Informal Resolution as a Solution for Title IX Cases at Your School
By: Ashling A. Ehrhardt, Sydney Smith Forquer and Allison Wisniewski
While most of us in the world of higher education thought that the Department of Education (ED) would release the new Title IX regulations in October, it looks like that will not happen until 2024. Therefore, Title IX compliance and investigations this academic year will look similar to those conducted last year. With that in mind, now is a good time to consider utilizing the cost-effective informal resolution process at your school.
Pros and Cons of Informal Resolution
The informal resolution process is a powerful tool that gives parties a say in the outcome. It is student-centered and trauma-informed and saves expenses, time and resources, reducing stress for those involved. In many cases, informal resolution avoids the protracted formal process, including cross-examination and a hearing, allowing the parties to choose to talk about the allegations with boundaries and a skilled moderator. In many cases, parties can be honest about the situation, express their hurt and find a place of closure. When done properly, the informal resolution process is not just a triage to move the case forward but part of a process in which all parties are supported holistically. So why isn’t every case resolved informally?
Many schools do not permit informal resolution if the allegations include sexual assault. Oftentimes, complainants decide they would like the allegations to be adjudicated under the formal process because they believe that the respondents will be held accountable in a way perceived to be more “harsh” and not just a “slap on the wrist.” Unless the student affairs professional(s) or legal team leading the informal resolution process is skilled, parties are often hesitant to communicate with each other, especially when there is a no contact order already in place. The absence of sincere dialogue results in a lack of closure and feelings of not being taken seriously.
In reviewing the history of informal resolution, we can learn how to best offer it to students so a successful resolution can be reached when the parties choose the informal route.
History of Informal Resolution
Before the 2020 regulations, informal resolution was not required as part of the Title IX process. Some schools offered a nonmediation-based informal resolution process but often avoided such resolutions to ensure consistency in handling cases. The ED had issued guidance noting that mediation was not appropriate in cases involving allegations of sexual assault, so many schools were not offering it as a solution. That all changed when the ED issued the current regulations in 2020. For the first time, the ED allowed schools to provide informal resolution once a formal complaint was filed, even for cases involving student-to-student sexual assault. When the ED eventually issues the new regulations, there will likely be anticipated changes. For example, the regulations will likely still allow schools to offer informal resolution at any time before a determination of responsibility, but the language would not be predicated on a formal complaint being filed first. The ED wants to encourage schools to engage in informal resolution, even where a formal complaint has not yet been filed. The proposed language also ensures that the facilitator for the informal resolution process is not the same as the investigator or decision-maker.
Offering Informal Resolution
There are three requirements for the informal resolution process:
- The school must provide the parties with written notice;
- The school must obtain the parties’ voluntary consent; and
- The school cannot offer informal resolution for a case related to an employee’s sexual harassment of a student.
A key element to remember when offering informal resolution is that the parties must enter it voluntarily. The current regulations provide, “A school may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment.” This means a school cannot force students or employers to waive their right to a formal investigation. Similarly, a school cannot force students or employers to participate in informal resolution.
In addition, once they have agreed to enter the informal process, the parties can change their minds and go back to the formal process at any time before agreeing to a resolution. This ability to switch processes is unique to Title IX but is rooted in trauma care. The school’s notice offering informal resolution must disclose that the parties can do so.
When a complaint is filed, a Title IX coordinator will hold multiple meetings with the complainant to review the process and options. During these meetings, it is crucial for the coordinator to be clear about the legal jargon to avoid the student becoming overwhelmed and failing to recognize the unique opportunity to resolve the allegations informally. We recommend schools provide both verbal and written explanations of their processes at each meeting. If, from the start of conversations, the informal process can be an option, it should be presented at the same time as the formal process. The coordinator can then discuss the option more clearly with the respondent. Part of these discussions with both parties, often with their advisers, is talking about how the informal resolution conversation will go, stressing the importance that the conversation only focuses on the specific allegation and that the facilitator will redirect any commentary that is not appropriate.
When both parties agree to informal resolution, the Title IX coordinator will memorialize the agreement in a written notice and schedule the meeting date. It should be noted that students entering this part of the informal process continue to receive supportive measures. The Title IX coordinator may also remind the students of additional services the school provides, especially when parties are preparing for the conversation if they have chosen that route.
Title IX coordinators should also accurately describe how the informal resolution will occur. Details matter. Where is it going to be located? Who will be there? How will my voice be heard? What happens when other issues/topics are brought up? All these questions should be reviewed, and parties put at ease. This option is being offered as a solution to allegations regarding a traumatic event, so the school is responsible for providing a safe space with clear expectations. Some schools have a wonderful space that will allow this conversation to occur. If your school uses a conference room or classroom that can be cold or hot, tell your students this. Do your best to prepare them for the environmental factors that will be at play so they have one less thing to worry about as they face a very emotionally driven conversation.
Preparation is key, and clearly outlining expectations will help the process be successful. If the parties initially refuse informal resolution, the school should not be afraid to revisit the topic and suggest it at different stages of the process. There are so many decisions for parties to make when they first report and are put on notice of allegations—and parties may not anticipate their reaction to the formal process until later. Consider building reminders about informal resolution at various points during the formal process and ensuring parties know that informal resolution is always an option.
Advisers Play a Key Role
Some parties are hesitant to engage in informal resolution because they do not want to speak with the other party directly. When first advising the parties about informal resolution options, Title IX coordinators should give examples of what different options look like. For example, some parties choose to have a conversation with a facilitator and advisers present. Other parties choose for the advisers to relay demands and wishes over a period of time, not during one conversation in the same room. This is where the role of an adviser becomes critical in helping the parties communicate. When parties carefully choose their advisers—attorneys, parents or good friends—there is value added in communicating directly with the other party’s adviser. The advisers share the parties’ wishes and desired outcomes without concern for breaching a no contact order or the stress of one party having to speak to the other party. Informal resolution allows for many creative options when reaching an agreement.
Reaching a Resolution
Schools should consider who will facilitate the informal resolution process, whether it be the parties, the advisers, the Title IX coordinator or another neutral option. The facilitator can suggest different types of informal resolution, including facilitated dialogue, a restorative circle and a negotiated agreement. The facilitator plays a key role, including how to respond to proposed terms suggested by the parties.
Speaking of terms, what do they look like in an informal process? All of the school’s traditional sanctions outlined in its policies are certainly options. Informal resolution lends itself to more creative, out-of-the-box terms, including restorative justice options. The terms can also include attending educational programs, as well as payment of personal items, medical expenses and legal fees.
Supportive measures are always available to parties during both the formal and informal processes. These can include counseling, no contact orders, academic support including but not limited to deadline extensions, changes to class schedules, changes in on-campus employment schedules, and increased security/campus escort services. A good practice tip is to clarify in the notice of allegations that both parties will receive supportive measures, no matter which option they choose.
Informal Resolution Agreement
Once the parties have agreed to terms, a signed written resolution detailing the specific terms is created. If there are attorney advisers involved, it makes the most sense for them to draft the agreement. The agreement should provide the agreed-upon terms, a consequence if the terms are not abided by and what the school records will indicate. It must also include language dismissing the complaint(s), and any other terms agreed to, such as confidentiality and nondisparagement. The agreement should address any no contact order in place while the students are enrolled and what happens after graduation or separation from the school, as well as the retaliation policy/process. Finally, it should state that the parties entered into the terms voluntarily, that there are no appeal rights and that they cannot restart the formal process when the parties sign the agreement. Once fully executed, it is a good practice for the Title IX coordinator to send a case closure letter to the parties.
By putting a little time and thought into your informal resolution process, you can make this process a successful one at your school.
Ashling A. Ehrhardt is chair of the Cohen Seglias Pallas Greenhall & Furman’s Title IX group. As an ATIXA-certified Level One Civil Rights investigator, she conducts investigations into allegations of sexual misconduct, discrimination and harassment at institutions of higher education. She also serves as an adviser to students in Title IX cases. Ehrhardt can be reached at aehrhardt@cohenseglias.com and 267-238-4761.
Sydney Smith Forquer, an associate with the firm, helps individuals, institutions, and companies navigate complex investigations. An ATIXA-certified Level One Civil Rights Investigator, she has experience conducting investigations into Title IX allegations and advising students in such matters. Smith Forquer can be reached at ssforquer@cohenseglias.com and 202-587-4747.
Allison Wisniewski, is the campus dean of students, executive director of student life and Title IX coordinator at Rutgers University-Camden. She provides leadership and maintains quality student service while overseeing multi-level, campus-wide student leadership, diversity and social development programs. Allison serves as a member of the school’s CERT and Domestic Violence Response Team as well as part of the behavioral response team. Wisniewski can be reached at aemery@camden.rutgers.edu.
Reprinted with permission from the September 26, 2023 edition of “The Legal Intelligencer” © 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, reprints@alm.com or visit www.almreprints.com.
