Earlier this evening the U.S. Department of Education posted the most recent Frequently Asked Questions document to their COVID-19 (“Coronavirus”) Information and Resources for Schools and School Personnel webpage.
The overview of the document makes clear that the Department’s Office of Civil Rights (OCR) developed the five page, nine question technical assistance document, “Questions and Answers for Postsecondary Institutions Regarding the COVID-19 National Emergency”, to assist postsecondary institutions with meeting their obligations under Federal civil rights laws during this difficult and unprecedented time.
A recap of the questions and key portion of the answer contained within the technical assistance document included:
Q1: Do institutions that provide distance learning still have to comply with Federal disability laws?
A1: Yes. Institutions must still meet the requirements of Section 504 of the Rehabilitation Act of 1973 (Section 504), Title II of the Americans with Disabilities Act (Title II), and other Federal disability statutes.
Postsecondary institutions should continue to educate students online even as they develop and improve their ability to meet the requirements of Federal disability law.
Q2: If postsecondary institutions are offering distance learning, what resources are they required to provide to students with disabilities in order to comply with Federal civil rights laws?
A2: Students with disabilities at postsecondary institutions must receive academic adjustments, auxiliary aids and services, and reasonable modifications in policies, practices, and procedures, where doing so would not impose an undue burden nor cause a fundamental alteration to the service, program, or activity.
Q3: For public colleges and colleges receiving Federal financial assistance from the Department that are offering distance learning, may institutions use captioning rather than sign language interpreters in order to fulfill their legal obligations to students who are deaf and hard of hearing under Title II and Section 504?
A3: Yes, in some circumstances. The Department understands that, during this national emergency, postsecondary institutions may not be able to provide all services in the same manner they are typically provided.
Q4: What if a postsecondary institution providing distance instruction determines it cannot offer a student with a disability a particular effective academic adjustment?
A4: OCR recognizes that educational institutions are straining to address the challenges of this national emergency. OCR encourages institutions to think creatively to provide alternative methods of accommodation. These types of innovative solutions may utilize new technology or other options to meet the needs of students with disabilities.
Q5: If a postsecondary institution has suspended instruction or is only offering distance learning, is the institution still required to continue with their investigations of harassment complaints pending or made under Title IX of the Educational Amendments of 1972 (Title IX), Title VI of the Civil Rights Act of 1964, and other civil rights statutes?
A5: Yes. …institutions should make a good-faith effort (and document the steps the institution took) to respond promptly and effectively to reports of discriminatory harassment (for instance, on the basis of race, sex, or disability), and to conduct fair, impartial investigations of student and employee complaints of such harassment in a reasonably timely manner, while also taking into consideration the health, safety, and well-being of all their students and staff.
Q6: 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?
A6: Any decision regarding the timetable of an investigation or adjudication should be made on a case- by-case basis. For example, Title IX requires institutions to adopt reasonably prompt time frames for major stages of the complaint process. There is no fixed time frame under which a school must complete a Title IX sexual harassment investigation, and the Department’s 2017 Q&A on Campus Sexual Misconduct is clear that reasonableness and good faith are the key elements of compliance with Title IX.
Q7: If an institution has suspended instruction or is only offering distance learning, may it modify its Title IX procedures for resolving complaints due to the current circumstances?
A7: Yes, with limitations. If an institution’s methods for receiving student and employee complaints of sex discrimination (including sexual harassment) have changed as a result of a COVID-19 interruption, the institution should promptly notify its students and employees of such changes.
Q8: Should institutions still accept harassment complaints if they are offering only distance learning?
A8: Yes. Institutions should still accept reports and complaints of discriminatory harassment. Institutions should respond appropriately to reports of harassment covered by Federal civil rights laws, including harassment on the basis of race, sex, or disability, alleged to occur in distance learning platforms, in a manner consistent with protecting the health, safety, and well-being of all students and staff.
Q9: How should institutions handle existing no-contact and no-communication agreements or orders between complainants and respondents?
A9: To the extent necessary to ensure compliance with Title IX or other Federal civil rights laws, no- contact and no-communication agreements or orders with respect to complainants and respondents should remain in effect, and institutions should continue to enforce no-contact and no-communication agreements and orders as appropriate to ensure equal educational access for complainants and respondents, and to prevent discriminatory harassment. Institutions may need to modify these orders in response to changed circumstances of the parties, and of the institution, resulting from operational adjustments relating to COVID-19.
ALL POINTS BULLETIN: Tomorrow, be on the look out for both a summary of the key takeaways from
today’s Senate Health, Education, Labor and Pensions Committee hearing entitled, “COVID-19: Safely
Getting Back to Work and Back to School” AND the likely notification of the Department’s highly-
anticipated UPDATE Guidance for Interruptions of Study Related to Coronavirus.