By Jackie Gharapour Wernz

I was lucky enough to present with my dear friend Jacqui Litra in a lengthy session on all things Title IX at the inaugural conference of the National School Attorney’s Association last month in Nashville. If you aren’t familiar with it, NSAA provides the only unified, non-political, independent organization for attorneys representing school districts of all shapes, sizes, and political and social leanings. (Disclosure: I’m also lucky enough to be on the NSAA’s Transition Board and was the primary author of the organization’s comment to the proposed Title IX athletics rule, so I’m a pretty big fan).

One of the questions we received from the audience, packed with school lawyers from across the country, was, “What can you do when a Title IX complainant does not want to sign a formal complaint?” What that means is that this is not a stupid question—it is one that many brilliant people are struggling with across the country, even three years after the 2020 rules went into effect. So what is the answer? Is it “Nothing”? Or can you use another, non-Title IX process to address the behavior? As we explained at NSAA, neither of those options is correct. There are many things you can do. But you cannot use a complainant’s reluctance about the Title IX process to “back door” the case into a non-Title IX process. Here’s why.

The Title IX rule, at 34 CFR § 106.44(a), explains how an educational institution must respond when it has “actual knowledge of sexual harassment in an education program or activity of the [educational institution] against a person in the United States.” What is required? An educational institution “must respond promptly in a manner that is not deliberately indifferent.” Remember that for purposes of these expectations, “sexual harassment” is Title IX sexual harassment, meaning the conduct is either what I call the Title IX “Big Five” (employee quid pro quo, sexual assault, domestic violence, dating violence, and stalking) or is what is commonly referred to as “hostile environment sexual harassment,” meaning unwelcome conduct based on sex that is so severe, pervasive, and objectively offensive that it effectively denies equal access to a school, college, or university’s education program or activity.

What is a non-deliberately indifferent response? Well, section 106.44 says such a response must include using the Title IX process–and only the Title IX process–to address conduct covered by the rule. The rule states: “A recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent.”

I’m not sure about you, but when I read “any disciplinary sanctions or other actions,” I hear “any disciplinary sanctions or other actions” for the covered conduct. Reading the plain language 34 CFR § 106.44(a) as a whole, the only method for imposing sanctions against a respondent for conduct that falls under Title IX is by using the Title IX grievance process.

But wait, what if you relabel the “Title IX ” conduct as “non-Title IX conduct” before using a non-Title IX process to address it? For example, if there is a sexual assault, that is also an assault. Can you investigate the sexual assault as a plain assault under a non-Title IX process if the complainant does not file a formal complaint of sexual assault?

Be wary of the Title IX rule, at 34 CFR § 106.71, which defines as one example of “retaliation” imposing “charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or this part.” That means that even if you could repackage Title IX conduct as non-Title IX conduct, if you are found to have done so to create an end-run around the Title IX process, you will have a problem.

My rule of thumb is that if you can investigate a non-Title IX allegation without investigating the same conduct that would lead to the Title IX investigation, you’re ok. If you receive a report that a student sexually harassed another student in the school restroom with a knife, and you use that information to search the student’s locker and find the knife, there is no need to investigate the sexual assault to discipline for the knife. But, if you don’t find the knife in the locker or other belongings of the student, and the only evidence of the knife is the very same evidence that you would use to prove the sexual assault (e.g., the alleged victim’s testimony about what happened), Title IX is the correct process to investigate the conduct.

So what do you do if you have a Complainant who does not want to sign a formal complaint? Do you just ignore the conduct? No!

First off, those of you who do training with me know my phrase: “Support the mess out of the alleged victim!” Regardless of whether there is ever a formal complaint, you can and should provide the alleged victim supportive measures. Supportive measures can include things like mutual no-contact orders, escorts, counseling, medical services, academic support services such as tutoring, allowing the alleged victim to retake assignments, tests, or courses without penalty, reviewing and revising disciplinary actions against the alleged victim that may have resulted from the alleged harassment, voluntary changes in class or work schedules, and other non-punitive, non-disciplinary supports to help a person continue on in their education or work after an allegation has been raised. These measures can be incredibly effective even without an investigation or discipline because they don’t require any evidence that the alleged conduct occurred.

Second, you can implement measures for the broader population or community, including counseling and training for students, employees, and parents, reiteration of nondiscrimination expectations, developing materials for education, and implementing policies and procedures to address the alleged conduct. Again, these should be non-punitive and non-disciplinary and should not single out the alleged perpetrator.

Third, if the conduct is so serious that your educational institution feels it cannot move forward without investigating and addressing it with punitive or disciplinary consequences, the Title IX Coordinator can sign a formal complaint to initiate the grievance process under Title IX. Factors that a Title IX Coordinator will consider when deciding whether to sign a formal complaint include whether the alleged perpetrator is in a position of authority, whether there is an alleged pattern of misconduct, the seriousness of the allegation, including whether it allegedly included violence or weapons, and the age or other characteristics of the individuals alleged to have been harassed.

Yes, if you sign a formal complaint, you are overriding the wishes of the alleged victim not to move forward with an investigation. And yes, if you sign a formal complaint, you must notify the alleged perpetrator of the alleged victim’s name. But, signing a formal complaint is the best way to safely address Title IX-covered conduct where the complainant does not want to sign a formal complaint. So it is an incredibly useful option for educational institutions that feel they must address reported conduct through the grievance process.

I know that the Title IX regulations are not fun. And it is reasonable to do your best to avoid using them whenever possible. However, educational administrators need to understand the risks of using a non-Title IX process to address Title IX-covered conduct in the ways described in this post. If you ever have questions about whether you can use a non-Title IX process, you can contact me or any other Thompson & Horton attorney for further assistance.