Every report of possible sexual harassment must be investigated and responded to, but not every report will produce a “Formal Complaint.” Let’s consider a hypothetical.
Mom contacts the principal of the middle school to report that her daughter, Jane Doe, is being harassed by other students and particularly by members of the band. She says she has spoken to the band director and felt that she got the brush off. Jane reports that much of the harassment is sexual in nature, including not just name calling, but the spreading of ugly rumors and even some unwelcome touching of her body. The principal assures mom that she will look into this and take appropriate action. The principal immediately notifies the district’s Title IX Coordinator (T9C).
The T9C promptly contacts the mother and, among other things, informs her that the district has a “Formal Complaint” process. The Coordinator explains how that process works, that it is not something the mother has to initiate, that the district will investigate and take appropriate action whether a Formal Complaint is filed or not; and that the preference of the mother will be taken into account. The T9C also offers mom and the student “supportive measures” which are designed to ensure equal access to educational opportunities. This might mean counseling, maybe a schedule change or some other form of support. “Supportive measures” are defined as non-punitive, non-disciplinary. Mom wants some of those “supportive measures” but does not want to initiate the Formal Complaint process. It all sounds too complicated, lengthy, and legalistic. She says “I just want you to know about this, and to do something to protect my daughter.”
What then? The new Title IX regulations, set to go into effect on August 14th, require the T9C to “consider” the preferences of the “complainant.” If the complainant wants to initiate the Formal Complaint process, the T9C should facilitate that. But if the complainant does not want to make a Formal Complaint, the T9C may do so anyway. The wishes of the complainant must be considered, but the T9C has the authority to file a Formal Complaint even when the complainant does not want that done.
We don’t have room here at the Daily Dawg to give you a full rundown on how the Formal Complaint process works, but suffice it to say that it is as formal as Fred Astaire in a tuxedo, as lengthy as July, and as legalistic as the instructions for IRS Tax Forms. In an effort to make sure that the parties are treated equally, that the presumption of innocence is respected, and that due process is provided, the regulations micromanage this process in ways that will frustrate T9C coordinators and other district decision makers. It will also open the door to endless lawyerly arguments over process.
The Department of Education acknowledges that the Formal Complaint process will be time consuming and costly, but it predicts that there will be fewer such complaints than we have had in the past. We shall see.
DAWG BONE: NEW VOCABULARY: “FORMAL COMPLAINT”
Tomorrow: Been watching “Mrs. America”?