It is a familiar situation for most Title IX coordinators: a student reveals that he/she is being sexually harassed by someone but follows the declaration up with a plea that he/she just wanted someone to know but does not want to file a complaint. In fact, often the student will then state that he/she does not want the coordinator to do anything further and demands that the information be kept confidential. So, what is a Title IX coordinator’s obligation in that situation?
Historically, Title IX coordinators have been instructed that once they are on notice of an allegation of sexual harassment, the allegation must be investigated whether or not the alleged victim wanted an investigation. This made a lot of sense. A minor student may not want to give a written statement or otherwise start a formal complaint for any number of reasons. Once on notice, however, the district had an obligation to investigate and eliminate any sexual harassment that it found. While the investigation might be more difficult if the alleged victim did not want to cooperate, depending on the situation (for example, there may be other witnesses or the harassment may be widespread and involve numerous individuals who might be willing to provide evidence), harassment might still be found and then the district would be obligated to remedy it. A failure to remedy the harassment could be considered a violation of Title IX.
The new Regulations that go into effect on August 14, 2020, however, turn this on its head, allowing for a formal complaint investigation only when there is a formal complaint signed by the student, the student’s parent/guardian (at the elementary or secondary education level) or the Title IX coordinator. In situations where there is not the requisite signed complaint, while there is an obligation to provide supportive measures to the complainant, there is no obligation to conduct a Title IX investigation into the allegations. Third parties, other staff members, or even the principal of the school where the harassment is alleged to have taken place cannot start a formal Title IX investigation. Yet, the Regulations make clear that the alleged harasser may not be disciplined for violating Title IX unless there is a formal complaint filed and the formal grievance process is followed.
The Title IX coordinator is now put in the difficult position of having to decide in each situation in which the Title IX coordinator learns of potential sexual harassment and the complainant chooses not to file a complaint on his/her own behalf whether to sign a formal complaint and thus start a formal investigation against the complainant’s expressed wishes. If the coordinator signs the formal complaint against the wishes of the complainant, that decision ultimately will be reviewed for whether the Title IX Coordinator (and thus the district) was deliberately indifferent in making the decision if the decision is challenged.
What are the ramifications of a Title IX coordinator choosing to sign a formal complaint? Although the Title IX coordinator files the complaint, the student who is alleged to have been harassed is still considered the complainant. Thus, all the regulations related to allowing both parties access to information would apply. The Title IX coordinator, therefore, would be required to provide the respondent with the name of the complainant and the alleged harassing conduct over the objection of the complainant. Obviously, such a decision should not be made lightly, but rather should be made only after careful consideration.
In the commentary to the Regulations, OCR has suggested that the determination as to whether a Title IX coordinator’s decision to file a formal complaint is deliberately indifferent, may include a review of the Title IX coordinator’s communication with the complainant to understand the complainant’s desires regarding the grievance process. OCR also has stated that if the complainant chooses not to file a formal complaint, the complainant cannot be forced to participate in the grievance process in any way and the anti-retaliation provisions in the Regulations specifically state that the district cannot retaliate against the complainant for choosing not to participate in the formal complaint process. Thus, an investigation into a formal complaint filed by the Title IX coordinator could proceed without the alleged victim’s participation in any way.
The Title IX coordinator must also act as a gatekeeper to recognize when the alleged conduct, even if it does not rise to the level of filing a formal complaint, might violate state statutes or other board policies. For example, the conduct, while not rising to the level of the Title IX coordinator filing a formal Title IX complaint, could still be considered bullying and might violate the Board’s anti-bullying policy. Or, in the case of conduct by a school employee, a report may need to be made to the Department of Children and Families (“DCF”) if the alleged conduct could constitute abuse or neglect. Similarly, take the example of a student who shortly after he graduates from high school comes back and reports that he had a sexual relationship with one of his teachers. The student is no longer participating in or attempting to participate in the education program or activity because he has graduated. The teacher’s conduct, therefore, even if true, arguably does not violate Title IX as implemented through the new Regulations solely because the student did not make the report until after he graduated (highlighting a serious problem with the new Title IX Regulations). Nonetheless, the teacher’s conduct, if true, violates state law, the district’s policies, would need to be reported to DCF and would be grounds for termination of the teacher’s employment contract under C.G.S. §10-151.
The Regulations place the Title IX coordinator in the “hot seat” when determining whether to sign a formal complaint over the objection of a complainant. At times, for example when the respondent has been alleged to have engaged in multiple acts of sexual harassment against multiple students, the decision might be that it would be a deliberately indifferent response to concede to the complainant’s wishes regarding confidentiality due to the widespread nature of the alleged harassment. At other times, however, it may be deliberately indifferent to ignore the wishes of the complainant and move forward with the complaint over the complainant’s objection and thus revealing to the respondent the identity of the complainant and the allegations. One thing is clear, no matter what decision the Title IX coordinator makes, he/she will need to document the reasons for the decision to either sign or not sign a formal complaint and must be able to show an intentional and thoughtful process used to reach that decision in case it is later challenged.
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