisors, and witnesses disbursed across the nation or internationally.

    Careful attention must be undertaken to guard against the risks of breach of contract claims when implementing substantive code provisions (e.g., does your code expressly state the institution’s jurisdiction over off-campus or online activity?) and grievance resolution procedures (e.g., are the delineated steps and their prescribed time frames sufficiently adaptable to the complexities of the ongoing crisis?). As we have seen in several recent judicial rulings, courts have focused increasingly on the promise of “fairness” in an institution’s educational contract, interpreting its scope based upon a student’s reasonable expectations. The spectrums of what constitutes “fairness” and “reasonable expectations” could easily become subject to differing interpretations during these exigent circumstances.

    Succinctly stated, colleges and universities must now be more flexible in their investigative and adjudicative processes. Below are some suggestions to help to enable the proper continuity of responses to and resolutions of sexual harassment and misconduct cases.

    Assess where each case stands

    At this challenging time, an institution must assess its pending cases holistically from the perspective of the allocation of available staffing and resources and each case individually to identify its unique issues or concerns. Regarding a case’s remaining procedural steps and previously established timelines, administrators must now project as foreseeably as possible what extensions and procedural modifications are justifiable to protect a prompt and equitable process, while possibly confronting differing positions among the student parties as to what changes are justifiable. Institutions must work carefully with information technology personnel to ensure that appropriate measures are in place allowing for the sufficient review of files remotely, while preventing against inappropriate dissemination and invasions of privacy rights.

    Also, if a student has been provided with an accommodation (e.g., a student with a disability), administrators must assess how it can be reasonably maintained. Further, a thoughtful evaluation must occur regarding the continuation of support measures, which could entail steps such as effectuating online counseling sessions or directing students to comparable supportive resources in their communities (which may become especially difficult to identify in this time of limited personnel interactions).

    Proceed forward incrementally and carefully

    To the fullest extent possible and practicable, Title IX and student conduct operations must continue under applicable policies, as impacted by institutional directives in the crisis response and with sufficiently noticed and explained procedures for remote participation. Parties should be instructed to contact immediately clearly identified administrators, if their remote participation in an investigation or adjudication is impaired or prevented by illness, quarantine, or for any other reason.

    For communications going forward, all points of contact must be updated continuously, as communication channels will alter, especially with administrators working remotely and the limited forwarding of certain telephone lines. All affected parties must always know whom to contact and where to turn in the protection of their rights.

    It is especially important to recognize that new complaints will be submitted while students remain off-campus, whether related to a prior incident on campus or allegations concerning recent off-campus conduct. The institution must provide proper notice and instructions on how a complaint may be filed remotely, including how it will receive and process complaints submitted anonymously.

    Reiterate no-contact orders

    No-contact orders must remain in place, but will be more challenging to maintain. Administrators must reiterate unequivocally that directives to avoid contact (especially online) continue while students are away from the campus. The notification must stress the vital importance to report promptly any alleged violation of the no-contact requirements, particularly because responsive actions, including additional disciplinary actions, will be more complex to effectuate.

    Be clear and document

    More than ever, this is a time to speak with clarity and through only appropriate personnel. Don’t simply assume that parties will appreciate and understand that there will be alterations in the process, but rather identify in writing specifically and explain proactively changes in submission deadlines and procedures for participation. Again, recognize that in breach of contract claims, courts will focus on the reasonable expectations of the student, not the institution. With resources strained and administrators facing many constraints professionally and personally, colleges and universities cannot lose sight of ensuring continuously that all participants in the ongoing process receive concurrent and timely notice of where it stands, how it may be altered, and when it is targeted for completion (especially with the uncertainty of when students will return to campuses).

    Stay informed

    Before the declaration of the national emergency, colleges and universities were awaiting anxiously the promulgation of the new Title IX regulations. According to recent information posted by the Office of Management and Budget/Office of Information and Regulatory Affairs, review meetings were scheduled through April 6. Obviously, circumstances leave in doubt precisely when the regulations will be finalized and will take effect.

    Nonetheless, the judicial landscape continues to develop. While courts are closed to physical entry and hearings are being modified to occur through video or telephonic conferences, pending Title IX, due process, and contract cases proceed. For example, on March 11, the Sixth Circuit issued a significant decision (with a strongly written dissent), addressing a university’s ongoing obligation to evaluate the adequacy of its responsive measures and the need for additional action, if prior responses appear ineffectual, to prevent further student harassment and avoid Title IX deliberate indifference liability. We will analyze this decision for you in an upcoming alert. Currently, significant issues in respondent lawsuits are under advisement before the Third, Sixth, Eighth, and Ninth Circuits. Impactful and precedential decisions, which will be based upon factual records developed under much different circumstances than the current emergency conditions, will be issued within the next few months.

    Also, we could see more judicial filings seeking injunctive relief, challenging whether and how schools should conduct disciplinary cases at this time. Courts will balance the risks and harms to determine whether to cease or alter a student conduct process. Documentation showing proper notice and clarity will be vital to defend against an injunction request, especially to respond to a skeptical judge questioning why the school is moving forward with conduct proceedings.

    Stay tuned

    The above are just some of the issues facing colleges and universities in their student conduct cases during the COVID-19 pandemic. We will provide updates, particularly on new regulatory or judicial developments, to assist as you navigate through these turbulent times.

    Industries

    Higher Education

    Insights And Happenings

    • Alert

      Initial thoughts about the Title IX regulations

      May 9, 2020
    • Article

      COVID–19 and private higher and secondary education; a necessary paradigm shift

      May 7, 2020
    • Alert

      NY federal court allows a student to proceed with a negligence claim that she was owed a special duty in the investigation of her sexual misconduct complaint

      April 23, 2020

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • © 2023 Nixon Peabody. All rights reserved
    • Privacy Policy
    • Terms of Use
    • Statement of Client Rights
    • Supplier Diversity Program
    • Nixon Peabody International LLC
    • PAL