Introduction

 Many students already struggle to maintain equal access to education following gender discrimination, and we know that marginalized students — such as LGBTQ individuals, students of color, low-income students, students from immigrant families, and students with disabilities — are more vulnerable to these challenges. Equal Rights Advocates remains committed to ensuring that distance learning does mean that these students are left even further behind. 

We are also keenly aware that the needs and challenges of both students and schools are rapidly changing. We learn new information daily about what remote education means and entails, and we hear regularly from survivors about how these changes impact their civil rights. As advocates, we aim to balance our expertise with the knowledge that we cannot rush to respond to a situation we do not yet fully understand and which changes constantly. We encourage everyone — clients, school administrators, and advocates such as ourselves — to address this moment with honesty, transparency, and flexibility. There is no one size fits all approach in a crisis; we must find new and creative ways to support the rights and well-being of all students, especially those at the highest risk of harm.

With that in mind, ERA has developed best practices for how Title IX administrators can best serve students remotely and we encourage students to advocate for these practices. We will update this page as needed to reflect our developing understanding of the most pressing concerns. 

Remote work plans

Work quickly but thoughtfully to create a remote work plan for the Title IX office. Title IX is not placed on hold during this crisis. Students still suffer discrimination and still need help. Schools must continue to prevent and address sexual harassment and assault during this period of remote learning. Title IX offices must therefore proceed as if distance learning is the new normal, rather than placing cases on indefinite hold in the hopes that this crisis resolves. In order to do this effectively, Title IX offices should create a remote work plan that supports the continued operation of all responsibilities and services. This plan should account for factors such as:

  • Staff schedules and capacity while operating remotely
  • Student schedules and capacity during remote learning, including considerations such as varying time zones 
  • File and data access, including paper files and confidential materials 
  • Access to necessary technology 
  • Technology security and data privacy 
  • Flexibility for adapting to ever-changing circumstances 
  • Continuing to center the physical and emotional safety of students

Avoid delays

Plan to move forward with Title IX investigations and hearings without unreasonable delay. While the switch to remote learning will inevitably alter Title IX procedures for the time being, it does not change students’ fundamental right to a prompt and equitable resolution of sexual misconduct claims. Many survivors are forced to sit with trauma and uncertainty for the entirety of their Title IX case, preventing them from moving on or finding closure. Unnecessary delays risk further traumatizing students and can even delay their healing from the underlying trauma of sexual misconduct at an already overwhelming time. (Click to learn more about the trauma of institutional betrayal.) Administrators should: 

  • Seek to extend investigations by no more than absolutely necessary to design and implement a remote investigation plan. Example: A delay of more than two weeks, without other grounds supporting such delay, would appear unreasonable. 
  • Provide written notice to students of any delay in their case at least 10 days in advance of the deadline or scheduled event (e.g. interviews, hearing dates) 
  • Immediately inform all students reporting misconduct if their investigations will not be concluded within 60 days (including what time frame they should expect)
  • Prioritize cases involving graduating witnesses or parties to ensure resolution before the academic year concludes

Remote reporting

Ensure that all students are aware of remote Title IX reporting procedures. Schools should not assume that, because students are not in physical contact with one another, students have less of a need to report misconduct. As with most school breaks (when students have time and space to process traumas), we expect to see an uptick in reporting of sexual assaults that took place before distance learning was implemented

Additionally, we have already heard from students experiencing sexual or other gender-based harassment during online classes. Title IX offices must inform all students of their remote reporting options, especially if changes to those options prove necessary, and reassure students that their offices will continue to operate to prevent and address discrimination during this time.

Continued support measures

Continue providing supportive measures to student survivors, and be flexible and understanding in addressing their requests. The collective trauma of this pandemic, including the sudden switch to remote learning from being on campus, may change or increase the type of support survivors need to continue participating in both their education and Title IX proceedings. Administrators should be prepared to address survivors’ ongoing academic and emotional needs remotely, by measures such as:

  • facilitating workload adjustments
  • connecting students to remote counseling options, and 
  • granting extensions of Title IX procedures

Similarly, existing interim measures may be inadequate to address the safety and well being of students with ongoing Title IX investigations during remote learning. For example, a no-contact order may not reflect new considerations of online classes or could fail to explicitly address online harassment. Any existing interim measures should be assessed for effectiveness and practicability in collaboration with students. 

Flexible but prompt

Be flexible and understanding while ensuring prompt and equitable resolution. While schools should be prepared to promptly proceed with Title IX cases, they should understand the unique challenges currently affecting students’ participation in the Title IX process. The following are examples of situations in which a school should be flexible about timelines, including, in some circumstances, considering postponing the investigation until remote learning is over:

  • A survivor has not told their parent about the assault or investigation and does not yet want them to know. Their school has scheduled a remote hearing, which is scheduled for 8 hours. The survivor’s only semi-private space is their bedroom, which shares a wall with their parent’s room. They are worried that their parent will inquire or overhear parts of the proceeding. 
  • A reporting student is experiencing increased trauma and post-traumatic symptoms because of the pandemic, such as dissociation or panic attacks. They are worried that being interviewed by the investigator about their assault right now will cause greater emotional distress. 
  • A respondent is responsible for watching their younger siblings while their parents work because the parents are essential service providers. The misconduct hearing is scheduled for a day their parents will be working. 
  • A hearing impaired witness had requested closed captioning to participate in a live video hearing without assistance, but the available technology does not support this feature. Because of social distancing requirements, they do not have access to an appropriate interpreter.

In considering requests by either party to postpone, administrators should keenly assess whether there would be significant prejudice to the other party if the request is granted. For example, granting a survivor’s request to postpone a hearing until remote learning is over, where the respondent has not been issued any interim sanctions and is not set to graduate, is not likely to be prejudiced against the respondent to the extent that it warrants denying the survivor’s request. On the other hand, requests to postpone remote hearings not based on a hardship but rather simply on preference — such as a party’s preference to be in the same room as their attorney or advisor during the hearing — where such disadvantage applies equally to both parties, is not likely to warrant granting the request over the other party’s objection. 

Finally, while administrators should work with students to adapt remote procedures as necessary to avoid penalizing students who are experiencing hardship, they must not allow students to abuse the system and delay the proceedings unnecessarily

Remote behavior & consequences

Administrators and educators should work together as appropriate to define clear behavioral expectations for students during remote learning and set clear consequences for violations. These should both be frequently communicated to students in an age- and environment- appropriate manner; K-12 students in particular may benefit from reviewing these guidelines daily or at the start of each class. Consequences could include 

  • removing the student from the virtual class for a 10-minute period or for the rest of the class session
  • exclusion from future classes, and/or 
  • other disciplinary action as appropriate

Addressing digital misconduct

Title IX offices should be aware of an increased risk of virtual sexual harassment as students spend more time online. This may take place during remote classes — such as by posting obscene comments or images during video calls — or outside of class through social media or other forms of cyberbullying and cyberstalking. The increased use of video meetings for study groups and school clubs may also open the door to further harassment, as students and professors gain unprecedented entry into each other’s personal space. 

Schools should be prepared to prevent and respond to digital misconduct, including by helping professors understand their obligation to affirmatively prevent harassment and stop any misconduct that does occur. Schools may consider:

  • Requiring all students to use the same neutral background during calls, both to hide their private space and prevent the viewing of obscene imagery 
  • Disabling screen sharing by students by default (Professors may temporarily grant permission to screen share and adjust settings accordingly)
  • Assigning a TA or another responsible student or employee to monitor chats and look out for abusive behavior 
  • Create a method for immediately reporting harassment or other violations of behavioral expectations, such as private messaging the teacher (teachers should remember to monitor their private messages throughout class)
  • Encourage students to take screenshots or recordings of obscene, harassing, or abusive behavior

BEST PRACTICES: Remote proceedings

ERA’s Recommended Best Practices for Remote Title IX Proceedings

With adequate preparation and trauma-informed consideration, video conferencing can be an effective method for conducting Title IX hearings remotely. Schools should make sure they have a thorough plan for remote proceedings that accounts for logistical challenges, ensures confidentiality, and protects students’ well-being. Here are some best practices and considerations for schools to keep in mind during remote hearings:

1.  Plan, set up, and test technology in advance.

While some technical issues are to be expected, schools should work out as many technical details as possible before the day of the hearing. Administrators should ask hearing participants to test their video conference access a day or two before the hearing in case issues arise, and should test all equipment being used by school officials. If possible, the hearing officer or Title IX administrator coordinating the hearing should make sure tech support is available during the scheduled hearing time. Schools should also think through the following logistical questions and plan in advance for how to enforce them:

  • How will confidential communications between parties and their advisors be facilitated during the hearing?
  • How will the confidentiality of the proceedings be protected? How will schools ensure that family or housemates are not privy to the information disclosed during the hearing? How will the school prevent intrusions into the session and/or unintended recording of the session by the video conference provider? How will the school prevent illicit recording of proceedings?
  • How will requirements such as only having one advisor be enforced remotely?
  • How will hearing officers ensure that a witness does not have access to their statement or is not simultaneously communicating with the parties while testifying?

 

2.  Ensure security of hearing technology.

Administrators should ensure that remote hearing technology is suitably secure for a confidential proceeding. Some suggested ways to make remote procedures more secure include:

  • Password protecting video conferences or calls, and using a different password for each hearing
  • Do not use the video conference waiting room feature during remote hearings (as researchers have found privacy flaws with this feature)
  • Save any recordings to a hard drive or external device. Do not save any conference recordings to the video conference cloud platform

 

3.  Prevent harassment and other misconduct during the remote hearing.

The parties should not be able to communicate with or see one another during the hearing, except during their own testimony. Schools can achieve this in a variety of ways: 

  • Set expectations for hearing conduct and testimony ahead of time, and clearly communicate these expectations and consequences for violation to participants  
  • Tell both parties in advance, and remind them at the beginning of the hearing, that any communication between the parties is prohibited during the hearing
  • Disable both parties’ video and audio until it is their turn to testify. Do not allow the parties to be heard or seen on the video conference otherwise (to prevent verbal or non-verbal harassment and intimidation)
  • Disable both the group and private chat functions, if possible. If not, assign an administrator to closely monitor any chat (including private chats) for harassment
  • Require all participants to use a standard background (to ensure their private places are not exposed)
  • Ensure students are not reading a prepared statement or otherwise “cheating” by asking them to show the hearing officer the desk or space around them and share their screen (for privacy, this should not be done in front of other parties or witnesses)

 

4.  Incorporate extra time into hearing schedules. 

Between potential technical issues and the extra time needed for parties to separately consult with their advisors (including signing in and out of various remote sessions), schools should anticipate that remote hearings will take longer than is typical. Schools should schedule breaks between each witness, and leave buffer time where possible. Schools should be sure to give parties adequate time to consult with their advisors during these breaks. Schools might also consider scheduling different parts of the hearing on different days for logistical reasons (for example, scheduling witness and party testimony on different days to work around class schedules and caretaker duties).

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