Below is the abstract for “Designing Informal Mechanisms for Claims of Campus Sexual Misconduct,” available for download on SSRN.
Recently, federal guidance for handling [sexual misconduct Title IX these cases] transitioned from a purely investigative and punishment model to include the use of informal resolution mechanisms, such as mediation, facilitated conversations, and restorative justice. In 2017, the U.S. Department of Education’s Office for Civil Rights (OCR) released the 2017 Questions & Answers guidance document allowing the use of mediation for handling instances of sexual assault, and an American Bar Association Task Force encouraged schools to consider restorative justice and other non-mediation alternatives to traditional adjudication. The very next year, the Notice of Proposed Rulemaking permitted the informal resolution of a Title IX complaint at any point prior to reaching a responsibility determination. In taking this action, the Department of Education declared that it is “important to take into account the needs of the parties involved in each case, some of whom may prefer not to go through a formal complaint process.” The use of informal resolution is allowed and further prescribed under the final rule.
These developments represent a sea change in campus approaches to Title IX claims. In the past, university counsel often stopped the use of informal mechanisms out of fear of violating federal guidance, preventing staff from facilitating any meeting between a complainant and respondent outside of a formal hearing. It is true that informal mechanisms can have negative repercussions, such as: hurting the transparency of how complaints are handled, lessening the consequences of committing misconduct, and influencing administrators concerned about liability to pressure survivors and alleged perpetrators to bypass formal processes. For example, a 2010 Center for Public Integrity report on campus complaints of sexual assault described how some students were “pressure[d]” to “mediate.” At the same time, informal processes may provide more humane options for survivors, offer restorative possibilities for perpetrators and community members, and save money and time in reduced investigations and shortened proceedings. In any event, given that no one-size-fits-all approach will work for every complaint, universities need multiple avenues for reporting and handling complaints. It is worth considering how to capture the benefits of informal resolution processes in Title IX contexts, while mitigating the downsides and risks that such processes may present.
With the new Biden administration, more changes may be coming and the current guidance around formal informal processes may change. In the meantime, universities would do well to evaluate their existing approach to Title IX claims and consider the possible benefits of informal resolution. This article provides ten guidelines for developing informal mechanisms for sexual misconduct claims using a “dispute systems design” (DSD) analytical framework: an interest-based design process that includes the expected users of the system as a means to ensure the system meets the needs of those who will be using it.