What are Title IX Cross-Complaints?
Although not required by law to use their school’s grievance procedures before filing a Title IX complaint with the Department of Education’s Office for Civil Rights (OCR), many students, employees, and faculty choose to do so. It is important to note, however, that claimants who choose this route may also face cross-complaints issued by the accused, as most schools give respondents a certain period of time in which to respond to the complaint or file a cross-complaint containing their own allegations. The filing of a cross-complaint can have significant repercussions for the original filer, so if you recently submitted a Title IX grievance with your school or believe that you have grounds to do so, you should consider consulting an experienced Title IX sexual assault lawyer who can help advise you throughout the process.
Filing a Complaint
Title IX protects students, staff, and faculty from discrimination based on sex, sexual harassment, and sexual assault. The specific procedures used for investigating claims, however, varies depending on the educational institution in question. Federal law does require that covered schools hire a coordinator who will be tasked with:
- Monitoring the school’s compliance with Title IX and other federal law;
- Investigating and responding to accusations of sexual harassment or other Title IX violations; and
- Making accommodations for those who have filed complaints.
The exact reporting and investigative procedures that a Title IX coordinator uses, however, is largely left up to the administrators, who are not required by law to take any specific action after receiving a complaint. While it is true that covered schools have a significant amount of discretion when establishing reporting procedures, most institute procedures wherein a complaining party first files a claim with a Title IX coordinator or his or her designee, at which point, the school will conduct an initial assessment of the report. If the initial assessment reveals that a claim is legitimate, the school will conduct a full investigation into all of the allegations.
Filing or Responding to a Cross-Complaint
Upon initiating a full investigation, the respondent, or person against whom an initial Title IX claim is being filed, may be given the opportunity to prepare a response to the accusations or if applicable, to assert a cross-complaint, which contain separate allegations, usually made against the original complainant.
Although cross-claims are often filed in an attempt to intimidate or further harass a complainant into dropping his or her allegations, a number of court rulings have confirmed that this does not absolve covered schools of the responsibility to ensure appropriate and equal access for students, faculty, and staff to file cross-complaints about the allegations in question. Instead, schools must make a reasonable effort to investigate and adjudicate claims and cross-complaints equally, either in a consolidated manner or on a parallel course depending on the timing of the filings and extent of the allegations.
It is also important to note that complainants usually have the right to respond to counterclaims filed by respondents, although they may be given a deadline for doing so. Finally, most universities and colleges also have policies in place by which those who file cross-complaints in bad faith, meaning that they lack any reasonable basis and are intended to embarrass, harass, or delay the other party, can be found to be acting in retaliation against the reporting party and to have committed a violation of Title IX. Potential penalties for retaliatory actions include suspension or even expulsion.
Ultimately, guidance from your attorney and the specific procedures set forth by your school’s policies will generally determine the best approach to filing or responding to a cross-complaint. However, here are some general factors to keep in mind.
Timing is Important
In many cases, it can be most effective to file a cross-complaint during the intake period. This is during the time after misconduct has been reported but before the school’s Title IX Coordinator (or their designee) has determined that Title IX applies to the case. During the intake period, the evidence should not yet be under consideration. That means that cross-complaints filed during this period should not be prejudiced by opinions based on early findings.
It is important when filing a cross-complaint to avoid the appearance that the complaint is being brought to deflect attention from the original allegation or to harass a complainant. The longer you wait to file a cross-complaint, the more it looks like a tactic rather than a report of a genuine grievance.
Even if it is suspected that a cross-complaint was filed in retaliation, schools are obligated to investigate and rule fairly on the cross-complaint. However, when the new rules take effect, the increased emphasis on protection from retaliation could effectively decrease the attention schools give to cross-complaints that could be seen as retaliatory in nature.
Follow Formalities When Filing a Cross-Complaint
When you have genuine grounds for a cross-complaint, you want your assertions to receive serious consideration. You want officials to provide the same thorough analysis that they expect to provide for the original complaint. That means your assertions should be presented with the same formalities as the original complaint.
Those formalities are likely to differ depending on where the initial complaint was filed. The new Title IX regulations may add or remove requirements regarding formal complaints, so it will be important to analyze the effect of the new rules on any cross-complaints filed after their release.
Responding to a Cross-Complaint
Even when a cross-complaint seems frivolous or vindictive, it is essential to take a serious approach when responding to it. The school will also be required to treat allegations seriously. That means it is important to analyze the components of the cross-complaint to consider all the points raised.
To effectively defeat a cross-complaint, you should address and refute or explain each individual point raised in the cross-complaint. Don’t make assumptions and don’t jump to conclusions. Explain each step in the logic process to reach a conclusion.
The procedures involved will dictate whether you will have the opportunity to file a formal response to the cross-complaint or whether some other type of response is allowed instead. Working with a legal advisor with experience handling cross-complaints can be invaluable here. Your attorney can help you formulate and file the correct written response and coach you on how to provide succinct answers when you are questioned about allegations raised in the cross-complaint.
It will be particularly important to pay attention to deadlines. You may have only a small number of days to respond to the cross-complaint. Missing a deadline could limit your ability to mount an appropriate defense.
Conducting a Title IX Investigation into a Cross-Complaint
Once a respondent has filed a cross-complaint and the original claimant has been given the opportunity to respond to the accusations, a Title IX school will conduct an investigation, which usually involves a number of steps, including:
- Notification of the investigation, which takes the form of a written communication that contains information about the investigation process, including the allegations, the rights of the parties, a warning regarding retaliation, and the terms of the provisions of the school’s policies that were violated;
- Information and evidence gathering, including documents, electronic materials, such as social media posts, phone logs, emails, and texts, as well as video and audio recordings and interviews with both parties and any witnesses;
- Information review, where the complainant and the respondent are given the opportunity to review and respond to the evidence gathered by the investigator;
- Report writing analysis and the determination of facts, which involves the investigator reviewing the information to determine whether the preponderance of the evidence standard was met, meaning that it was more likely than not that the accusations occurred, and then writing a formal investigation report that includes a list of the documents, materials, and evidence gathered and reviewed by the investigator; and
- Notification of the outcome, which is sent in writing to both the complainant and the respondent and includes information about the outcome of the investigation and is also accompanied by a redacted version of the investigation report.
Finally, the notice of outcome letter that contains a determination related to the complainant’s allegations and any accusations leveled by the respondent in a cross-complaint will also include information regarding the next steps in the Title IX complaint process.
Discuss Your Case with a Title IX Sexual Assault Lawyer Today
If you were the victim of sexual assault, harassment, or discrimination on your campus or at a school sponsored event, you may be unsure of your next steps. Fortunately, students do have rights under federal law, making it especially important for complainants to speak with an experienced Title IX lawyer who can inform them of their options and guide them through the claim filing and investigation process. To learn more about how an experienced Title IX sexual assault lawyer could help you with your own claim, please contact Duffy Law today. We can be reached at our office by calling (203)946-2000 or by sending a message to email@example.com. We also know that you have busy schedules and so make ourselves available on a 24/7 basis via phone or online message.