More Colleges and Universities Are Using an “Informal Process” In Handling Sexual Assault Allegations: The Pros and Cons

In past years, college students wishing to report sexual assault had two primary options: go to the police or file a formal complaint with the applicable department of their school’s administration. Upon filing a complaint, students would then have to go through an in-depth investigation process and often a formal hearing to resolve the matter. The outcome of such proceedings can have ongoing repercussions for both parties – both positive and negative.

With the new guidance released by Education Secretary Betsy DeVos last fall, schools have broader discretion in using a third option for complainants – to have the matter settled through an informal process. This can include mediation or similar procedures set by the school policies, and applies even to serious nonconsensual sex and rape claims. It should be no surprise that there are both proponents and critics of handling Title IX claims informally. Some of the potential pros and cons of an informal claim resolution process are presented below.

Possible Benefits of an Informal Option

Some schools assert that having an informal option provides many benefits for all parties involved. First, there is usually no lengthy investigation delving into the personal details of what happened or didn’t happen. There will also be no disciplinary action taken – instead, the parties have the opportunity to come to a private arrangement, which may include a no-contact agreement. According to Yale University, which offers an informal complaint option, the focus is on educating and counseling the parties, not on discipline.

Informal proceedings are also confidential, so names and details of the private agreement may not be released and nothing will go on anyone’s record. Confidentiality and anonymity can protect both parties from retaliation and harassment on campus. Yale representatives have stated that many students would likely be too hesitant to make a complaint if they didn’t have the option of confidentiality.

Schools claim that the informal option primarily benefits the complainant; however, it can also work to protect the rights of respondents. Many groups claim that respondents in Title IX cases have been treated unfairly and discriminated against simply because they were accused and were (mostly) males. Such discrimination can violate the respondent’s own Title IX rights and confidential mediation or another informal process can prevent that.

Possible Downfalls of Informal Proceedings

Many sexual assault survivor and women’s rights advocacy groups are worried that an informal process serves to shield respondents from disciplinary action and lasting consequences. This is particularly the case in complaints involving star athletes, as they will remain anonymous and their tenure at the school and participation in sports will not be affected. Respondents who may have, in fact, committed sexual misconduct will return to life as usual on campus with no one but a select few knowing what actually happened.

While schools often claim that an informal proceeding is in the complainant’s best interests and that a complainant must consent to such a proceeding, some critics suggest it is a way to intimidate survivors and offer solutions that truly do not protect victims of sexual assault and other students. Either way, many schools have already headed this route and utilize mediation and an informal process whenever possible. Students should always carefully consider the options available at their school when filing a complaint.

All parties are entitled to have their rights upheld throughout the Title IX complaint process – whether formal or informal. No discrimination or retaliation should be exercised against either the complainant or the respondent and due process rights should be protected when applicable. When taking the informal route, schools should ensure that the resolution provides for the health and safety of all parties involved.

If you need help with a Title IX matter, please contact the experienced Title IX attorneys at Nesenoff & Miltenberg, LLP. Our attorneys are experienced in handling Title IX claims through both formal and informal proceedings. Call the office at 212-736-4500 or contact us online to discuss your situation today.