What Is An “Informal Resolution” In A Title IX Case?
Under the new Title IX regulations, the gender-equity law, on-campus sexual misconduct cases may be resolved through the process of informal resolution. This process is different from a formal investigation, which involves a more “traditional” court-like process referred to as a live hearing. Instead, the informal resolution process involves mediation, education, and restorative justice. The goal of informal resolution is to facilitate a mutually agreeable outcome for the alleged conduct.
The informal resolution process must be voluntary, and both the complainant and the respondent must agree to proceed. At any time, parties are allowed to withdraw from the informal resolution, in which case a formal investigation process will begin. Regardless of the chosen method of resolution, schools must implement interim measures and fulfill other mandatory response obligations.
What are the restrictions given to schools regarding informal resolution?
A school may NOT offer informal resolution…
- As a default option: a formal complaint must be filed before a school offers an informal resolution process.
- As a condition for enrollment or continuing enrollment
- As a condition for employment or continuing employment
- As a condition for the enjoyment of any right or privilege
- When the complaint is against a faculty member or school staff
What might the typical process of informal resolution look like?
- The complainant files a formal report.
- The school’s Title IX coordinators will review the case.
- Title IX coordinators will contact both the complainant and the respondent to discuss possible options, including informal resolution.
- If both parties agree, and if applicable to the case, parties enter the informal resolution process.
- Title IX coordinators or counselors will provide necessary support and considerations for the complainant, as part of the school’s response obligations.
- Title IX coordinators or counselors will meet with the respondent for developmental conversations and guidance.
- Title IX coordinators will discuss with the respondent any course of action to be taken, which may include counseling, behavior programs, and mediation.
- Both parties will be notified of the outcomes of the informal resolution process.
Do students have the right to due process?
Part of schools’ responsibilities under the new regulations of Title IX is to ensure that all members of the school community are aware of their right to due process.
Under the new regulations, schools may only offer informal resolution if there was a formal complaint filed. Complainants and respondents must be cognisant of their right to a formal Title IX investigation before agreeing to enter informal resolution. It is also important that parties know that they can withdraw from informal resolution anytime in favor of a formal investigation.
In a formal investigation, both the complainant and the respondent have an equal opportunity to present evidence, witnesses, and even expert witnesses in a live hearing. A formal investigation gives both parties due-process protections, and for respondents, a shield against unfair disciplinary actions.
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