The U.S. Department of Education’s Office for Civil Rights (“OCR”) has published an extended Q&A designed to support educational institutions in protecting student rights and interests within the context of both virtual and newly re-opening classrooms. The document, released on May 13, focuses particular attention on steps that should be taken by institutions to safeguard students from various forms of discrimination and harassment, even as the COVID-19 pandemic alters instructional environments.

The Q&A document, which addresses both elementary/secondary and post-secondary learning environments, offers clarification on the application of specific civil rights protections to remote, hybrid, and in-person classroom settings.

With specific regard to post-secondary institutions, the Q&A emphasizes that students with disabilities must continue to receive appropriate accommodations even within virtual settings. Further, even as the pandemic necessitates the continued use of novel teaching environments, the responsibility of institutions to investigate, resolve and ameliorate instances of harassment and discrimination is not diminished, through some alteration of process may be permitted.

Regarding instances of harassment based upon race, color, or national origin, or where a hostile environment has been created, the Q&A compels institutions to promptly undertake affirmative action to end the disruptive circumstances and address their effects. (OCR Q&A, pp 14-15). In regards to instances of potential gender discrimination falling under Title IX, institutions must offer accessible means of reporting, support to claimants, and prompt hearings. While noting that amendments to Title IX regulations adopted in 2020 continue in effect during the pandemic, the Q&A notes that some limited delays in process may be allowed for “good cause,” though any such delays must be balanced against interests of fairness to all parties. (OCR Q&A, p. 21) Further, the Q&A cautions that institutions must consider the privacy interests of parties when adopting electronic means for conducting hearings and investigations. (OCR Q&A, p. 22)

While the responsibilities of institutions to appropriately address concerns related to disabilities, harassment, and discrimination have not been diminished by the pandemic, the processes used to address these matters may have become even more complex.