Tales from Title IX Risk Management: Non-Linear Problem-Solving

By: Brett A. Sokolow, J.D

The Title IX risk management space is complex and ever-changing. As such, TNG and ATIXA continue to leverage a non-linear approach to problem-solving to provide the best possible outcomes for our clients and members.

In a recent case, six students brought forward complaints of sexual assault and harassment involving two student respondents. In some of the allegations, the respondents acted separately, and in some, their misconduct was alleged to have occurred in concert. Respondent A faced two allegations that Respondent B also faced, from the same two complainants. Respondent B faced six allegations in total, from five different complainants, including the two that overlapped with the allegations involving Respondent A.

This presented a logistical nightmare for the university which received the complaints, all of which fell within Title IX. The university determined to investigate all allegations at once, because of both the overlap and the potential for pattern behavior. Upon notice of the allegations, Respondent A withdrew from the university, leaving only the allegations involving Respondent B to be managed. All complainants elected for formal resolutions, and with the 2020 regulations, all complaints went forward, regardless of their strength. This is one of the significant flaws of the 2020 regulations. Previously, schools and universities could make “reasonable cause” determinations on whether an investigation indicated a potential policy violation. Those that evidenced reasonable cause made it to the next round of the process (usually a hearing), while those that did not were dismissed early on, referred for informal resolution, or addressed through support and remedies, but not formal discipline for the respondent. Under the 2020 regulations, no matter the strength or weakness of the allegations, if they are facially plausible, once the formal process is initiated, an investigation and a live hearing will follow.

That presented several challenges in this case. All five of the complainants had very different allegations about Respondent B. While all allegations were within the same theme of abuse and disrespect toward people based on sex, this was not a case of an obvious pattern, such as where all allegations were of sexual assault. The complainants also did not line up with any particular pattern, such as why they were targeted. All the complainants knew of each other, and in fact, had coalesced around Complainant #4 who was outspoken about what happened. The other complainants came forward once Complainant #4 shared with them what happened with Respondent B.

In the university’s approach to the investigation, each complainant was numbered based on when the alleged misconduct occurred, rather than when the complainants came forward, as they reported the misconduct at about the same time, sometimes coming together to the Title IX office to do so. The complainants were in solidarity, insistent on expulsion for Respondent B, and active within campus leadership roles and social media. Meaning, the student body was aware of a potential sexual predator. As a result, Respondent B was required to complete classes remotely, though for some portions of the semester that was true for all students as the result of the pandemic.

As the investigations unfolded, two things became clear. First, separate hearings were going to be necessary for each complainant. Otherwise, the piling-on effect might cause outcomes biased against the respondent. Combining the complaints into one hearing would be logical in a case of obvious patterns, but this one was somewhat unique. The pattern was the involvement of Respondent B, but the alleged misconduct of Respondent B was not obviously a pattern across all complainants. Thus, the separate hearings strategy was determined to be best.

Second, the investigation led the university to suspect that Complainant #4’s allegations were significantly weaker and would be harder to prove than the other Complainants, for a variety of reasons. This added complexity because Complainant #4 was the ringleader of all complaints, was the public face of this series of incidents within the campus community, and because the university expected that all complainants would be communicating their outcomes to each other.

What would happen if four complaints led to a finding of policy violations, but one did not? How would Complainant #4 feel if the university rejected their complaint despite upholding the others? Under the approach taken pre-regulations, Complainant #4’s allegations would not have met the “reasonable cause” standard to proceed. Worse, with the new requirements for sharing the rationale of the hearing decision, Complainant #4 would be told that their credibility was the main reason for the inability to find a policy violation based on their allegations. A tough road was ahead. What if Complainant #4 went public? Talked to the press? Undermined the confidence of the campus community in the integrity of the Title IX resolution process? The university faced the risk of a Title IX complaint, a lawsuit, adverse publicity, and maybe even a wave of student activism and protests. All really because the 2020 regulations required the university to pursue a complaint that would likely have been dismissed prior to a hearing, otherwise. We girded ourselves for these potential outcomes.

TNG, as Title IX counsel to the university, worked closely with the investigators and hearing officers at every step of this complex process. We’ve managed more complex cases than this, but this one had as many moving parts as anything we had seen. It made logical sense to us that as we ordered the hearings for all complaints, we should do so sequentially based on the timing of the incidents. Thus, the hearings would flow from Complainant #1 through Complainant #5, in that order. The hearings were spread over a period of time, and as they were conducted, the hearing officers started to share their decisions and rationales with the Title IX office, and with TNG as counsel. The first three findings were all decisions that a policy violation had occurred. The first two allegations were of lesser severity compared to the latter three allegations. The third complaint was an expulsion-level offense. When I received the third outcome letter, it found Respondent B in violation and recommended expulsion, a strategy occurred to me that would help the university to manage the risk of the problematic outcome that was likely coming for Complainant #4.

My thought was that since expulsion was likely the result of the third hearing, the university would no longer have jurisdiction over Respondent B. Thus, any further processing of complaints #4 and #5 would be moot. University policy supported this interpretation. If someone was no longer a student, they were not subject to the university discipline system any longer. I checked in with the hearing officers, who were backed up with outcome letters at the end of a semester, and it seemed the timing would cooperate as well. No letter of outcome on complaints #4 and #5 would issue before complaint #3 was finally resolved. The university issued the findings for Complaints #1-3. Respondent B timely appealed all three outcomes. The appeals were denied on the basis that the grounds were not met. Respondent B’s appeal was really an appeal of the expulsion sanction, and this university did not permit appeals based on sanction, in conformity with the 2020 Title IX regulations.

As a result, the expulsion took effect. Touching base with the hearing officers, the results were as we suspected they would be. Complaint #4 was heading toward a finding of no violation, while #5 would likely have again resulted in (another) expulsion. The university then instructed the hearing officers for complaints #4 and #5 to cease further action on the hearing outcomes, given that the university no longer had jurisdiction over Respondent B. Complainants #4 and #5 were provided with outcome letters that were likely unsatisfying because they did not resolve the allegations. Instead, the complainants were thanked for their courage in coming forward, and the university expressed sympathy with how difficult the hearings must have been for them. We acknowledged that they wanted and needed closure, but because of the sequential nature of the hearings, the respondent had been expelled before a final determination had been filed on either of their complaints. Thus, the process needed to end. This was 100% true and also happened to be very convenient for the university.

The university shared the outcome of complaint #3 with both Complainants #4 and #5, as we were permitted to by an exception to FERPA. We shared with them that Respondent B would never be able to set foot on university property again or attend university activities. We shared with them that this result could be made public, if they wished. We summed up by conveying that the outcome of complaint #3 managed to remedy any hostile environment caused to them by Respondent B without making a finding, and of course offered the complainants continued supportive measures and resources from the university as necessary.

While it was clear that Complainant #4 wanted a final determination, and was disappointed not to get one, the university’s strategy was effective. The complainants were all protected. The respondent was removed from the community. The process was followed. The university’s approach avoided public attack and a potential loss of student confidence. There were those internally who felt strongly that the university should have completed the decisions on complaints #4 and #5, but TNG believes that doing so would likely have resulted in more harm than good. Why add trauma and further hurt to the already difficult road that Complainant #4 had experienced? Why court a lawsuit from the respondent?

“First do no harm…” may be a talisman of the practice of modern medicine, but it’s also a guiding precept for the ways that colleges should manage Title IX proceedings. Perhaps some of the university administrators suspected that TNG had from the start suggested an order of hearings that would enable this particular outcome.

Learn more about TNG’s Title IX risk management and consulting services: https://www.tngconsulting.com/consulting/title-ix/