Alternative Resolutions to Title IX

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A formal investigation is not necessarily the best or only way to resolve your Title IX case. Many schools also offer an “informal” process, also known as alternative resolution (“AR”). AR may be a good fit for you if you are concerned about going to a hearing, hoping for a faster resolution to your case, or interested in an outcome that isn’t offered as part of the formal process. This guide will help you understand what AR options may be available and if they might be right for you.

1.  What is “Alternative Resolution”?

Alternative resolution (AR), also called “early resolution” in some schools, is a way of resolving campus Title IX cases without going through the full formal investigation and hearing process. Historically, many school policies have allowed AR when both parties agree to participate, although some policies discouraged or prohibited certain types of AR (such as face-to-face mediation) for severe sexual misconduct. Under the new federal Title IX regulation effective August 14, 2020, AR—including face-to-face mediation—is available in all cases, regardless of the underlying misconduct.


2.  When in the Title IX process does Alternative Resolution happen?

While it depends on your school’s policy, AR is often available throughout the Title IX process. However, you might find that your—or the Respondent’s—willingness to participate in AR changes at different points in the investigation. The approach of a hearing or seeing the contents of the investigation report might make either one of you feel more (or less) confident about the outcome of a formal adjudication. We’ve even seen cases where a party requests AR moments before the hearing is scheduled to begin.

Just because you request AR does not mean you have to agree to whatever is proposed. No matter who requests AR, you should have the option to return to the formal process at any time before signing an agreement if informal resolution isn’t working.

“For example, many survivors want an apology from the Respondent or for the other party to learn why their behavior was wrong and how to change it.”

Your school’s Title IX policies should explain how to request AR, but typically all it takes is asking the Title IX coordinator or investigator in your case. They will then send the request to the Respondent, and AR will proceed if you both agree to the informal process.

An advisor—such as an attorney or other advocate—can still assist you through the AR process, including by helping you figure out if you want to go to AR in the first place. For this reason, we suggest working with an advisor if you’re able to do so. ERA offers this type of free legal help as part of our ENOUGH program for student survivors. If we’re able to help you, you’ll be paired with a volunteer attorney who can help and advise you through the process.


3.  Isn’t Alternative Resolution just a way for the Respondent to avoid getting in trouble?

While we totally understand where that idea comes from, it’s not quite that simple. We often compare AR to a settlement in a court case—where the person suing and the person being sued come to an agreement before the case gets a chance to go to court. In a formal adjudication—like at a trial—both parties present their side of the incident and a neutral decision maker determines if the alleged conduct likely happened or not. AR is a chance for the parties to avoid the risks and downsides of the formal process and negotiate a resolution that meets both parties’ goals without an official decision being made about what happened one way or another. Depending on what you want from a Title IX investigation, this might feel like a good way to resolve the matter, or it might not; there are a lot of potential pros and cons to AR that we explain in more detail below.


4.  What are some reasons I might choose Alternative Resolution over a formal process?

Unfortunately, many survivors don’t get the outcome they hope for from a formal Title IX adjudication. Even if you feel like you have a strong case, a positive outcome in a Title IX investigation is never a guarantee. The process can end in a finding that the Respondent did not violate school policy, or the sanctions might not be what you hoped for even if the other party is found responsible. (In other words, even if the investigation finds that the Respondent was responsible for what happened, they won’t necessarily be suspended or expelled.)

Even if survivors can achieve the “best” possible outcome through the formal process, we find that such an outcome often does not meet all of our clients’ goals. For example, many survivors want an apology from the Respondent or for the other party to learn why their behavior was wrong and how to change it. Sanctions imposed after a formal process often don’t address these goals. They are usually more focused on separating the parties or punishing the Respondent for violating school policy.

“These types of dialogues should be done carefully, ideally with guidance from experienced transformative and/or restorative justice facilitators.”

Additionally, many survivors’ goals can be achieved without going through the formal process. For example, some survivors want to ensure that the other party cannot contact them or enroll in any of their classes. While this could be achieved through suspension or expulsion after the Respondent is found responsible through the formal process, it can also be achieved through an agreement between the parties and the school, without going through the formal process.

It’s also important to know that the Title IX process can be traumatizing in and of itself, no matter what the outcome is. This is particularly true under the new federal Title IX rule, which requires direct cross-examination by the other party’s advisor. Repeated interviews, the stress of responding to urgent requests from your Title IX office, or any other part of the process that is not trauma-informed can be traumatic for many students. If you are worried about the impact of a hearing on your mental health, or if you’ve already been traumatized by the Title IX process and want it to be over sooner, AR might be a good option for you.

Alternative Resolution is a chance to resolve your Title IX case without the risks and limitations of a formal process. It can be an opportunity to meet some, if not all, of your goals while limiting further trauma and achieving outcomes that would not typically be offered by your school during formal sanctioning. If you have an advisor, they can help you think through what you can hope to achieve through AR that you wouldn’t get through the formal process, and if it is the right choice for you.


5.  Will Alternative Resolution go on a Respondent’s transcript?

In short, no. Because AR does not result in an official finding of responsibility, it will not go on the Respondent’s transcript. However, this is also often true if the Respondent is found responsible through a formal process . A Respondent’s transcript typically won’t include that a Title IX violation occurred; it will only state the discipline for the period it is imposed. For example, a transcript might read “Suspension” but will only appear during the period of suspension. Many survivors mistakenly believe that transcripts reflect that a student was found responsible for sexual misconduct, but that is not the case in most schools. This knowledge may impact your decision regarding how important or useful it feels to go through the formal process.


6.  Can the Respondent be punished through Alternative Resolution?

As mentioned above, it might feel like AR allows respondents to avoid accountability. However, an AR agreement can include terms that create consequences for the misconduct, such as no longer being able to participate in certain extracurriculars or needing to complete a sexual respect and consent course in order to graduate. While this is not the same as formal discipline and may not include an acknowledgement of responsibility, you will still have an opportunity to settle on terms that feel satisfying and give you a sense of closure, including ones that feel like a form of punishment or accountability.


7.  I want the Title IX process to validate what I went through. Won’t I miss out on that if I go to Alternative Resolution?

Some survivors feel very strongly about their Title IX process ending in a finding of responsibility, and may choose to opt out of AR because of this. This is absolutely valid, and only you can decide how important this type of validation is for you. However, remember that the Title IX process isn’t always fair and won’t always achieve your goals. If the Respondent is not found responsible, or if the school does not issue sanctions that are in line with what you want to happen, the formal process might not provide the validation you’re hoping for.

It’s important to understand both the potential risks and rewards of a formal adjudication, including what you can and can’t achieve through that process. Once you have all the information, you can make an informed decision about whether formal or informal resolution is the best choice for you. There is no right or wrong answer.


8.  Will other people—like my friends, family, and classmates—be disappointed or not believe what happened if I choose Alternative Resolution?

When people are applauding you for standing up for yourself by reporting for Title IX, or if you’re not sure they will believe what you went through without an official finding of responsibility from your school, it’s easy to feel like you have to go through the formal adjudication process to prove you’re strong and that your experience was real. This is not true, and anyone who pushes you for these reasons might not understand the possibilities and advantages of Alternative Resolution.

Reaching an AR agreement that achieves your goals can be just as powerful as going to a hearing, if not more so because it focuses on what you want, not what the school (or anyone else) thinks should happen. If anyone questions the validity of your experience without an official finding, you can try explaining to them that negotiating doesn’t work when the other party has no reason to agree to your terms. Ask them: if the Respondent didn’t do this to you, wouldn’t the Respondent feel confident that a hearing would end without consequences and therefore turn down AR? This explanation may somewhat oversimplify things, but it can help get your point across.

At the end of the day, your decision should be based on what process feels best for you. Anyone who loves and supports you should have your back, no matter what you decide.


9.  How do I make the Respondent engage in Alternative Resolution?

Unfortunately, you cannot make the Respondent agree to Alternative Resolution or cooperate with you during an informal process. One disadvantage to AR is that its success depends on how willing the Respondent is to engage in negotiations. If the other party is confident that the Title IX process will end in their favor, they have less reason to entertain an Alternative Resolution that they see as burdensome. That said, remember that the Respondent is the one facing severe sanctions; as long as there’s a possibility they could be suspended or expelled, they are likely to least entertain the possibility of AR.

Note: We advise against mediation as a form of Alternative Resolution in most sexual assault cases. Many schools propose mediation as a form of Alternative Resolution. We do not recommend engaging in mediation that involves confronting your harmer directly, i.e. being in the same room to speak about what happened, because this can be very traumatic and often inflicts more harm on the survivor. Another reason we advise against it is because mediation implies that both sides are in some ways responsible for what happened, and so that is how the mediator will negotiate the resolution. As the person who was harmed, you should be under no pressure to accept any responsibility or consequences for what happened to you.


10.  I might want to go to Alternative Resolution but I’m not sure yet. What shoudl I do?

Because Alternative Resolution is a possibility throughout the Title IX process, it is best to start thinking about it early on. Make sure you have all the information from your school about how both the formal and informal processes work and set your expectations around what you can achieve through both. If you feel ready to make an informed decision but not ready to decide, try listing all of the goals you hope to achieve by reporting, then come up with potential terms based on those. (You can find a list of ideas below.)

You can also make a list of deal-breakers. For example, you might not want to agree to any AR agreement that includes a mutual (as opposed to one-way) No-Contact Order.* You can always add things to the list or take them away later. If you have an advisor, work with them to make this list so that you’re aligned on what you want to happen and so that they can help you think through terms that would support your goals.

  • Tip: We don’t recommend you agree to a mutual no-contact order because it restricts your movement and can subject you to discipline if you are found in violation.

Preparing before AR is on the table can give you more time to process the possibility and decide how you feel about it. It can also help you feel more prepared for a last-minute AR proposal from the other party, and less stressed by a potential negotiation. Some survivors experience trauma symptoms like shut down or panic if they’re forced to make a quick decision about going to AR or the terms it will include; planning ahead may help if this is something you’re concerned about, and will help your advocate negotiate on your behalf if you don’t feel comfortable or able to participate in negotiations.


11.  What should I ask for in an Alternative Resolution?

There is no one-size-fits-all approach to AR – that’s one of the benefits of it. Terms will vary widely based on considerations such as your goals and the relative bargaining power of you and the Respondent. Think creatively and holistically about agreements that will meet your needs, ideally in collaboration with an advisor or support person.

Here are some ideas for terms, broken down by broad goals, to get you started:

Safety and separation:

  • A unilateral (one-way) No-Contact Order, rather than mutual No-Contact Order (against both parties), that includes specific terms such as a required minimum distance between you and the Respondent, protection from digital and third-party communication, instruction that the Respondent will leave a location if you’re both present regardless of who arrived first, and clear consequences for violations.
  • The parties will not enroll in the same classes or extracurricular activities, and you have the right of first selection.
  • The Respondent agrees to stop participating in extracurricular groups that contributed to the incident in some way, such as a fraternity.
  • The parties will not be housed in the same dormitory or building, and the Respondent’s housing will be changed if needed instead of yours.
  • If either or both parties are employed on campus, you will not work in close proximity or report to one another, and the Respondent will not visit your place of employment during your working hours.
  • The Respondent transfers to another school, takes a leave of absence, or attends an abroad or remote program for a set period of time, ideally until you are no longer enrolled. (Don’t forget to consider your postgraduate study plans.)

Accountability or changed behavior by the Respondent:

  • Requiring the Respondent to “successfully” complete a rigorous (12+ week) anger management course, sexual respect and consent course, batterer’s intervention course, and/or a similar educational program.
  • Respondent agrees to engage in individual therapy to address specific concerns such as violent tendencies, anger issues, or sexual respect/consent.
  • The Title IX Coordinator or similar neutral party reads victim and witness impact statements (how the incident has affected you) to the Respondent.
  • Only if you want this: arrange for a private accountability conversation between the parties or a group accountability circle that also includes community members.
    • NOTE: These types of dialogues should be done carefully, ideally with guidance from experienced transformative and/or restorative justice facilitators. Organizations such as RJOY Oakland may be contracted to design and implement effective restorative processes.

School response and policies:

  • School Title IX officials agree to enforce any agreements established through AR (see section on enforcement below for more).
  • School Title IX officials agree to protect you from retaliation. This may include dismissing any pending disciplinary charges against you stemming from the incident, favorably addressing accusations of retaliation against you, and addressing any third-party harassment on behalf of the Respondent.
  • School Title IX officials agree to meet with you and your advocate to discuss any issues that arose during the process and best practices for moving forward. ERA has extensive experience working with schools to modify their policies and practices, and we can potentially help you identify specific changes or issues to raise.

Terms to avoid:

  • Any agreements that would explicitly or effectively discipline you or potentially expose you to future discipline.
  • Any agreements that would force you to change your own schedule, housing, or habits, or restrict your freedom of movement.
  • Any acknowledgement that your allegations were false.
  • A gag order of any kind, including orders that prohibit you from speaking or writing about your experience with the Respondent or during the school process.
  • NOTE: While effective negotiations may require terms that bind you as well as the Respondent (such as a mutual No-Contact Order instead of unilateral one), such terms should be limited as much as possible to avoid improperly infringing on your rights (e,g. while both parties agree not to contact each other, only the Respondent is prohibited from talking about their experience with you to third parties).

12.  What are the enforcement mechanisms for Alternative Resolution?

Enforcement will vary depending on the terms of the agreement and the school, but some ways you could ask the school to enforce your Alternative Resolution agreements include:

  • Enforcement by campus police: violation is a campus safety issue;
  • Enforcement by the Title IX or Student Conduct office: violation is a disciplinary issue;
  • Proof of the Respondent’s compliance is required to remain in “good standing”: standing affects their eligibility to register for classes and graduate (e.g. proof of completion of an anger management course must be submitted to the Title IX office by a certain date in order for the Respondent to enroll next semester);
  • Relevant offices should be informed of terms that they could be responsible for enforcing (for example, the Registrar’s office should be informed if they need to schedule the Respondent’s class registration window after yours).

AR can be a beneficial way to achieve some, if not all, of your goals, and secure an agreement not available in the formal Title IX process. Even if AR ultimately proves unsuccessful, the fact that you can choose to return to the formal process at any point means that attempting to reach an informal resolution through AR has essentially no risks with potentially high rewards. No matter what path you choose, your experience and concerns are valid and we believe you.

 

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