Notice of Sexual Assault and Signing Formal Complaint

The Title IX regulations direct recipients to respond promptly to each instance of notice of sexual harassment (or allegations of sexual harassment) in the recipient’s education program or activity, against a person in the United States, by taking specific, required actions such as:

• offering supportive measures to the complainant;
• promptly contacting the complainant to discuss the availability of supportive measures as defined in § 106.30;
• considering the complainant’s wishes with respect to supportive measures;
• informing the complainant of the availability of supportive measures with or without the filing of a formal complaint; and
• if a formal complaint is filed, following a grievance process that complies with § 106.45. See 34 C.F.R. §§ 106.44(a), 106.44(b)(1).

These obligations must be met in order for a recipient’s response to comply with Title IX. Additionally, the deliberate indifference standard for judging a recipient’s response may require the school to take actions that are not specifically listed as mandatory response obligations. For example, depending on the specific facts of a situation, it may be “clearly unreasonable in light of the known circumstances” for a Title IX Coordinator not to sign a formal complaint even after having discussed the complainant’s wishes and understanding that the complainant does not wish to file a formal complaint. The Department understands that deciding how to exercise discretion in each factual circumstance may be challenging, but the purpose is to give recipients flexibility to respond appropriately to each situation, so that the regulations neither automatically override the wishes of a complainant, nor restrict a recipient from investigating when specific circumstances dictate that an investigation is warranted.

In the Preamble to the regulations at 30134-30135, the Department explains: While it is true that school administrators other than the Title IX Coordinator may have significant interests in ensuring that the recipient investigate potential violations of school policy, for reasons explained above, the decision to initiate a grievance process in situations where the complainant does not want an investigation or where the complainant intends not to participate should be made thoughtfully and intentionally, taking into account the circumstances of the situation including the reasons why the complainant wants or does not want the recipient to investigate. The Title IX Coordinator is trained with special responsibilities that involve interacting with complainants, making the Title IX Coordinator the appropriate person to decide to initiate a grievance process on behalf of the recipient. Other school administrators may report sexual harassment incidents to the Title IX Coordinator, and may express to the Title IX Coordinator reasons why the administrator believes that an 4 investigation is warranted, but the decision to initiate a grievance process is one that the Title IX Coordinator must make. . . . In order to ensure that a recipient has discretion to investigate and adjudicate allegations of sexual harassment even without the participation of a complainant, in situations where a grievance process is warranted, the final regulations leave that decision in the discretion of the recipient’s Title IX Coordinator. However, deciding that allegations warrant an investigation does not necessarily show bias or prejudgment of the facts for or against the complainant or respondent. The definition of conduct that could constitute sexual harassment, and the conditions necessitating a recipient’s response to sexual harassment allegations, are sufficiently clear that a Title IX Coordinator may determine that a fair, impartial investigation is objectively warranted as part of a recipient’s non-deliberately indifferent response, without prejudging whether alleged facts are true or not. Even where the Title IX Coordinator is also the investigator, the Title IX Coordinator must be trained to serve impartially, and the Title IX Coordinator does not lose impartiality solely due to signing a formal complaint on the recipient’s behalf.