In another blog post today, I talk about the many takeaways Title IX administrators and team members can glean about Title IX cases from the Johnny Depp/Amber Heard defamation trial. One of those takeaways deserves a closer look; it is the second tip for the Title IX jurisdiction analysis in our blog series addressing some of the most fundamental questions that arise during the Title IX sexual harassment intake process. Here’s what you need to know about cross-claims by respondents.

2. Take Respondent Claims Seriously

The first blog post in our intake series was Tip #1: Don’t Jump the Title IX Gun. This second post addresses something a bit more nuanced but no less critical: Taking cross-claims and retaliation reports by respondents seriously.

You may be thinking, “Wait, why are we talking about the respondent when discussing intake? Doesn’t intake involve the complainant?” As with many things Title IX, it’s not that simple.

As a reminder, intake is the period after a report of sex-based misconduct is made but before the Title IX Coordinator or designee determines that Title IX applies. In Title IX parlance, the “complainant” is the alleged victim of sexual harassment. The “respondent” is the alleged perpetrator of sexual harassment. In most cases, you’ll evaluate a relatively straightforward complaint by one complainant against one respondent during intake. For example, the complainant may report that the respondent, the complainant’s intimate partner, engaged in dating violence against the complainant on your educational institution’s property.

But in some cases, things get a bit more complicated. What happens if the respondent (alleged perpetrator) in the first case turns around and reports misconduct by the original complainant? For example, imagine that the respondent in your case responds to the complaint by saying that they were the victim of dating violence, not the original complainant. That would be a “cross-complaint” or “cross-claim.” Or the original respondent might report that the original complainant has been spreading rumors about them within the educational community that severely impact their ability to participate in the school’s education program or activity. That could be a retaliation complaint or claim.

Now, you have two reports. Your original respondent is a complainant for a new, second report. What do you do? The short answer is that Title IX Coordinators and designees should take such complaints seriously and analyze them using the same intake skills they will use for any other case.

Take cross-complaints seriously, or beware of the consequences. When I worked at OCR, I had a complaint in which a student (let’s call him Student A) was charged with physical aggression toward another student (Student B). In response, Student A claimed that he had been harassed based on sex, which led to his physical outburst. The educational institution believed Student A was just deflecting attention away from the report of misconduct against him. They did not directly interview any individuals specifically regarding the allegations. Indeed, they did not even ask Student A about any potential witnesses or evidence regarding the alleged harassment against him. Guess what? That complaint ended in a resolution agreement, including monitoring by OCR regarding the implementation of the agreement.

As we explained in our blog on the Depp/Heard trial:

Unless you’re looking for an OCR complaint or worse, you should carefully consider any cross-complaint and address any complaint that, if proved, would alleged sexual harassment under Title IX in your education program or activity. The status of the “complainant” as a “respondent” in another case should not impact the evaluation of their complaint. Evaluate the complaint and process the complaint if there are sufficient allegations.

What if you think the cross-claim or retaliation complaint is simply an effort to harass the complainant? It’s true that in some cases, respondents file cross-complaints or retaliation claims against complainants to try to deflect attention from their alleged wrongdoing, intimidate or frighten the complainant, or further harass them. But the preamble to the 2020 Title IX rules is pretty clear that Title IX Coordinators and designees should not consider the evidence of a Title IX complaint (or lack thereof) during the intake stage; if a respondent alleges that they were subjected to conduct that, if proved, would be Title IX sexual harassment in an education program or activity and against a person in the United States, that triggers the Title IX process no matter how many complaints have been raised against them elsewhere.

That doesn’t mean you must ignore your gut if you genuinely believe that a cross-complaint is made in bad faith, intended to deflect from the original complaint, or intended to harass the original complainant. For example:

• Don’t consolidate. An educational institution can but is not required to consolidate cases in certain situations. If you fear bad faith or harassment, consider not consolidating the complaints. Separate processes can mitigate the risk that the initial complainant feels required to defend themself in their complaint or that attention is unfairly drawn away from the initial complaint, among other benefits.
• Consider timing. You must promptly address any complaint in compliance with the timeframes in your policy. But you may extend the time to respond for good cause. If you fear bad faith or harassment, it may be good cause to extend the time to respond to the second complaint until the first is complete. This won’t fly in every case, but it’s something to consider with knowledgeable legal counsel if you are looking for options to address a difficult situation.
• Discipline for bad faith. If you establish bad faith regarding the cross-complaint, use your institution’s policies and procedures/regulations allowing discipline. Just beware that a mere finding of insufficient evidence is not enough to discipline either party for providing false information or making a complaint in bad faith. You would need more—evidence of willfully misrepresenting facts, failing to provide a reasonable explanation for a claim, etc. But if you can establish it, use your institution’s rules to discipline the behavior.

Won’t our educational institution be found to have retaliated against the complainant if we let the respondent file a cross-claim or retaliation complaint? At least one appellate court rejected such an argument against a University. In the 2019 case Doe v. Princeton, a male student, Doe, alleged sexual assault by another male student. The initial respondent (alleged perpetrator) filed a cross-claim. In a subsequent lawsuit, Doe, the original complainant, alleged that Princeton retaliated against him for his complaint against the original alleged perpetrator by “facilitating [the original alleged perpetrator’s] cross-complaint and/or initiating its own charges against [Doe].”

The court rejected Doe’s claim, noting that he “failed to allege that he suffered adverse action because of protected activity. Princeton did not sua sponte initiate charges against Doe; rather [the original complainant] filed a cross-complaint.” In other words, investigating and adjudicating a student’s cross-complaint is not an adverse action.

That makes sense. The Title IX rules do not allow a school, college, or university to ignore a complaint simply because it is submitted as a cross-complaint or retaliation claim. Upon actual knowledge of a report of misconduct that meets the Title IX threshold questions, the Title IX Coordinator or designee must meet with the alleged victim to offer supportive measures and explain the formal complaint process. If a formal complaint is filed by the alleged victim or signed by the Title IX Coordinator or designee, the school must investigate the complaint. And if a report is found to have been made in bad faith, the rules allow the educational institution to impose punitive and disciplinary consequences against the person making the report without going through the Title IX grievance process to do so. However, that investigation and response, in most cases, will occur during the investigation stage, not intake.

What About Speech? Can’t a Complainant Say Whatever They Want About the Respondent?

Some Title IX administrators get concerned about violating the First Amendment by opening a complaint by a respondent against the complainant for talking to others about the complaint. How should you handle those situations?

There is no doubt that some speech by an alleged victim about their alleged perpetrator is protected speech. In a previous blog post, Call-Out and Cancel Culture and Title IX: How Should Educational Institutions Respond?, I talked about a case from the U.S. Court of Appeals from the Fourth Circuit that recognized this type of First Amendment protection. But even that case left open the door for educational institutions to impose consequences for speech by an alleged victim who “calls out an individual and subjects them to ongoing, serious, and impactful harassment that a reasonable person would find offensive, the school will have more leeway to respond.”

How can that be? The First Amendment has never been absolute. Consider the Supreme Court’s recent decision in Mahanoy. The Court expressly referred to severe bullying and harassment—even occurring off-campus—as subject to regulation. Certainly, severe bullying and harassment, even if “protected speech,” occurring on campus is subject to regulation. So, if an alleged victim’s speech about an alleged perpetrator is alleged to have crossed that line, you should investigate it.

These claims may be among the hardest you will be asked to handle in your Title IX role. But as with most things Title IX, if you “Keep Calm and Follow the Rules,” you will be ok. That may mean investigating a complaint by a respondent that just doesn’t feel right. Those who have taken my training on the new rules know, however, that you don’t get to avoid things in the rules just because they make you feel “icky.” If you follow these suggestions, however, you may be able to remove some of the discomfort. As always, you can find me at jwernz@thlaw.com if you have any questions.