2020’s Title IX regulations introduced historic changes to the grievance process, many which were highly contested in k12 and higher education. Required live hearings, a narrowed definition of sexual harassment, and an emphasis on equal party rights drew criticism from Title IX professionals and educators nationwide.
Within these sweeping changes, however, informal resolution presented a flexible approach to Title IX complaints, one that could provide an alternative to a long and arduous formal grievance process.
What is Informal Resolution?
The Department of Education defines informal resolution as a “process, such as mediation, that does not involve a full investigation and adjudication.” It can serve as an alternative to a lengthy fact-finding, hearing, and decision-making process.
In an informal resolution process, all parties involved must agree to a proposed resolution facilitated by a trained mediator.
Examples where an informal resolution could work include:
- A complainant and respondent both play on the same athletic team. Parties agree that if the respondent willingly leaves the athletic team, a formal grievance process isn’t needed.
- Instead of an investigation and hearing, a complainant prefers that the respondent undergo a non-punitive, developmental process. The respondent agrees to engage in a restorative justice program instead of a formal investigation with a finding of responsibility.
- A respondent withdraws from the institution mid-investigation. The complainant doesn’t want their case dismissed, but they also prefer not to continue a formal process when the respondent is no longer a student. Parties could agree to an informal resolution stating that the respondent will not return to the institution.
Cautions and Caveats
Although informal resolution presents flexibility in some areas of Title IX, many complaints are not appropriate for this option.
Title IX administrators must remember these caveats when considering informal resolution:
- Informal resolution cannot be used when a case involves allegations of an employee sexually harassing a student.
- A formal complaint must be filed in order to pursue informal resolution (Biden’s proposed changes eliminate this requirement).
- All parties must consent to informal resolution before implementation. Title IX administrators should never push informal resolution if parties can’t come to an agreement, if they withdraw at any point, or if they prefer a formal grievance process.
- Anyone conducting informal processes or mediations must be trained in Title IX scope, impartiality and bias, party rights, and general Title IX and school policies.
- If a complainant wants to eventually pursue a formal process with a finding of responsibility and sanctions, they should not pursue informal resolution, as it will close the opportunity of a formal investigation.
Even with its limitations, informal resolution can provide flexibility for applicable cases. Title IX administrators should have a plan for this approach when appropriate, especially since it’s expected to remain in the newest regulations this October.
How We Can Help
For up-to-date information on all Title IX changes and how they affect you and your institution, join us for Title IX Thursdays on the first Thursday of every month.
For more information about our Title IX consulting services, including advising, hearing adjudication, and investigation, contact us at firstname.lastname@example.org.