First, Some History
Under OCR guidance currently in effect, educational institutions are required to investigate any reports of sexual harassment, whether raised by an alleged victim, an employee—including the Title IX Coordinator—or any other third party. This includes situations in which a school knows or, with reasonable care, should have known, about sexual harassment, even if no written complaint has been filed and even if no complainant has been identified. Indeed, under this regime, an educational institution must open an investigation even if a complainant explicitly requests confidentiality if the alleged conduct would, if true, in any way impact the school’s responsibility to provide “a safe and nondiscriminatory environment for all students” in the school community. According to OCR guidance, the factors to be considered in the analysis of whether an investigation is required include:
the seriousness of the alleged harassment, the age of the student harassed, whether there have been other complaints or reports of harassment against the alleged harasser, and the rights of the accused individual to receive information about the accuser and the allegations if a formal proceeding with sanctions may result.
In practice, this broad standard requires schools, colleges, and universities to investigate matters without a cooperating complainant in almost any case in which repeated or severe sexual misconduct is alleged.
The New Standard
Under Section 106.44(b) of the final Title IX rules, a school is only required to investigate and adjudicate a Title IX sexual harassment matter if there is a written, formal complaint on file. Section 106.30 of the rules defines a “formal complaint” as a document either “filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.” The rules note that where a Title IX Coordinator signs a formal complaint, the Coordinator does not become a complainant or other party to the dispute, but the rules provide little further as far as guidance on when a Title IX Coordinator might exercise the authority to sign a complaint.
Notably, the Title IX rules initially proposed in November 2018 would have required a Title IX Coordinator to file a formal complaint upon receiving multiple reports against the same respondent. That provision was removed. The Department of Education explained in the commentary to the new rules that the goal in removing the provision was to “reduce the likelihood that a complainant’s desire not to file a formal complaint will be overridden by a Title IX Coordinator’s decision to sign a formal complaint.”
The commentary also refers to the many legitimate reasons why a complainant may not want a school to move forward with a formal investigation of allegations and says it “endeavors through these final regulations to respect a complainant’s autonomy” with respect to how a school responds to a report. Along those same lines, the rules require the Title IX Coordinator to meet with a complainant to discuss the complainant’s wishes regarding an investigation before making any decision about whether to proceed. According to the commentary to the rules, this process strikes the right balance between protecting campus safety, respecting “survivor autonomy and safety,” and effectively using institutional resources. If the Title IX Coordinator does commence a formal complaint and a complainant is known, the Coordinator must provide the complainant all notices and opportunities to respond to evidence required by the rules, even if the complainant is not actively involved.
The rules warn that a Title IX Coordinator’s decision to sign a complaint despite a complainant’s wishes that an investigation not proceed will be scrutinized by OCR for “deliberate indifference.” In other words, the Title IX Coordinator must not decide unreasonably in light of the known circumstances to sign a complaint—or to not sign a complaint—when a complaint is unknown or does not want to proceed. The rules also require a Title IX Coordinator to document the reasons why any response, including the decision to sign or not sign a formal complaint, was not deliberately indifferent. Together, the requirements and warnings in the commentary send a clear signal to Title IX Coordinators that there will need to be specific, clear circumstances justifying “signing” a complaint where there is not a willing complainant to support whatever choice is made.
Together, the requirements and warnings in the commentary send a clear signal to Title IX Coordinators that there will need to be specific, clear circumstances justifying “signing” a complaint where there is not a willing complainant to support whatever choice is made.
When Might Signing a Complaint Be Necessary?
What are the reasons that might justify a Title IX Coordinator signing a complaint under the new rules? Obviously, if there is a complainant willing and able to file a complaint, the Title IX Coordinator’s involvement will not be necessary. There may be cases in which a complainant is not willing or able, however. As noted above, there are many legitimate reasons why a complainant who is eligible to file a formal complaint may not want to. The increased procedural requirements for a Title IX case under the new rules, including live cross examination in higher education and written cross examination in K-12, could certainly dissuade a reasonable complainant from proceeding. Moreover, the rules require a complainant to be “participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed” at the time of filing a formal complaint. Conduct that occurred right before a student’s graduation involving a perpetrator who remains part of the campus community is one type of conduct that might require Title IX Coordinator involvement in light of that limitation. In some cases, misconduct is reported and the complainant cannot even be identified. A Title IX Coordinator should assess, in each of those circumstances, whether signing a formal complaint is authorized or required under the rules. This will be a case-by-case analysis; there are no shortcuts to this review under the new regulations.
What circumstances might justify Title IX Coordinators taking this step? Aside from stating that schools may not ignore or respond inadequately to sexual harassment of which the recipient has become aware and providing a few examples, the commentary does not flesh out this requirement much.
This will be a case-by-case analysis; there are no shortcuts to this review under the new regulations.
The specific examples cited in the commentary are few, and including situations in which:
- The institution has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority
- The institution wishes to investigate allegations in order to determine whether it has probable cause of employee sexual misconduct that affect the recipient’s ESSA obligations, and
- A Title IX Coordinator receives multiple reports of sexual harassment against the same respondent.
Even in these situations, the commentary to the rules makes clear that a response that is not deliberately indifferent or clearly unreasonable may require the recipient’s Title IX Coordinator to sign a formal complaint obligating the recipient to investigate in accordance with § 106.45. The commentary states that a Title IX Coordinator may consider a variety of factors, including a pattern of alleged conduct and the involvement of violence, weapons, and similar factors in a complainant’s allegations, in deciding whether to sign a formal complaint. At least some of the factors considered under earlier OCR guidance will also remain relevant, such as the seriousness of the alleged harassment, the age of the student harassed, and whether there have been other complaints or reports of harassment against the alleged harasser. The issue of whether the rights of the accused individual to receive information about the accuser and the allegations if a formal proceeding with sanctions may result is no longer an issue, as the new rules require notification of these types of details in every case involving a formal complaint, no matter how it is initiated. Because of this, and the rules warning that a school “should respect the complainant’s autonomy and wishes with respect to a formal complaint and grievance process to the extent possible,” this will be a delicate balance, indeed.
One factor that Title IX Coordinators should avoid in striking the balance? “Credibility.” In the commentary to the rules, the Department rejected a suggestion to require schools to open a formal complaint in certain cases in which a Title IX Coordinator deems a complainant’s report credible but the complainant does not wish to proceed. In the commentary, the Department highlighted its focus in the new rules on ensuring that no determination on the merits of a claim is made until after the complaint process has been completed. Deeming a report of sexual harassment “credible” at such an early stage in the process “would defeat the goal of following a grievance process to reach reliable outcomes.” This is an important warning for institutions and their administrators to keep in mind.
How Will This Standard Play Out?
As we noted in a previous post discussing nine essential questions under the new Title IX, the situations in which a Title IX Coordinator will need to sign a formal complaint to commence the formal complaint processes under the new rules are not clearly fleshed out in the regulations. We will continue to recommend that Title IX Coordinators take seriously and work closely with counsel knowledgeable about the nuances of the new rules when a complainant is not willing or able to file a formal complaint.
Walking this line carefully will be particularly important because, no matter what the Title IX Coordinator decides, his or her decision will be subject to scrutiny by OCR under the rules’ deliberate indifference standard. Remember, too, that even in the absence of a formal complaint being filed, a recipient has authority under the new rules to order emergency removal of a respondent where the situation arising from sexual harassment allegations presents a risk to the physical health or safety of any person. The rules also do not prevent schools, Title IX Coordinators, or complainants from contacting law enforcement to address imminent safety concerns, even if they cannot be addressed under a formal Title IX complaint.
Walking this line carefully will be particularly important because, no matter what the Title IX Coordinator decides, his or her decision will be subject to scrutiny by OCR under the rules’ deliberate indifference standard.
These options will be important tools for institutions in the face of what we assume will be a reduced number of formal investigations under the new rules when a complainant does not file a complaint.