The 2020 Title IX Regulations have created a number of interesting brain teasers for legal experts and industry professionals. Ever since the first “leaked” draft of the proposed regulations in summer/fall 2018, the experts at the Association of Title IX Administrators (ATIXA) have invested an untold number of hours to dissecting and debating the impact of the regulations on Title IX programs at colleges and universities, K-12 school districts, hospitals, museums, clubs, and even PPP loan recipients. It’s a lot to digest. It doesn’t help matters that, in some places, the regulations seem to double-back on or conflict with themselves. That’s not all that surprising for a 2000+ page document of highly prescriptive and at-times-legally-dubious rules.
The Department of Education (ED) Office of Civil Rights (OCR) seems to have anticipated some of the confusion and conflict. They created the OPEN Center to allow funding recipients and industry professionals to pose specific questions and receive answers from OCR attorneys. ATIXA has made copious use of this service, and while many of the answers are simply regurgitations of what’s already written in the preamble or the regulations themselves, some of the answers have been helpful and others have managed to muddy the waters further. The exhaustive list of ATIXA’s questions and OCR’s answers is available in our OPEN Center archive.
One particularly sticky issue that has continued to confound experts (even within our own ranks) is the particular provision that requires dismissal of a formal complaint if the alleged conduct “would not constitute sexual harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education program or activity, or did not occur against a person in the United States.”[1] Upon dismissal, the regulations require the recipient to “promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.”[2] Finally, the Regulations indicate that “[a] recipient must offer both parties an appeal…from a recipient’s dismissal of a formal complaint.”[3]
A strict reading of these provisions seems to indicate an interesting potential scenario: that a Complainant’s formal complaint is clearly outside the jurisdictional scope of the regulations, thus triggering the mandate to formally dismiss and open an appeal window for the Complainant to challenge the dismissal. Despite the required dismissal, the Respondent would be alerted to the allegations based on the regulations’ requirement that notice be provided to all known parties “upon receipt of a formal complaint.”[4]
Most Title IX professionals would be loath to initiate the full formal grievance process as prescribed by the regulations for a complaint that clearly failed to meet required jurisdictional elements. Prior to the 2020 regulations, many professionals used a “preliminary inquiry” phase of initial fact-gathering to assess the sufficiency of the allegations and determine whether any formal resolution steps were necessary. The “little i” investigation typically preceded notice to the Respondent, and no formal appeal opportunity attached to a recipient’s decision to dismiss allegations on the basis that the recipient didn’t have appropriate jurisdiction or that the described circumstances, even if true, would not constitute a violation of the recipient’s Title IX-derived policies.
There is little visible wiggle room in the text of the regulations. A formal complaint triggers notice to the respondent and an initial assessment of the allegations. That assessment covers the required jurisdictional components, but it’s an assessment on the face of the complaint, not the sufficiency of the information provided. In the Preamble to the 2020 Title IX Regulations, OCR directly rejected the use of a “reasonable cause” threshold or other type of sufficiency evaluation in order to determine whether a formal resolution (outlined by § 106.45) is appropriate.[5] And therein lies the quandary – how do Title IX Coordinators manage notice of allegations that may become formal complaints that clearly fall short of the jurisdictional requirements outlined by the regulations? This is especially poignant in the case of the jurisdiction element that requires dismissal when the allegations, even if proven, would not meet the regulatory definition of sexual harassment. Thus, this is a substantive assessment requirement disguised within a procedural jurisdictional rule.
The best way to avoid having to dismiss a defective formal complaint and avoid initiating a burdensome procedure for the parties to have notice and opportunity to appeal is robust, up-front communication. Title IX Coordinators must ensure that reporting and intake mechanisms provide ample information, as well as opportunities to ask questions and evaluate options, prior to the formal complaint being filed. In § 106.44, the regulations outline the framework for information sharing and communication upon notice, but administrators risk overlooking or underappreciating the value of post-notice but pre-formal complaint interactions between the Title IX Coordinator (or designee) and the potential Complainant. Pre-complaint dialogue is the best opportunity to help a potential Complainant to understand the limits of the policy, the viability of filing a formal complaint, and other available options for support and resolution, to ensure valuable time and resources are not wasted on “defective” formal complaints that will just have to be dismissed.
At a minimum, notice of allegations of sexual harassment must be forwarded from mandated reporters to the Title IX Coordinator or their designee. This will help to comply with § 106.44, but also to maximize the potential Complainant’s ability to understand their options under the policy. Where the regulations require communication to the potential Complainant about how to file a formal complaint, it is equally important to help the potential Complainant understand the viability of a complaint. If jurisdiction is clearly lacking, the potential Complainant should understand the implications of an immediate dismissal and notice to the Respondent, which could be just as likely to frustrate the potential Complainant’s need for support and resolution as it would be to satisfy it.
All options for resolution should be on the table including the potential for resolution under another policy. Hopefully, the potential Complainant accepts the Coordinator’s offer to meet, as the resolution mechanisms are complex, not easily intuited, and best understood when explained. The regulations specifically leave the door open for a recipient to address behavior that falls short of the jurisdictional and definitional limits of the Title IX regulations using an alternative policy/procedure, such as a student code of conduct, employee behavioral standards, faculty ethics code, or other behavioral policies. A Complainant should understand all avenues for support and resolution, even if the process prescribed by the regulations is unavailable to them.
If the Complainant persists with a formal complaint, and the Coordinator must dismiss, parties may still avail themselves of an appeal of that dismissal. Remember that an appeal of a dismissal is limited to acceptable grounds. An appeal isn’t an avenue to simply disagree with a decision – it must be grounded in either a procedural irregularity, new evidence not reasonably available at the time of the decision, or a conflict of interest or bias.[6] If dismissal is appropriate, notice of a formal complaint and dismissal can be communicated simultaneously to the parties along with the process for appeal, timeline to file, and instructions for how to file as outlined in the recipient’s policy. While a complaint may be doomed to failure, a Complainant has a right to file it, and the Title IX Coordinator will have engaged in robust communication with the Complainant to prepare them for this outcome. In fact, for some Complainants, an intentionally dismissed complaint may be a strategic and desired path around the regulations, as a means to access an alternative resolution process with a reduced risk of an allegation of retaliation by the Respondent.
Conclusion
Time, people-power, and resources are increasingly scarce commodities for Title IX administrators. While the regulations reject the idea that formal complaints can be disregarded based on obvious deficiencies like a lack of jurisdiction, the burden on the recipient to comply with the regulations can be managed and mitigated with the techniques suggested above. As with many things, communication is key. Don’t shortchange the § 106.44 meeting with the Complainant, make all potential support and resources options readily available, be forthright and transparent regarding the likely outcome of a “defective” formal complaint, and the other options that the recipient can provide.
[1] 34 CFR 106.45(b)(3).
[2] Id. at (b)(3)(iii).
[3] Id. at (b)(8)(i).
[4] Id. at (b)(2).
[5] https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf at p. 293.
[6] 34 CFR 106.45(b)(8)(i).