Can gossip that one student sexually assaulted another in a dorm trigger a Title IX investigation? Can a school conduct a Title IX investigation even if the affected student chooses not to file a complaint? The answer to both questions is yes. Every year, we handle cases in which Title IX coordinators sign Title IX complaints in response to rumors, the existence of outside legal proceedings and, sometimes, even against the wishes of the affected student. In our years of experience representing students, we regularly encounter cases that involve variations of the following scenarios.
Common Scenarios That Lead to Coordinator-Signed Complaints
The Report of Rumors
Student A tells Student B that she was sexually assaulted by John Doe. Student B then submits a report to the campus Title IX office in which Student B shares what she heard about the sexual encounter, along with the fact that other students have also expressed feeling “uncomfortable” around John Doe. After receiving the report, the Title IX coordinator reaches out to Student A. Student A explains that she does not want to sign a complaint; she just wants the school to issue a no-contact order instructing John Doe to stay away from her. The Title IX coordinator then signs a Title IX complaint identifying Student A as the complainant, and an investigation follows.
Civil Protection Orders
Student A and John Doe had a sexual encounter. Within a week of the sexual encounter, Student A goes to the local courthouse and submits a petition for a protection order. The court issues an ex parte order (meaning the court heard only from Student A) and then sets the matter for a full evidentiary hearing where John Doe will have the opportunity to present evidence and oppose the order. The local police receive notice of the ex parte protection order and communicate with campus police about the order. Campus police then notify the Title IX office of the order. The Title IX coordinator signs a Title IX complaint triggering a Title IX investigation. The Title IX investigation proceeds more quickly than the court proceeding. John Doe struggles to decide whether to participate in the Title IX investigation out of concern that his statements in the campus proceeding could be turned over as evidence in a court proceeding.
The Coach or Advisor Who Reports
Student A and John Doe had a sexual encounter a year ago. Student A feels that John Doe exceeded the consent provided during the sexual encounter. During a casual conversation with a soccer coach, Student A mentions that from time to time, she thinks about her experience with John Doe and how he took advantage of her. The soccer coach submits a report to the Title IX coordinator. Although Student A does not want a Title IX investigation, the Title IX coordinator signs a Title IX complaint, and an investigation follows.
The Complainant Who Participates Without Signing a Complaint
Student A is wrestling with mixed emotions about a sexual encounter with John Doe. She meets with the Title IX coordinator over the span of several weeks as she decides whether she wants to sign a complaint. Student A eventually decides that although she does not want to sign a Title IX complaint against John Doe, she will participate in an investigation. Student A agrees to be interviewed twice, and she provides her text messages with John Doe.
What the Law Requires
What Counts as Actual Knowledge
Students and parents alike are often stunned to learn just how little is required before a Title IX coordinator can sign a complaint and initiate an investigation. Even more surprising is the fact that Title IX coordinators have discretion to make decisions independent of what an affected student may want to happen. The law allows a Title IX coordinator to sign a Title IX complaint regardless of the wishes of the person on the receiving end of the conduct in question if the Title IX coordinator has “actual knowledge” of sexual assault or harassment. Actual knowledge is nothing more than “notice of sexual harassment or allegations of sexual harassment” to a Title IX coordinator, and the law does not delve into specifics about what form the notice must take. Title IX coordinators have discretion because the law requires schools to act without deliberate indifference to sexual assault and harassment.
How Coordinators Decide Whether to Proceed
After receiving notice of sexual harassment, a Title IX coordinator’s response can vary depending on the circumstances and available information. If the Title IX coordinator receives the name of the affected student, the Title IX coordinator must promptly contact the student to discuss supportive measures and explain the process for filing a formal Title IX complaint, among other requirements. Even if the student who experienced the harm does not want to proceed with signing a Title IX complaint, a Title IX coordinator can still independently sign a complaint when, for instance, there is a concern for campus safety. While the Title IX regulations do not establish a list of factors for review by Title IX coordinators, common considerations include whether there is an allegation of a pattern of behavior by the accused student, whether weapons were involved, and whether the situation raises concerns about ongoing violence.
What Happens to the Complainant
If a Title IX coordinator decides to sign a complaint, the affected student will be labeled a complainant, not the Title IX coordinator, and the student’s identity will be provided in the notice of investigation that the accused student receives. Under the law, a complainant cannot remain anonymous. Furthermore, even if a complainant did not sign a Title IX complaint, that person still receives all the rights and protections afforded to students who do sign a formal Title IX complaint. The student will have the ability to review the evidence gathered in the investigation and submit a response, participate in a hearing, and have an advisor conduct cross-examination on the student’s behalf.
Why Early Decisions Matter
Overall, Title IX coordinators have broad discretion to sign complaints when they believe it’s appropriate to do so. For the complainant, the Title IX coordinator’s decision can mean that the student ends up participating in an investigation that the student did not choose and never wanted. For the accused student, the Title IX coordinator’s decision can mean that the student is forced to defend against allegations that no one ever filed. This scenario becomes particularly difficult because it often strips the accused student of the ability to explore informal resolution of the case.
The bottom line is that early decisions about whether to file a complaint and how to participate in an investigation are significant for both complainants and accused students. Students should seek advice from experienced counsel to fully understand their options and the implications of their choices.