Post-2024 Amendment: Informal Resolution in Title IX Sexual Harassment Complaints

Under Title IX regulations, school districts are granted flexibility to offer informal resolution as part of the grievance process for sexual harassment complaints. This alternative to formal procedures can be tailored to the specific circumstances of each case, empowering both parties to seek a resolution. Below, we outline when informal resolution is appropriate, the guidelines for its implementation, and how this flexible approach can be effectively utilized.

To begin, informal resolution serves as a voluntary alternative to the formal grievance process. Both parties must agree to participate freely, without pressure or coercion from the school. It is critical that no school requires the parties to engage in informal resolution, ensuring participation remains fully consensual. Importantly, neither party can be compelled to waive their rights to a formal investigation or any other legal protections as a condition of enrollment or employment.

The 2024 amendments to Title IX regulations expanded the scenarios in which informal resolution may be offered. School districts can now initiate this process upon receiving a complaint of sex discrimination or when presented with information suggesting conduct that could reasonably be considered discriminatory. This marks a significant shift from the 2020 amendments, which only permitted informal resolution once a formal sexual harassment complaint had been filed. However, the option for informal resolution is still prohibited in cases where an employee is accused of sex-based harassment against a student, particularly in K-12 schools, or when it conflicts with other laws. Moreover, school districts may opt not to offer this option if they believe the alleged conduct poses a risk of future harm.

Title IX coordinators play a pivotal role in the proper execution of informal resolution. Upon receiving notice of possible sex discrimination, the coordinator must offer and coordinate supportive measures for both the complainant and the respondent. Additionally, they are responsible for informing the complainant or reporting party about the availability of informal resolution if appropriate. Throughout the process, coordinators must ensure that sex discrimination does not persist or recur within the school’s programs or activities.

Supportive measures are fundamental to the informal resolution process, ensuring that neither party is unfairly burdened. These measures may include counseling services, academic support, or changes to class schedules, all aimed at protecting the safety of the parties involved while maintaining the integrity of the educational environment. Importantly, supportive measures must not be punitive or disciplinary in nature. Once the informal resolution process concludes, these measures may be adjusted or terminated, ensuring a safety net remains in place during the proceedings.

The role of the facilitator overseeing the informal resolution process is equally crucial. Facilitators must not only be impartial but must also be perceived as free of conflicts of interest or biases toward either party. Title IX regulations mandate that facilitators be thoroughly trained in the rules and procedures of the process to ensure their competence. This focus on impartiality fosters a sense of fairness, with the additional requirement that the facilitator cannot serve as the investigator or decision-maker in the formal grievance process. This separation of roles enhances trust and security for both parties.

Finally, informal resolution agreements may include terms such as restrictions on contact between the parties or limitations on the respondent’s participation in specific school programs or events. These restrictions are similar to remedies or disciplinary sanctions that might be imposed if a formal finding of sex discrimination were made, ensuring the agreement effectively addresses the needs of both parties.

In conclusion, while informal resolution provides a flexible alternative for addressing sexual harassment complaints, it is subject to strict regulations to ensure fairness and voluntary participation. Non-compliance with these regulations could lead to legal consequences, jeopardizing the integrity of the process. Schools must adhere to these guidelines to offer a safe and equitable path to resolution under Title IX.