An Important Opportunity for Respondents in Title IX Investigations

Often overlooked by both Title IX Coordinators and advisors for respondents, Informal Resolution is a valuable part of most schools’ Title IX process and should be requested and pursued at the earliest possible time.

Being charged with a Title IX or Clery Act/VAWA violation is a high stakes endeavor – it comes with the stress, anxiety, time and expense associated with a full investigation, as well as the repercussions that might attend to a finding of responsibility (i.e. suspension or expulsion, transcript notations, and the interruption or deferment of academic or career plans). These topics have all been discussed in earlier blog posts. Informal Resolution is a way out of the investigation/adjudication and the risks that attend it.

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Although at one time the Department of Education’s Office for Civil Rights (OCR), pursuant to guidance documents, disfavored informal resolution for certain species of Title IX and Clery Act/VAWA violations, this all changed in the OCR’s September 2017 Q&A on Campus Sexual Misconduct:

“If all parties voluntarily agree to participate in an informal resolution that does not involve a full investigation and adjudication after receiving a full disclosure of the allegations and their options for formal resolution and if a school determines that the particular Title IX complaint is appropriate for such a process, the school may facilitate an informal resolution, including mediation, to assist the parties in reaching voluntary resolution.” (id. at Question 7).

What is Informal Resolution as Defined in a Typical University’s Title IX Sexual Misconduct Policy?

It is a process designed to assist the parties in reaching a mutually agreeable resolution that emphasizes education and training in the place of investigation and adjudication. It typically requires the willing participation of the complainant, the respondent, and the university, and can be ended by any party at any time for any reason. If it is accepted and implemented it is usually completed in a shortened time frame (often within 30 days) and, most importantly, if successfully completed, it concludes the disciplinary process and closes the matter. If it is not successfully completed, the university restarts the investigation/adjudication.

Obviously, it is a great option for the respondent because it removes the substantial risk associated with an investigation process. It is also far less stressful for the alleged victim, who is usually able to participate in the informal resolution process without confronting the respondent and answering the multitude of questions from any number of parties associated with the investigation.

For whatever reason, this option often does not seem to be favored by many Title IX Coordinators. Most do not even mention it as an option to the respondent during the initial notification meeting when the complaint and the university’s Title IX Sexual Misconduct Policies are explained.

Accordingly, it is critical for the respondent and his or her advisor to not only familiarize themselves with the Informal Resolution policy of their school but to specifically request its consideration and implementation, in writing, from the university’s Title IX Coordinator. This request should be made at the earliest possible time. If granted, Informal Resolution can be a game-changer.

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