Language Has a Significant Impact When Dismissing a Formal Complaint
The Title IX Regulations are prescriptive regarding the situations in which a Formal Complaint MUST or MAY be dismissed. Sections 106.45(3)(i) and (ii) specifically define the provisions of such dismissals in the following manner:
Mandatory dismissal of a Formal Complaint or allegations within the Formal Complaint MUST occur if:
1) the conduct alleged in the Formal Complaint would not constitute sexual harassment as defined in § 106.30 even if proved;
2) the conduct did not occur in the recipient’s education program or activity; or
3) the conduct did not occur against a person in the United States.
Permissive dismissal of a Formal Complaint or allegations within the Formal Complaint MAY occur if:
1) a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;
2) the Respondent is no longer enrolled or employed by the recipient; or
3) specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
However, the practical application of such a dismissal is not quite so simple for the parties involved. The term “dismissal” can sound harsh or defeating to Complainants and encouraging or victorious to Respondents. In reality, this term is often a formality in the process and will not result in a complete “dismissal” of the matter. It is clear that in many cases, the dismissal of a Formal Complaint will merely result in a redirect from one policy/process (Title IX) to another (Code of Conduct or Non Title IX Sexual Misconduct).
The language used both in person and in writing to explain the transfer from one process to another is vitally important. A little finesse in the communication goes a long way when setting the tone and managing expectations. For example, leading an email or conversation with the statement, “The Formal Complaint has been dismissed” may cause both parties to stop reading and get excited (Respondent) or infuriated (Complainant).
Conversely, beginning the dismissal conversation (and/or email) with a reminder that the institution or district takes matters of reported Sexual Harassment seriously, followed by the name of the individual and office where the matter has been referred BEFORE using the term “dismissal” can set the stage for a better understanding of the process. This little tweak will hopefully provide more trust and awareness from the parties as the matter progresses, while limiting the number of appeals based on the sheer shock of the term “dismissal” without a full understanding of the path forward.
In short, we must set the stage for the parties in the Title IX process. This cannot be achieved through flowcharts alone (though I love a good flowchart). We must use clear, direct, kind, and transparent language. For those of us who “speak” Title IX on a daily basis, this often requires having a non-Title IX colleague proof an email or listen to our verbal explanation of the process to ensure that we are using language that makes sense to someone who is unfamiliar with the policy/process.
This work is hard and can be exhausting, but the little things matter, especially when communicating about the process.