Title IX was introduced in 1971 as a proposed amendment to the Education Amendments of 1971 and was subsequently codified at 20 U.S.C. §§ 1681–1688.8 The principal purpose of Title IX is set out in U.S.C. § 1681:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
When the legislation was passed, public attention was centered on the effect Title IX would have on varsity sports, and until recently, the majority of Title IX litigation was centered on athletics. However, the number of sexual harassment claims filed under Title IX has increased significantly. There are 429 active Title IX investigations at elementary-secondary and post-secondary schools that pertain to allegations of sexual violence, according to the Department of Education (as of April 13, 2023), and 429 that pertain to allegations of sexual harassment. This is around double the number of pending Title IX claims related to athletics (118). Recent regulatory changes propose “informal resolution” of Title IX claims.
Robert Louis Stevenson famously quipped that “compromise is the best and cheapest lawyer.” This article explores the issues generated by this concept. Is compromise in this context the best method of resolution? Will this turn into a mandatory private dispute resolution process? We see a move away from mandatory arbitration of harassment cases in the employment context. Is a resolution system that emphasizes compromise and reconciliation the most appropriate means of addressing such a prevalent problem?
On May 26, 2020, the U.S. Department of Education released its most recent regulations pertaining to Title IX. Section 106.45(b)(9) of the final regulations explicitly permits “informal resolution” of all Title IX investigations initiated by a college or university system with the voluntary, informed, and written consent of the parties. This was a marked departure from previous administrations’ positions on informal resolutions for Title IX investigations. The Department of Education’s Office for Civil Rights (OCR) discouraged schools from using mediation (or other informal resolution) to resolve sexual assault allegations in both its 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties and its 2011 Dear Colleague Letter, which has since been rescinded. OCR's 2017 Q&A on campus Sexual Misconduct permitted informal resolution, but unlike section 106.45(b)(9)(iii), it did not prohibit informal resolution of allegations that an employee sexually harassed a student.
Currently, 34 C.F.R. § 106.45(b)(2)(A) requires an institution, upon receipt of a formal complaint, to provide written notice of any informal resolution process to the known parties. That section also requires a recipient (namely, the institution that received the formal complaint) to provide a written notice to the parties disclosing the allegations; the requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations; the right of any party to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, at any time prior to agreeing to a resolution; and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
OCR recently proposed further amendments to Title IX regulations (Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance). However, importantly, OCR advocated for preserving the requirement that an institution, upon receipt of a formal complaint, must provide written notice of any informal resolution process to the parties who are known. OCR reasoned that the institution is in the best position to determine whether an informal resolution process would be a potential good fit for the facts and circumstances of a particular complaint, subject to the specific parameters described in the proposed regulation. OCR noted that, whatever a recipient decides, the recipient must treat similar complaints similarly, consistent with its obligations under Title IX and other applicable federal nondiscrimination laws.
What Forms of ADR Are Available?
An informal resolution process is not a fact-finding, investigative process to reach a determination about whether sex discrimination occurred (in contrast to the grievance procedures, which are intended to initiate a fact-finding inquiry). Instead, it is an alternative avenue through which parties may agree to a resolution of the complaint. Under the current regulations, “a recipient may not require the parties to participate in an informal resolution process under this section and may not offer an informal resolution process unless a formal complaint is filed[,]” but “at any time prior to reaching a determination regarding responsibility the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication[.]” The regulations specifically mention mediation as a potential alternative dispute resolution (ADR) method, but the phrase “or other informal resolution” suggests that other methods of ADR are permitted. These include the negotiation of a binding agreement by the parties with or without a mediator, an admission by the accused party of responsibility for the party’s actions and willingness to accept specified sanctions, and agreement to a binding document written by the institution as an author. However, institutions may not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student due to the power imbalance between the two participants.
Is ADR Appropriate for Title IX Cases?
The provision for ADR was introduced in part because some research suggests that victims of sexual harassment in the context of higher education often prefer an informal resolution, as opposed to an overly legalistic one. According to Adam Laytham in his article entitled “Mediation and Misconduct: A Better Way to Resolve Title IX Disputes” (2020 J. Disp. Resol., no. 1), mediation is an often-overlooked option for the resolution of Title IX disputes. Laytham states that “while many universities allow mediation, the practice is generally disfavored because it is perceived as likely to cause the victim of a Title IX offense greater harm than alternative processes.” There are arguments that, in Title IX cases concerning sexual harassment, informal resolutions reduce discriminatory (and potentially dangerous) behavior to “a dispute between students” and would not form enough of a deterrent. Further, though the regulations prohibit the use of ADR to resolve allegations that an employee sexually harassed a student due to the power imbalance between the two participants, the regulations ignore the inherent power imbalance between the perpetrator of sexual assault and the victim. Current research indicates that sexual violence at higher education institutions disproportionately affects female students (an 18-month-long investigation by USA Today found that 1 in 5 female students experience sexual assault in college, compared with 1 in 16 male students). Mediation’s emphasis on compromise and agreement could be viewed as further reducing victims’ sense of control—forgiveness has historically been weaponized in order to re-victimize female survivors of sexual assault.
However, there is an equally compelling argument that mediation can be a beneficial and productive exercise in resolving conflict in Title IX disputes primarily because the resolution is designed by the disputing parties themselves. Research shows that when parties design their own resolutions to disputes, they are more likely to adhere to the terms of the agreements. Survivors of sexual assaults frequently report that one of the most difficult psychological scars they bear is the lack of control. Laytham argues that “[f]orcing adjudication or other similar Title IX proceedings limits the options of victims,” whereas “giving survivors of sexual assault or harassment the option to mediate empowers them to choose the remedy that best suits their individual needs[.]” Furthermore, using mediation in Title IX disputes has the potential to reduce secondary victimization for victims of sexual assault. Secondary victimization is generally considered in a criminal justice context and linked to prosecutorial conduct, but the same potential for additional harm is present in a Title IX setting. In mediation, victims can exit the process at any time and retain the ability to choose their remedies. In addition, there are strict requirements in 34 C.F.R. § 106.45(b)(1)(iii) for informal resolution facilitators in Title IX disputes to ensure that they remain independent, neutral, and objective: They must not have any conflicts of interest, they must not have any bias for or against complainants or respondents generally or an individual complainant or respondent, and they must avoid prejudgment of the facts at issue.
Horses for Courses
Under 34 C.F.R. § 106.30(a), the definition of “sexual harassment” is breathtakingly broad: It is defined as conduct on the basis of sex that satisfies one or more of the following:
- An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
- "Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
It is inconceivable that a single process would be appropriate for the litany of forms of sexual discrimination outlined in the above definition. The current regulations allow for a relatively flexible range of options to resolve claims brought under Title IX, and this reflects the wide-ranging nature of the claims themselves. It is encouraging to see that the Department of Education, for now, endorses the use of ADR for the majority of Title IX claims so that participants who wish to have more control over how their claims are resolved may do so. After all, in the words of Gloria Steinem, if the shoe doesn’t fit, must we change the foot?