What is the Informal Process for Resolving a Title IX Complaint?
| | Title IX, Title IX: Procedure
When a student files a Title IX complaint on a college or university campus, sometimes the complaint is resolved through an informal process, while other times, the resolution requires more formal proceedings with an investigation and hearing. The use of informal proceedings is sometimes restricted depending on the current regulatory scheme in effect, which has been changing frequently in recent years. The institutions themselves also have a certain amount of latitude in deciding whether and when an informal process can be used.
Before a complainant or respondent can prepare for an informal resolution process, they need to have an idea of what that process involves and how it differs from the formal process. An experienced Title IX attorney can analyze the process applicable in a particular case, but here are some basic considerations to bear in mind with regard to the informal process for resolving Title IX complaints.
Informal Resolution vs. Formal Process
In some respects, it is easiest to understand informal resolution by describing what it is not. When a Title IX complaint is resolved through an informal process, there is no hearing where both sides present their arguments, and a third party decides whether the respondent is responsible for a violation. Instead, the process operates more like mediation does in legal proceedings. Although the parties may not necessarily communicate directly with each other, during informal resolution, they are usually supposed to work together to develop their own outcome rather than leaving the outcome to a decision-maker.
This requires a level of communication and cooperation that is intimidating to some and that is unlikely to work when both parties are not committed to at least attempting to reach a resolution. An informal resolution focuses on solutions, and it will require the respondent to acknowledge to some extent that they have caused harm and need to take responsibility for their actions.
In many instances, the informal process is viewed as merely a precursor to a formal resolution process, but with the right facilitator, both parties can walk away from an informal resolution process feeling satisfied that their concerns have been addressed and the outcome is appropriate. For a Title IX complaint to be thoroughly resolved through an informal process, the parties must agree to a written statement announcing that the parties have voluntarily resolved the issues and explaining the actions that will be taken as a result.
Informal Resolution is Voluntary Under Title IX
Under the present regulatory scheme, schools cannot require complainants or respondents to use an information resolution process if they would rather use the formal process. Use of the informal process is voluntary, and parties can still request to have the issues resolved through the formal process even if they have started to work with an informal process.
Many schools strongly encourage the use of a voluntary informal proceeding in an attempt to resolve issues without the need for a hearing or formal proceedings much in the way that some courts require litigants to engage in mediation before their case can be heard by the court.
Schools Can Establish Their Own Methods for Informal Resolution
It is not possible to really describe the “typical” informal resolution process because each college and university has the ability to set up their own procedures. Many schools allow flexibility in structuring informal resolutions and will allow a complainant to remain anonymous.
Models for a school’s informal resolution process include:
- In-person mediation where a facilitator guides parties toward resolution. The proceeding may be narrow in focus and emphasize remedies rather than determining specifics of what happened
- Mediation where the mediator meets with one party at a time and relays messages between parties
- Statement discussions where the complainant prepares a statement and the respondent prepares a written response
- A conference where parties discuss what happened and what remedies may be needed (sometimes referred to as a restorative justice conference)
School policies may or may not allow for investigation as part of the informal resolution process. Some schools provide an administrative adjudication process that shares elements of both formal and informal processes. It is important to review the policies of the institution carefully to determine what informal resolution can and cannot involve before determining whether you want to resolve issues through this process.
When is Informal Resolution Used?
At many schools, either a complainant or respondent may ask the Title IX Coordinator to use the informal process, and if the Coordinator agrees that the process is appropriate as a means to resolve the issues involved, then the Coordinator issues an invitation to the other party to participate in the informal process. Other schools have the Coordinator invite the parties to use an informal process when the Coordinator deems it suitable. In many cases, the complainant must identify the outcome they hope to achieve before the Coordinator decides whether informal resolution should be allowed.
Generally, informal resolution is most often used when the outcome sought by the complainant does not lead to long-term negative consequences for the respondent. This might be an apology in writing, a no-contact order, or a requirement that the respondent undergo training or complete a research assignment.
When a respondent is at risk of being expelled, suspended or penalized in other serious ways, such as when a complaint involves allegations of sexual assault, then the informal process is generally not considered appropriate and may not be allowed. For instance, in cases where a student alleges sexual harassment on the part of a faculty or staff member, Title IX regulations do not allow for informal resolution of the complaint.
An Experienced Attorney Can Assist with Informal Resolution as Well as Formal Processes
Many students and their parents mistakenly believe that if a Title IX complaint is handled through an informal process, they don’t need to worry about defense. However, any negative marks on a student’s record can prevent them from taking advantage of future opportunities in education and employment. Moreover, the damage to a student’s reputation after a Title IX complaint has been filed against them can stretch far into the future, even when resolved informally. A respondent may want to agree to a no-contact order, for instance, without realizing it can make them appear to have done something wrong or dangerous. An experienced legal advisor could propose alternative remedies that do not come with the same negative implications.
At Nesenoff & Miltenberg, our Title IX attorneys work to protect those throughout the country who are filing and responding to Title IX complaints to ensure that their voices are heard and the outcome of the proceedings fairly reflects the situation. For a confidential consultation to discuss a Title IX or other disciplinary matter on campus, contact our team today.