K-12 Conduct Proceedings (Response 8/13/2020)
The complainant and her family decide they don’t want to file a formal complaint (too complex and lengthy). The K-12 school offers supportive measures and asks the school to resolve the allegations under its code of conduct instead. The school agrees and resolves outside of 106.45 using its conduct process. Is this permissible?
Further, the complainant changes her mind as the conduct investigation unfolds, and decides to file a formal Title IX complaint. Now, does the K-12 have to stop its conduct process and redo its entire investigation in a way that complies with the regulations?
Comment from Brett: Having re-read this now, the question was about the retaliation provision and the intent of the Complainant in circumventing 106.45. I think the OPEN Center misinterpreted or misread the intent of the question.
The new Title IX Rule requires a recipient to refrain from imposing disciplinary sanctions on a respondent (that is, an individual who is reported to be the perpetrator of conduct that could constitute sexual harassment, where “sexual harassment” is defined by the Rule) without first following a grievance process that complies with § 106.45. §§ 106.44(a) (equitable treatment of complainants and respondents), 106.30(a) (defining “respondent”). Thus, an elementary or secondary school would be in violation of the Rule if it imposed disciplinary sanctions on a respondent without first following the § 106.45 grievance process. Note that § 106.45(b)(9) allows a recipient to facilitate an informal resolution of sexual harassment allegations (except as to allegations that an employee sexually harassed a student) subject to the requirements of that provision, including inter alia that a formal complaint is first filed, and that each party voluntarily agrees to the informal resolution process after receiving prescribed written notice.
If a complainant initially does not wish to file a formal complaint (and the Title IX Coordinator does not sign a formal complaint because signing one is not required in order for the recipient’s response to not be deliberately indifferent), and the complainant later changes his or her mind and does file a formal complaint, then the school must investigate that formal complaint in accordance with § 106.45. § 106.44(a) (supportive measures are available with or without a formal complaint); § 106.30(a) (defining “formal complaint”); § 106.44(b)(1) (“In response to a formal complaint, a recipient must follow a grievance process that complies with § 106.45.”).