New OCR Guidance on Complying with Federal Civil Rights Laws during the Coronavirus Pandemic

The U.S. Department of Education Office for Civil Rights (“OCR”) has issued guidance to assist  postsecondary institutions in meeting their obligations under Title VI, Title IX, Section 504 of the Rehabilitation Act, and Title II of the Americans with Disabilities Act during the Coronavirus pandemic. The guidance, which takes a Q&A format, makes clear that institutions transitioning to online and virtual platforms for distance learning must continue to comply with and investigate complaints made under federal civil rights laws. Current operational challenges related to COVID-19 do not pause or stop the obligations of colleges and universities under federal civil rights laws.  The Department specifically recognized “that in this unique and ever-changing environment, these exceptional circumstances may affect how education, including accommodations for students with disabilities, are provided.”

Other noteworthy takeaways from the guidance include:

• When offering distance learning, what resources are postsecondary institutions required to provide to students with disabilities in order to comply with federal civil rights laws?

Students with disabilities must receive “academic adjustments, auxiliary aids and services, and reasonable modifications in policies, practices, and procedures,” but only when doing so would not “impose an undue burden nor cause a fundamental alteration to the service, program, or activity.” It will be important schools document any determinations they make about undue burden or fundamental alteration. Instructors should work to accommodate students with disabilities when possible, such as by using audio technology to read documents to students who are visually impaired or by making other academic adjustments and reasonable accommodations online or telephonically.

• Can public institutions who receive federal funds use captioning rather than sign language interpreters to fulfill their legal obligations when offering distance learning to students who are deaf and hard of hearing under Title II and Section 504?

Institutions can use captioning rather than sign language interpreters if they determine on a case-by-case basis that captioning provides communication that is as effective as sign language interpretation and affords the student with a disability an equal opportunity to participate in and benefit from its service, program, or activity. This determination should be an interactive process with the student and can take into account the unique circumstances of the pandemic.

• What if a postsecondary institution providing distance instruction determines it cannot offer a student with a disability a particular effective academic adjustment?

In instances when an institution can establish and document that providing a particular effective academic adjustment would result in a fundamental alteration or undue burden, the institution would still be required to take other steps that would nevertheless ensure that, to the maximum extent possible, the individual with a disability can participate in, and receive the benefits or services provided by, the institution’s education program or activity. OCR recognizes that “educational institutions are straining to address the challenges of this national emergency” and encourages institutions to “think creatively to provide alternative methods of accommodation,” such as through use of new technology.

• Are institutions still required to continue with their investigations of harassment complaints pending or made under Title IX, Title VII, and other civil rights statutes?

Yes  Institutions may not adopt a blanket policy putting all investigations or proceedings on hold until campuses resume normal operations, or a policy refusing to accept and respond to new complaints.

Institutions should make a good-faith effort to promptly and effectively respond to reports of discriminatory harassment and to conduct fair, impartial investigations of complaints “in a reasonably timely manner, while also taking into consideration the health, safety, and well-being of students and staff.”

The Department noted that the final Title IX regulations had been issued on May 6, 2020 and committed to updating this guidance as necessary “to provide updates regarding how the final Title IX regulations could apply to schools that have not resumed normal operations” as of August 14, 2020, the effective date of the final regulations.

For tips on conducting remote Title IX investigations during COVID-19, visit HMBR’s blog post on this topic.

• What if an institution needs more time than usual to complete a Title IX sexual harassment investigation and adjudication due to circumstances arising from operational challenges relating to COVID-19?

OCR advises that institutions should make adjustments to their timetables for an investigation or adjudication on a case-by-case basis. OCR will evaluate an institution’s good-faith efforts with consideration of reasons why delays due to COVID-19 may be unavoidable in particular cases.

However, OCR provides that “institutions should not delay investigations or hearings solely on the basis that in-person interviews or hearings are cumbersome or not feasible, so long as the institution is able to comply with the requirements in 34 CFR 106.8 to resolve complaints promptly and equitably.” Specifically, institutions should not institute a blanket policy that puts investigations or disciplinary proceedings on hold until normal operations resume on campus. Additionally, institutions should use technology, as appropriate, where in-person interviews or hearings are not otherwise possible.

Further, institutions are reminded to “promptly advise all parties of any COVID-19 delays that are anticipated in the party’s individual case, include the reasons for the delay and the estimated length of the delay.”

• Can institutions providing distance learning modify Title IX procedures for resolving complaints due to challenges related to COVID-19?

Yes, but with certain limitations. For example, institutions are not excused from providing “adequate, reliable, and impartial investigations, which provide the parties with the equal right to review and respond to evidence and the equal right to have an adviser of choice present during meetings and proceedings.” However, institution may modify procedures to meet this requirement through the use of remote technology. Additionally, institutions should promptly notify students and employees of any changes to the institution’s method for receiving student and employee complaints of sex discrimination as a result of COVID-19, such as changes to the Title IX Coordinator’s contact information or the replacement of in-person appointments with a web-based portal.

• Should institutions continue to accept harassment complaints when offering only distance education?

Yes, institutions should continue to accept and appropriately respond to reports and complaints of discriminatory harassment. Additionally, institutions should continue to offer supportive measures to students who report harassment, so as to “restore or preserve equal access to educational opportunities, protect the safety of all parties and the institution’s educational environment, and prevent discriminatory harassment.”

• How should institutions handle existing no-contact and no-communication agreements or orders between complainants and respondents?

OCR advises that these orders should remain in effect and that institutions should continue to enforce them as appropriate to ensure equal educational access and to prevent discriminatory harassment. OCR provides that institutions may need to modify these orders in response to changes resulting from operational adjustments related to COVID-19.

HMBR is available to advise and assist institutions in their efforts to comply with the federal civil rights laws and meet the operational challenges they face related to COVID-19.  Please contact HMBR’s Higher Education Group at 312-946-1800 for more information.