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Withdrawing a Complaint (Response 1/19/2021)

Filed Under: Appeals
Question:

Suppose that a complainant files a formal complaint (let’s say online), but then realizes she cannot be anonymous and asks to withdraw the complaint. Can she? Or must she request a dismissal from the Title IX office?

Answer:

Thank you for your question regarding Title IX. OCR’s OPEN Center is pleased to respond. All references and citations are to the official version of the final regulations published in the Federal Register which is available here. A link to the unofficial version of the regulations is available here.

34 C.F.R. § 106.45(b)(3)(ii) allows the recipient, in its discretion, to dismiss a formal complaint if the complainant notifies the Title IX Coordinator in writing that the complainant wishes to withdraw it, if the respondent is no longer enrolled or employed by the recipient, or if specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination. The complainant’s written request to withdraw the complaint will trigger dismissal by the recipient.

However, the deliberate indifference standard for judging a school’s response may require the school to take actions notwithstanding the complainant’s request for a withdrawal. 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 wishes to withdraw a formal complaint. We understand that deciding how to exercise discretion in each factual circumstance may be challenging, but the purpose is to give schools flexibility to respond appropriately to each situation, so that the regulation neither automatically overrides the wishes of a complainant, nor restricts a school from investigating when specific circumstances dictate that an investigation is warranted.

In the preamble to the regulations at page 30134, 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 investigation is warranted, but the decision to initiate a grievance process is one that the Title IX Coordinator must make …

Please also see the discussion by the Department at pages 30128-29.

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