When Should Your Title IX Advisor Recommend an Informal Resolution Process?
| | Title IX, Title IX: Procedure
The regulations implementing Title IX provisions on college campuses allow for the resolution of Title IX complaints through an informal resolution process, so long as certain requirements are met. If you have filed a complaint or are responding to a complaint, it is logical to wonder whether an informal resolution would be advantageous in your situation.
Every case is unique, and before making a decision, it is important to review all the ramifications with an advisor who is extremely familiar with the realities of Title IX disciplinary proceedings as well as critical student rights issues. A consultation with an experienced Title IX attorney would provide the best means to thoroughly evaluate your options. However, here are some helpful factors advisors and students should consider when assessing the benefits of informal resolution.
What Does the Informal Process Look Like at Your School?
Although colleges and universities must adhere to Title IX regulations when establishing their informal resolution processes, they still have considerable latitude in deciding how to hold those proceedings. Before you can know whether informal resolution is a good choice, you need to know how the process plays out at your particular institution. If your advisor is affiliated with the school and has participated in informal resolution processes before, hopefully, they can explain the process to you.
If your advisor is not affiliated with the institution or has not assisted in many Title IX informal processes, then both you and your advisor would do well to learn as much as you can about the processes held at the school. Are they consistent, or does the process vary from one proceeding to the next? What evidence is allowed, and is there an opportunity to challenge the veracity of that evidence? Is there an opportunity to respond to allegations? If a formal investigation is held in the future, is participation in the informal resolution used toward a finding of responsibility?
Get as many details as possible about the informal process at your school. You can start with the definition in the school’s code of conduct, but to make an informed decision, both you and your advisor need to dig deep to gather more information.
Does the Process Comply with Title IX Regulations?
The requirements for an informal resolution process are set out in 34 C.F.R. 106.45(b)(9). It is in your best interests to ensure that the process at your school complies with those regulations. Your college or university must:
- Obtain written consent from both the complainant and the respondent. The consent to informal resolution must be voluntary on the part of all parties.
- Not require any party to waive their right to investigation or formal adjudication
- Not offer the option of an informal resolution unless a formal Title IX complaint has been filed
- Not offer the option of an informal resolution in a case where there are allegations that an employee has sexually harassed a student
- Provide a written notice disclosing particular regulatory language
Even if these requirements are described in the student handbook, it is important to ensure that the educational institution is actually following the prescribed procedures. If not, the school’s handling of a case through the informal resolution process could be challenged in court.
How Does the Informal Process Compare with a Formal Investigation and Adjudication?
To determine whether you would be better served through an informal resolution of a Title IX complaint, you need to compare the formal and informal processes and weigh the advantages and disadvantages of your unique position. Guidance from an experienced Title IX advocate would be helpful in this evaluation. Remember that you are not comparing a formal and informal complaint process, but rather, the formal and informal resolution of a formal complaint, which is different.
In a formal resolution process, decisions as to a finding of responsibility and any resulting penalties will be made by a decisionmaker at the school. By contrast, an informal resolution process gives the parties involved the option to develop their own solutions to the issues raised in the complaint. This provides for more control—potentially—and more flexibility. Parties do not usually need to speak directly to each other in either process, but communication may be made through third parties.
The outcome of an informal process may still result in a finding of responsibility and imposition of a penalty, but the complainant would be voluntarily accepting this outcome instead of having it handed down by a third party.
When is Informal Resolution Usually to Your Advantage?
In situations where delays and uncertainty create particular problems for a complainant or a respondent, the informal resolution process can provide a faster outcome. The informal process can also allow considerable flexibility and creativity in developing a resolution that meets the needs of both parties.
For instance, a respondent may agree to take actions that satisfy the concerns of the complainant without establishing a finding of responsibility that would leave a black mark on the respondent’s record, potentially interfering with opportunities for years to come. There is evidence to suggest that when a respondent agrees to accept a remedy voluntarily instead of having a penalty imposed by a third party, it can result in beneficial changes in behavior with long-term positive benefits.
Generally, the informal resolution process may be halted by either party at any time before the Informal Resolution is finalized, which can provide a sort of safety net if parties to an informal proceeding believe their concerns are not being given fair consideration or they need greater due process protection.
Work with an Advisor Who Understands Formal and Informal Resolution in Title IX Proceedings
To make an informed recommendation regarding the use of an informal resolution process, an advisor needs to be thoroughly familiar with the student and their goals and preferences, the differences in the processes as held at the particular educational institution, and Title IX requirements. Choosing the right advisor is key. While the familiarity of working with a supportive family or staff member may provide some comfort, you can protect yourself better by working with a professional trained in pursuing and defending against Title IX complaints.
At Nesenoff & Miltenberg, LLP, we focus our practice on protecting the rights of students in all situations, particularly where there is the potential for a Title IX violation. We combine tenacious representation with in-depth knowledge in a way few firms can match. For a confidential consultation to discuss the resolution of a complaint, contact our team today.