It’s an all-too-common scenario these days: Students report sexual misconduct perpetrated against other, often unnamed students. They post anonymously on Instagram. They tape letters to walls or post complaints on bulletin boards. They hold protests and speak out at board meetings. Often, the allegations are nothing more than vague references to harassment and mishandling of reports by the institution. For more on how to respond to bystander and anonymous sexual harassment reports under Title IX, keep reading here.

Bystander and Anonymous Reports Count

Under the new Title IX regulations, third-party (including “bystander”) and anonymous reporting (by the alleged victim or a third party), can trigger response obligations under Title IX. As the Department explained in the commentary to the 2020 Title IX regulations:

Irrespective of whether a report of sexual harassment is anonymous, a recipient [of ED funds] with actual knowledge of sexual harassment or allegations of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent generally and must meet the specific obligations set forth in revised § 106.44(a).

Actual knowledge exists when the Title IX Coordinator or an “official with authority,” including any employee of a K-12 school, learns of allegations of covered misconduct, no matter how the information reached them. Indeed, no one needs to report anything for Title IX to be implicated. If a Title IX Coordinator or another official with authority observes conduct which, if true, would be covered by Title IX, reads about it in a newspaper article, or learns about it in any other way, the school must respond, even if there is no reporting party involved.

In short, you can’t just ignore reports that Title IX sexual harassment has occurred in your educational institution because they are from someone other than the alleged victim or came through an anonymous report or tip.

Responding if the Complainant or Respondent are Unknown

If an alleged victim (the “complainant”) reports misconduct that falls under the Title IX rule, the school’s response is relatively straightforward. Generally, the 2020 Title IX regulations require a school, college, or university with actual knowledge of conduct covered by the new Title IX regs by, initially, offering supportive measures to the Complianant and explaining the complainant’s right to file a Formal Complaint. If the alleged victim is unwilling to file a Formal Complaint, the Title IX Coordinator or a designee can “sign” a Formal Complaint on behalf of the institution. If the alleged victim files or the Title IX Coordinator or designee signs a Formal Complaint, the institution must investigate, follow a decision-making process, and offer all parties an appeal as required by the new Title IX rules.

In cases of bystander and anonymous reports, the school, college, or university’s response is more complicated. It will depend on what information a bystander or anonymous report provides.

For example, the 2020 Title IX regulations require that the Title IX Coordinator or a designee offer supportive measures to the complainant–the alleged victim–when the institution has actual knowledge of alleged conduct covered by the rule. However, if a bystander or anonymous report does not identify the alleged victim, the school may be able to not offer supportive measures. According to OCR, that is ok:

A recipient’s response is judged on whether the response is clearly unreasonable in light of the known circumstances, which includes what information the recipient received about the identity of the complainant.

Similarly, although a Title IX Coordinator or designee can “sign” a Formal Complaint on behalf of the institution even if the complainant is unknown:

Without a complainant (i.e., a person alleged to be the victim of sexual harassment) at some point being identified during an investigation, a recipient may find itself unable to meet the recipient’s burden to gather evidence sufficient to reach a determination regarding responsibility. For example, without knowning a complianant’s identity a recipient may not be able to gather evidence necessary to establish elements of conduct defined as “sexual harassment under § 106.30, such as whether alleged conduct was unwelcome, or without the consent of the victim. In such a situation, the final regulations provide for discretionary dismissal of the formal complaint, or allegations therein.

Finally, if a third party or anonymous report does not identify the alleged perpetrator (the “respondent”), a recipient obviously may not be able to initiate a grievance process against the respondent. Where the whole purpose of the Title IX grievance process for sexual harassment is to provide due process to respondents before imposing disciplinary or punitive consequences, the lack of an identified respondent will understandably stop the process in its tracks.

When to “Sign” a Formal Complaint Based on a Bystander or Anonymous Report

One of the most complicated questions that arises with a bystander or anonymous report is how to decide if you have enough of a report to go on to “sign” a formal complaint. Remember that the decision to sign (and not to sign) a complaint will be reviewed based on the “deliberate indifference” standard. That means that if it would be be unreasonable in light of the known circumstances to sign a formal complaint–or not to sign one–a violation of the law occurs.

What factors should you consider when deciding whether to sign a formal complaint in cases of a bystander or anonymous report? As we explained in our earlier blog post on signing complaints:

[T]he Title IX Coordinator [or designee] 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.”

One shortcut that has been useful in practice, however, results from borrowing OCR’s own procedures to fill in gaps in the processes they required us to use. Those of you who work with me know that, as a former OCR attorney, I am a big fan of this type of borrowing. How can we do that here?

Section 108 of the OCR Case Processing Manual (CPM) allows OCR to dismiss an allegation that, on its face or as clarified, lacks sufficient factual detail (e.g., who, what, where, when, how), or is so speculative, conclusory, or incoherent that OCR cannot infer that discrimination or retaliation may have occurred or may be occurring. This provision applies where the complaint allegation (including any additional information provided by the complainant) does not provide sufficient information to raise the allegation above the level of speculation. The complaint must provide more than bare conclusions of alleged violations of the laws and regulations enforced by OCR.

How can this standard be used in cases of bystander and anonymous reports? If you find yourself in a situation where you are asked, as the Title IX Coordinator or designee, to “sign” a formal complaint based on a bystander or anonymous report, ask yourself whether there is sufficient factual detail to infer that sexual harassment covered by Title IX occurred. Consider the who, what, where, when, and how provided by the reporting party to determine whether there is enough to go on. If there is not, rely on that as your argument for why you are not required to sign the complaint based on the known circumstances.

Two things to note. First, before OCR dismisses a complaint under this portion of Section 108, it notifies the complainant of the standard and offers them an opportunity to provide the necessary allegations to keep the complaint alive. In cases where you are dealing with a bystander report, consider offering similar notice and opportunity, too. Second, remember to document, document, document your reasoning. 

Consider Patterns

Don’t forget that even if a specific bystander or anonymous report does not warrant a response under the new Title IX regs, school officials should consider patterns of behavior that may justify action under Title IX or otherwise. For example, what if you receive a handful of vague reports against a particular respondent over a semester or school year? Or multiple reports that sexual harassment is occurring in a specific program or activity? Or multiple anonymous or bystander reports about sexual assaults occurring off-campus and outside of the school’s program or activity within a certain grade level at a school?

Of course, if conduct from multiple reports would constitute Title IX Sexual Harassment covered by the new rules, you must use the steps described above before imposing punitive or disciplinary consequences on any respondents. But there are many measures, including supportive measures, that can be put in place to address behavior patterns, whether or not the new Title IX rules are implicated.

For example, meeting with alleged respondents to discuss proper sexual behavior, providing additional oversight or supervision in identified programs, and offering training to employees and students of a specific grade are all examples of measures that are appropriate with or without a Title IX finding. Schools can take more general steps, as well, such as reminding students of non-school avenues to address off-campus conduct, such as medical and law enforcement assistance, offering training to students and employees to increase awareness of in school reporting avenues and resources, and increasing curricular information on sexual assault.