Even though the coronavirus has closed schools across the country, Title IX proceedings are continuing from allegations made while school was still in session and students were still on campus. While schools have largely succeeded in moving those investigations online, there are real questions about whether online hearings will allow for accurate determinations of credibility, as well as whether schools can conduct a prompt Title IX investigation that complies with federal law.
Schools Close, Title IX Cases Continue
Colleges across the U.S. were quick to close and send students home to stem the spread of COVID-19 or the coronavirus. Tens of thousands of students have been affected.
While they are not on campus, anymore, the Title IX allegations that had been pending when the closures went into effect are still moving forward. Claims of sexual misconduct were in all of the different stages of resolution at the time of the shutdown, from just received allegations to initial stages of the investigation process, all the way through sentencing determinations for those had been found in violation by hearing boards.
Even though they have been shut down to students and their campuses are empty, schools are still contacting students about new cases that have been initiated and which name them as defendants. Schools are still scheduling interviews between Title IX investigators and both complainants and defendants.
However, because these parties are no longer on campus and can even be in different countries, these hearings are being done remotely with one of a variety of teleconference options.
Are Title IX Hearings Via Video Chat Reliable?
To an extent, there are some concerns about the reliability of video chats for such sensitive conversations. Title IX investigators are often faced with the nearly impossible task of determining which side of a story is more believable – the complainant's version, where they were victims of abuse, or the accused's side of the story, where it either didn't happen or was consensual. Making a reliable credibility determination is difficult enough. Having to do it through online conversations rather than in-person can make this difficult task even harder and less reliable and that is why, whether during this challenging time due to the health crisis or even under the best of circumstances, having an attorney advisor with the requisite experience and resources to effectively and successfully represent those accused is critical to in an effort to ensure a fair process and a favorable outcome.
Are Schools Going to be Able to Provide a Prompt Investigation?
Federal law requires Title IX investigations to be done relatively quickly. However, 34 C.F.R. § 668.46 does not set a hard timeline for these investigations. Instead, it merely says that Title IX investigations should be “completed within reasonably prompt timeframes.”
Because there are no hard rules on how quickly the investigation has to reach a resolution, those who have pending Title IX cases are unlikely to get very far by arguing that the coronavirus shutdown has drawn out their case for too long. Courts hearing such an argument are likely to decide that the exceptional circumstances at play overwhelm the soft rules that call for expediency.