Title IX of the Education Amendments of 1972 (“Title IX”) requires higher education institutions to take affirmative steps to investigate and remediate sexual harassment (including sexual violence) that occurs within the institutional community. As the U.S. Department of Education’s Office for Civil Rights (“OCR”) explained in its April 4, 2011 Dear Colleague Letter, “a school that knows, or reasonably should know, about possible harassment must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.” At the same time, however, OCR has urged institutions to “obtain consent from the [potential victim]… before beginning an investigation,” and that an institution should give substantial, although not complete, deference to a potential victim’s expressed desire that a complaint not be pursued. Deciding what to do in a situation such as this, where a school knows of possible harassment, but the potential victim does not wish for there to be further action, is perhaps the most challenging situation Title IX administrators face.

Situations like this present two competing concerns. On the one hand, colleges and universities have an interest in protecting their communities as a whole, and allowing potential harassment to go unaddressed due to a potential victim’s wishes could threaten the safety of the broader community. On the other hand, there is an important interest in vesting the potential victim with some control over his or her situation and not insisting on action that will cause the potential victim more trauma than he or she has already suffered.

OCR has advised that resolving these competing concerns means evaluating a variety of factors to determine whether the institution’s broader interest in eliminating harassment should outweigh a potential victim’s desire not to proceed. Specifically, OCR’s April 29, 2014 Questions and Answers on Title IX and Sexual Violence indicates that colleges and university should consider:

  • whether there have been other sexual violence complaints about the accused;
  • whether the accused has a history of arrests or records from a prior school indicating a history of violence;
  • whether the accused threatened further sexual violence or other violence against the reporting student or others;
  • whether the sexual violence was committed by multiple perpetrators;
  • whether the student’s report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group;
  • whether the sexual violence was perpetrated with a weapon;
  • the age of the student allegedly subjected to the sexual violence; and
  • whether the school possesses other means to obtain relevant evidence.

While these factors are not exhaustive, and there is no black letter rule, where a report implicates repeated, severe sexual harassment (such as a report of multiple sexual assaults), the institution’s interest in protecting the community at large may well outweigh a potential victim’s desire not to proceed. In such situations, the institution may proceed with an investigation and discipline process as best it can, given the potential victim’s unwillingness to cooperate.

On the other hand, where a report indicates less severe harassment of a singular nature (such as an isolated report of an unwelcome sexual joke), a potential victim’s interest will likely carry the day. While its responses may be limited in a situation where it decides not to proceed with an investigation and discipline, an institution should still consider whether it can provide remediation to the potential victim (by way of counseling, accommodations, or otherwise) and broader training to the community in such a way as not to reveal identifying information about the potential victim.

In any event, it is keenly important that Title IX coordinators (or their deputies) document their decision in these types of cases, including specifically noting those factors that determined the school’s decision to proceed with an investigation, or not, as the case may be. Such documentation is invaluable if the institution is subsequently investigated by OCR or if the potential victim or others later claim the institution failed to meet its obligations.

Further, it is important for schools to inform their students, by explicit language in their Title IX policy and through training, that the institution reserves the right to move forward with an investigation even when a potential victim wishes not to or requests his or her name not be revealed to the accused.

What This Means To You

College and university Title IX coordinators and other administrators with Title IX responsibilities should asses their institution’s policies, procedures, and practices to ensure the institution adequately weighs the factors identified above and creates adequate documentation of the institution’s decision. In difficult cases involving serious allegations and a reluctant potential victim, schools should consult with higher education legal counsel as they formulate a plan of action.