In our recent training on Title IX Foundations and Investigation Techniques here at Franczek P.C., we discussed that schools often use informal processes for certain types of sex discrimination complaints. Whether some concerns are less serious (verbal bullying versus sexual assault, for instance) or there are perceived benefits of having administrators familiar with a particular population of students conduct investigations (e.g., deans of students), there certainly are many conceivably appropriate reasons for having different paths for different types of Title IX complaints. From my experience investigating Title IX complaints at OCR, schools frequently do this and doing so does not always create a Title IX concern. But a recent court decision from the higher education context provides some important reminders for schools at all levels of best practices for such informal paths to Title IX compliance.

The Decision

In Doe v. Michigan State University, a federal trial court judge in the Western District of Michigan denied a motion to dismiss from the university, allowing the case to proceed toward trial. The case arose after an MSU student complained to her school that members of the school basketball team had drugged and raped her off campus.

According to the complaining student, when she informed the university counselor who conducted her intake interview that the alleged perpetrators were members of the basketball team, the counselor’s demeanor “changed drastically” and she called in another administrator. The new administrator reportedly told the complainant that she should either file a police report or deal with the aftermath of the rapes on her own. He also reportedly warned the complainant that she would be subject to media scrutiny and would face an uphill battle if she reported the rape to the police. The staff allegedly told her many female students had reported similar things about “guys with big names,” that it was very “traumatic” for them, and that she might be better dealing with the assault on her own.

The complainant said she was not told about the right to file a formal Title IX complaint with the University’s Office of Institutional Equity. The complainant also identified a number of female students who she alleged were also sexually assaulted in similar ways. She claimed that those complaints were dealt with informally by coaches rather than being processed through the school’s formal Title IX processes.

In her federal lawsuit, the complainant said that by handling prior incidents of sexual assaults by male athletes differently than complaints against other students, MSU created a culture of permissible sexual assault by the basketball team which, by extension, led to her assault. The court found that she had sufficiently alleged such a claim, allowing her complaint to avoid a motion to dismiss and proceed to often-expensive discovery.

The court described the separate process that was alleged to have been used for basketball players as, including:

• Involvement of different personnel and offices in investigations,
• Language aimed at dissuading complainants from pursuing complaints,
• Attempts to conceal the names of prominent male athletes when mentioned in police reports, and
• Informally handling complaints directly with the accused student-athletes without a formal investigation.

According to the Court:

Plaintiff has sufficiently pleaded that MSU allowed reports of sexual assault to be handled “off-line” by the Athletic Department and outside the normal channels of Title IX investigations.

The court held that the complaining student sufficiently alleged that MSU maintained official policies that left her and other female students vulnerable to sexual assault by male athletes.

Key Takeaways for School Leaders

The court’s decision in this case does not mean the complainant’s allegations are true. But it shows that certain informal processes for handling Title IX complaints can, if true, constitute a Title IX violation. This is an issue that I saw more often than you might expect while at OCR. In most of the cases, informal processes were used for incidents that were seen as “less serious” and that could be handled at a more informal level than the formal Title IX process.

As we explained to participants at our recent training, Title IX does not specifically require schools to use any particular process for Title IX investigations. If the process used is fair, comports with due process, is implemented evenhandedly, is adequately publicized to the community, and complies with other regulatory requirements, it will likely pass muster under Title IX if implemented with fidelity, even if it involves different paths for different types of matters. Nonetheless, to remove the risk of the types of complaints alleged in this case, schools may require that any complaint that alleges conduct that, if true, would constitute sex discrimination, including harassment, assault, or violence, be addressed through the school’s formal Title IX complaint policies.

If an informal approach is used, it is key that published policies and procedures of the institution reflect the informal processes being used. It is a good idea to regularly audit your school’s practices to confirm that the policies and procedures provide sufficient notice of the actual policies used, including information about what, and when, informal policies may be used. Conservatively, schools may also wish to notify complainants for whom a more informal process is being used that there is a more formal process available if they wish to use it. Documenting this communication in writing will help avoid later legal challenges.

If you would like more inform

ation about this issue or how to conduct an audit of your practices, contact any member of our team.