I’ve been running around the country for the past couple of months, speaking at many spring conferences for school law. From NSBA’s Council of School Attorneys to LRP’s National Institute to the American Association of School Personnel Administrators DEI Summit, I’ve been thrilled to talk with many administrators and school lawyers about Title IX, First Amendment, and DEI related issues. I’ve also been doing tons of training (including our incredibly well-received Advanced Title IX Training and “Train the Trainer,” which we offered both virtually and in person in Houston, Texas).

The most frequent Title IX questions I have been asked during this whirlwind tour relate to Title IX jurisdiction. When evaluating the jurisdiction of sex-based misconduct reports, when does the requirement to notify the alleged victim of the Title IX process kick in? What happens if there is jurisdiction over a report, but the alleged victim does not want to file a formal complaint? When can a school investigate under a non-Title IX policy or procedure, such as the student code of conduct?

These are some of the most fundamental questions that arise during the Title IX intake process, which is the period after a report of sex-based misconduct is made but before the Title IX Coordinator or their designee determines that Title IX applies. Although these cases, like most things in the Title IX world, are very fact-specific, I can offer a top 5 do’s and don’ts you should keep in mind. I will provide the dos and don’ts in this blog series. We will discuss the first don’t today: “Don’t jump the Title IX gun.”

1. Don’t jump the Title IX gun.

When the 2020 Title IX rules came out, we were all understandably inclined to over-apply the new rules to complaints of sex-based misconduct. We weren’t sure how far the new rules would reach, and we didn’t want to mistakenly fail to offer Title IX protections to a report of conduct that OCR would later find covered by Title IX.

However, we have learned quite a bit about these rules, and we should be more conservative in our approach. It is imperative to do a thorough intake process and to only apply the Title IX process to those matters that meet the threshold questions for Title IX: Is the conduct (1) Title IX “sexual harassment” (the Title IX “Big 5” or “hostile environment”) (2) in an education program or activity of the educational institution; and (3) against a person in the U.S.

What if you don’t yet have enough information to know what is covered? It happens a lot. The reported conduct is “inappropriate touching.” Well, what does that mean? It could include conduct that meets the definition of Title IX “sexual harassment,” but it could also be minor touching that does not. You should hold an intake meeting to ask for more information about what is being alleged.

Should you notify the complainant of the Title IX policy and formal complaint process during the intake meeting? There is no clear answer, so your decision will be based on the facts of the case and your institution’s culture and risk tolerance. The Title IX rules only require you to offer supportive measures and notify a party of the Title IX formal complaint process and their right to file a formal complaint if the conduct reported is Title IX “sexual harassment” in an education program or activity and against a person in the U.S. If you have not yet received enough information to categorize a report as such, you are not required to notify the alleged victim of the right to file a formal complaint.

Why might you want to notify an alleged victim of the right to file a formal complaint even if you aren’t aware of the full extent of the allegations? It’s undoubtedly the most risk-averse approach in that it protects you from later being found to have failed to comply with the rules if OCR categorizes the conduct as being covered by Title IX. For example, you all recall that in K-12 schools, notice to any K-12 employee of the educational entity is actual knowledge by the educational institution. Imagine that a student reports sexual harassment in great detail to a teacher who fails to report the conduct to the Title IX Coordinator. Then, the student reports directly to the Title IX Coordinator but does not provide sufficient information to determine that the conduct falls under Title IX. Although the Title IX Coordinator does not have notice at that point of conduct that falls under Title IX, the teacher does, and that knowledge is attributed to the educational institution. If the Title IX Coordinator provides the student supportive measures, notice of the formal complaint process, and notice of the right to file a formal complaint during the intake meeting, the District cannot later be found in violation of Title IX for failing to provide that information based on the teacher’s knowledge before the meeting. Particularly if the alleged victim (or parents of a minor victim) seem litigious, I might recommend following providing notifying the party of the right to file a formal complaint even if it’s unclear that the alleged conduct falls under Title IX.

Why might you not want to notify an alleged victim of the right to file a formal complaint if you aren’t aware of the full extent of the allegation? People want what they can’t have. Suppose you tell an alleged victim that there is a Title IX process and allow them to file a complaint, only to dismiss that complaint after learning all the alleged facts and deciding that Title IX does not apply. The alleged victim may feel they are being denied a benefit when you offer them Title IX and then take it away, even if they never deserved to use it. When parties feel they are being denied, it can lead to hostile interactions during the grievance process and complaints. For that reason, I generally would not recommend that you steer an alleged victim to the Title IX process without taking a little time to learn the whole nature of the reported misconduct.

How do you avoid telling the alleged victim about the process? In short, you need to use a process that focuses on intake if a report is made and you do not fully understand the alleged conduct. If you are using the Thompson & Horton 2022 Title IX Guidebook, you already have step-by-step instructions on handling intake. If you need help with such a process, please reach out to me at jwernz@thlaw.com for more information.