Expanded Options for an Informal Resolution to Accusations of Sexual Misconduct

Mar. 25, 2021 By Andrew Miltenberg

Whenever one student accuses another of sexual assault or other sexual misconduct, Title IX requires their educational institution to act promptly to protect their right to an education. In many cases, that action takes the form of a disciplinary hearing. In others, all parties may exercise their right to another option: an informal resolution.

Updates to Title IX regulations in recent years brought a mix of criticism and praise, but from the perspective of Andrew T. Miltenberg, an attorney who’s handled hundreds of cases involving Title IX disciplinary action, there are positive changes for both victims and the accused. Among them are relaxed requirements to resolve the conflict informally, without hearings or a potentially life-changing formal decision.

Under older federal rules, informal resolutions were only offered when accusations did not include a penetrative act – even when both parties expressed a preference for mediation over disciplinary proceedings.

“The school had an obligation to go through the process and find someone responsible,” Miltenberg says. “With the new guidance, parties should be offered an opportunity for informal resolutions in all circumstances.”

Informal resolutions are primarily focused on minimizing contact between the accuser and the accused. Both students may accept restrictions on travel across campus, as well as at off-campus locations such as fraternity or sorority houses. Additionally, the accused may be asked to undergo counseling, participate in community service, or take part in some other learning experience.

Informal resolutions provide a positive way to meet the needs of both parties without punitive consequences. “There’s no finding that someone did anything wrong,” Miltenberg explains.

The outcome of an informal resolution is usually considered final and does not become part of the accused’s academic record. This makes it a very good alternative for students who seek to maintain athletic program eligibility or scholarships, as well as for those looking ahead to graduate school or a career in law, medicine, politics, or the military. Still, the terms of the resolution should be considered binding, and there are consequences for violating no-contact orders and other provisions.

“If someone breaches the obligations of the informal resolution, the Title IX matter can be reopened,” Miltenberg advises. 

No one can force either party to choose an informal resolution, and either has the right to withdraw at any time. Beginning an informal resolution process does not necessarily mean a student won’t eventually face disciplinary proceedings if mediation ends without a result or the agreement is breached. 

Is an Informal Resolution Always the Right Choice? 

The decision to choose an informal resolution must be based on each student’s circumstances. The visibility of the situation, potential restrictions, and the reputation of the accused all must be considered. As Miltenberg explains, “on a small campus, it may be important for you to go through the disciplinary process and be found not responsible. On a larger campus, it may be enough for everyone to agree to some restrictions and walk away.”

It can be tempting for students accused of sexual misconduct to accept any solution offered by the university’s administration. A fast resolution seems appealing, and most want to trust school representatives to protect their rights. However, most institutions have shown considerable apathy toward the rights of the accused, and every student should consult with an experienced lawyer who understands Title IX proceedings and how to achieve the best possible outcome. 

“The university is, in most cases, looking to protect itself,” Miltenberg cautions. “You need a lawyer who is experienced in these proceedings and who can help you navigate every step of an adversarial process of which you are the target.”

For more information about the rights of the accused in campus sexual misconduct proceedings and the informal resolution process, contact Andrew T. Miltenberg today.