By Brett A. Sokolow, J.D., Chair of the Board, TNG; President, ATIXA
Introduction
You’re investigating a Title IX complaint and discover evidence of other misconduct involving the respondent. Should the Title IX Coordinator charge them with it? You’ve received a complaint that alleges both stalking and theft. Can you address both in the same resolution process? Collateral misconduct involves alleged offenses that arise in conjunction with Title IX allegations (same facts or circumstances) or come to light through the Title IX investigation process. ATIXA has long advised our members that their Title IX procedures should clearly apply to a respondent’s alleged collateral misconduct. This practice has surfaced a number of issues, with a particular focus on the question of whether the current Title IX regulations prohibit this approach as a form of retaliation. The short answer is no, and we explain why below.
Do the Title IX Regulations Prohibit Addressing Collateral Misconduct?
We get this question more often than I would have expected. It’s based on the language of the regulations, in the definition of retaliation, which states:
“Intimidation, threats, coercion, or discrimination, including 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, constitutes retaliation.”
Some Title IX practitioners interpret this part of the regulations to mean that if you include alleged collateral misconduct, you are violating the prohibition on retaliation. This is intuitively illogical, but the provision isn’t written as clearly as it could be, and unless you delve into the regulations’ preamble, the actual meaning is obscured, and even then, the preamble is not that illuminating.
We call this the “rose by any other name” provision. This provision has nothing to do with collateral misconduct, per se. It is simply a prohibition on doing an end run around the procedural due process requirements embedded in the regulations. Colleges and schools can’t rename the rose something else and use that as a way to evade the protections of the regulations. For example, you could not address an alleged sexual assault as a “harm to persons” offense under your conduct code instead of processing it under Title IX’s resolution process as laid out in §106.45 of the regulation.
It’s also helpful to pay close attention to the italicized words in the section on retaliation above, being mindful that collateral misconduct often comes to light in Title IX processes but does not necessarily arise from the same facts or circumstances as the underlying Title IX allegation(s). That’s yet another reason why this language does not actually prohibit you from addressing collateral misconduct. The last clause of the italicized section matters most. If you are processing the conduct for a reason other than interfering with Title IX rights, you are not violating this provision.
In fact, with a collateral misconduct rule like what is described above, you’re not avoiding the Title IX process at all. You’re using it to process collateral misconduct unrelated to sex that will not interfere with any right or privilege secured by Title IX, in addition to addressing the Title IX-related misconduct. And you’re using the §106.45 process to do all of that, rather than trying to avoid that process. It is avoiding the process that the retaliation provision is primarily trying to address. Hopefully, the context for this provision is clearer now.
What will run afoul of this provision? One example might be using a more minor offense other than a Title IX offense, like an alcohol or drug violation, to charge a student when the school or college would not typically enforce that policy in the circumstances in which it arose. Thus, using something like a third alcohol violation to suspend or expel a student instead of suspending or expelling for a sexual assault under Title IX would be retaliatory if the school did not always impose suspension or expulsion for other third alcohol offenses. That explanation feels more intuitively logical, at least.
Updating the NOIA
When you’re investigating a Title IX complaint, and collateral misconduct comes to light, allegations of the collateral misconduct can often be wrapped into the Title IX resolution, as it is often logical and efficient to do so. This avoids the duplication of multiple processes for the same occurrence. Institutional policy and/or procedures should clearly specify that the Title IX process can address collateral misconduct when it arises. All of ATIXA’s model policies and procedures include this language. When collateral misconduct comes to light, typically the investigators will notify the Title IX Coordinator (TIXC). The TIXC will then decide whether to add allegations and update the NOIA accordingly, or to refer the additional allegations to another process for resolution. When adding an allegation of any kind, it will be necessary to update the Notice of Investigation and Allegations (NOIA). Don’t forget this important step.
Amnesty
This raises the issue of amnesty, which is the practice of not pursuing allegations against a party for known (usually minor) misconduct, as an incentive to ensure they are comfortable reporting more serious Title IX allegations to administrators. If you grant a complainant amnesty for the very same conduct for which you pursue discipline for the respondent and do so for the purpose of interfering with any right or privilege provided by the regulations, that could be considered retaliatory by OCR. At least, that’s what the regulations’ preamble seems to suggest, though it remains unclear why and how you would be interfering with any right or privilege under Title IX if you addressed the minor alcohol or drug violation through the §106.45 process. This is, perhaps, a reasonably strong argument to grant amnesty to all parties when multiple parties to a Title IX complaint are also engaged in the same additional minor misconduct that is unrelated to Title IX (if you grant it at all).[1] The examples in the preamble all address pursuing discipline against a complainant with collateral misconduct in an effort to deter them from pursuing a Title IX complaint or resolution, which is inapplicable to the issues raised in this Tip of the Week, which focuses on collateral misconduct by a respondent. As applied to the context of this Tip, the preamble is frankly incoherent and therefore not particularly helpful or reliable as a guide.
Collaborative Sanctioning
Addressing collateral misconduct may often invoke the need for collaborative sanctioning. When a decision is made in a §106.45 proceeding, the decision-maker (DM) often collaborates with other offices/administrators to recommend or finalize sanctions. When collateral misconduct is also involved, the DM may need to collaborate on sanctions for that misconduct as well and should pay heed to the fact that they may need to collaborate with a different administrator than the one they are collaborating with on the Title IX offense(s), depending on procedural jurisdiction. For example, in one recent hearing where I served as a DM, I collaborated with the Dean of the Faculty on the Title IX sanctions and with HR on sanctions for other employee-based collateral misconduct that was included along with the Title IX offense.
Hybrid Dismissals
Title IX dismissals are layered with complexity and must be addressed as the final part of this discussion. There are four mandated grounds for dismissal under the Title IX regulations. There are three bases for discretionary dismissal, if a TIXC elects to dismiss. When you combine Title IX offenses with collateral non-Title IX offenses, the complexity increases. If you investigate a Title IX offense and a collateral offense, and the collateral offense does not survive the initial assessment of whether policy was violated, it can be dismissed. Many schools and colleges will use the same criteria applicable to Title IX dismissals, though that is not legally required for the collateral offense, which can be dismissed on any basis defined in policy. However, when the Title IX offense and the collateral offense are conjoined for resolution under the §106.45 process, and the Title IX offense is dismissed (mandatorily or discretionarily), then the collateral offense stands alone, and there is no basis to use the Title IX process to resolve it. Thus, the process is two-step, first the Title IX dismissal (which is subject to appeal), and then the referral of the collateral offense to whatever process would originally have addressed it had it not been bundled with the Title IX offense under §106.45.
Conclusion
While this is a highly technical and esoteric discussion, we hope that it clarifies some of the key and complex issues of managing collateral misconduct allegations, whether they arise from the Title IX incident, or from the investigation. While greater clarity and definitive answers from the regulations’ preamble would be welcome, these regulations will be eclipsed – likely in about a year – and thus this entire provision on retaliation will not create the issues it currently does for much longer. That said, latent complaints will arise in 2023 and 2024 that are likely still governed by the 2020 regulations because they occurred before the current regulations were replaced, and thus the somewhat greater clarity offered here may still be salient for some time to come, even after the new regulations take effect. With any luck, the retaliation provisions of the upcoming regulations will smell sweeter than the 2020 iteration to those of us tasked with understanding and applying it.
Follow along with the ATIXA Tip of the Week blog series here.
[1] Note that some state laws require institutions to grant amnesty in certain circumstances.