Are Title IX Charges Kept Confidential Or Will Everyone On Campus Know Or Hear About It?
Whether or not Title IX charges are kept confidential is another area under Title IX law where there is no simple answer. However, there is a distinction. Initially, a Title IX accusation will be kept confidential. The school will then follow a procedure to investigate the Title IX complaint. Initially, hat procedure and the complaint itself will be kept confidential. The complaint will be assigned to a Title IX investigator. Then, that Title IX investigator will conduct a preliminary investigation and determine preliminarily whether or not the conduct falls under Title IX and the university’s relationship violence policy.
The investigator will interview the accusing student, commonly referred to as either the “petitioner” or the “claimant.” The accused student is referred to as the respondent. The investigator will review any collaborating evidence the claimant presents, such as texts, pictures, and social media posts. The investigator may also interview witnesses identified by the Claimant. In the overwhelming number of cases, that preliminary determination is made in the affirmative, and the investigator finds that the alleged conduct does fall under the school’s relationship violence policy and Title IX – but not always. At that point, when the investigator determines that the conduct does fall under Title IX, the investigator will meet with the accusing student, again They will tell the claimant, “We believe these falls under the university’s relationship violence policy and Title IX. Do you want to issue a formal complaint?” If the student agrees to issue a formal complaint, they will be told that the complaint can no longer be confidential, and that the student being accused has the due process right to know who is accusing them.
Interestingly, if a student, as a result of that says, “I don’t want to go forward, I don’t want to file a formal complaint,” most schools have a procedure or a vehicle that allows the school to proceed forward against the respondent anyway. If the school goes forward with the formal complaint despite the claimant saying they don’t wish to, the obvious twist or nuance becomes whether or not the school will reveal a claimant’s identity. It seems clear in most cases involved in Title IX due process would require disclosure of that student’s identity, which of course, raises FERPA (Federal Education Rights Privacy Act) considerations. This is because the claimant is saying, “I don’t want a formal complaint filed; I don’t want my name out there.” The school then decides on its own that the matter is severe or egregious enough that even though the claimant doesn’t want us to go forward, they will proceed anyway. The accused student, or respondent, has the due process right to know who accused them.
What Factors Does A School Consider In Weighing The Accused Student’s Request For Confidentiality?
In most cases, the school will honor a student’s request to remain anonymous or confidential until the formal complaint stage. Once the formal complaint is issued, the claimant can no longer stay anonymous because the accused student, the respondent, has a due process right to know claimant’s identity. The claimant typically is asked to sign the formal complaint. In the situation where the claimant says, “I don’t want the school to go forward because I don’t want my identity revealed,” and the school engages in the process of determining whether they’re going to go forward anyway, the factors they would consider in making that determination are as follows: does the respondent have a history of Title IX misconduct; how serious is the accusation involved by this claimant in this particular instance; how egregious is the alleged conduct involved by the respondent, and perhaps most importantly, do they have witnesses and evidence that would allow them to pursue the Title IX investigation and grievance procedure without the claimant’s cooperation? In other words, were there additional eyewitnesses, are there collaborative statements either by way of email, text, social media, are there recordings, is the conduct caught on dorm or apartment complex’s security video camera? If they can make the case out without the claimant’s cooperation and the school determines that the conduct is severe enough or egregious enough by the respondent, they may proceed forward, which again would cause a conflict between the claimant’s FERPA rights to remain anonymous, and the respondent’s due process right to know who it is initially accused them.
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