Formal Complaints (Response 5/22/2020)
The 2020 Regulations state: “At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the school with which the formal complaint is filed.”
While I think I understand the intent and motivation behind this section, I would ask that OCR please provide guidance on the following type of case, which happens frequently. A complainant either withdraws from the recipient because of sexual violence and then files a complaint, or files a complaint but then withdraws as a result of the sexual violence or stress of the grievance process. She has been effectively denied access to her education program because of sex discrimination, in a view that I believe would be commonly held. She is neither participating in nor attempting to participate in the education program, though she might return once she heals and knows that her perpetrator is no longer a student (as the result of the grievance process). I believe the regs provide that a recipient could resolve this matter under its conduct code if it chose to, but it is OCR’s position that she is not entitled to a Title IX process and remedies despite the fact that she was deprived of her education access the same as any student who had chosen to remain enrolled, and experienced sexual assault while she was a student?
The phrase “participating or attempting to participate” used in § 106.30 (defining “formal complaint”) is intentionally broader than whether a person is a “student” or “employee.”
In the Rule at page 373, the Department explains: “Title IX obligates recipients to operate education programs or activities free from sex discrimination, and we do not believe Title IX’s non-discrimination mandate would be furthered by imposing a time limit on a complainant’s decision to file a formal complaint. The Department does not believe that a statute of limitations or ‘without undue delay’ requirement is needed to safeguard the rights of respondents, because the extensive due process protections afforded under the § 106.45 grievance process appropriately safeguard the fundamental fairness and reliability of Title IX proceedings by requiring procedures that take into account any effect of passage of time on party or witness memories or the availability or quality of other evidence. We have, however, revised the § 106.30 definition of formal complaint to state that at the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the recipient’s education program or activity. This ensures that a recipient is not required to expend resources investigating allegations in circumstances where the complainant has no affiliation with the recipient yet refrains from imposing a time limit on a complainant’s decision to file a formal complaint.”
In the preamble to the Rule at pages. 411-12, the Department further explains (emphasis added):
“A complainant who has graduated may still be ‘attempting to participate’ in the recipient’s education program or activity; for example, where the complainant has graduated from one program but intends to apply to a different program, or where the graduated complainant intends to remain involved with a recipient’s alumni programs and activities. Similarly, a complainant who is on a leave of absence may be ‘participating or attempting to participate’ in the recipient’s education program or activity; for example, such a complainant may still be enrolled as a student even while on leave of absence, or may intend to re-apply after a leave of absence and thus is still ‘attempting to participate’ even while on a leave of absence. By way of further example, a complainant who has left school because of sexual harassment, but expresses a desire to re-enroll if the recipient appropriately responds to the sexual harassment, is ‘attempting to participate’ in the recipient’s education program or activity.”