Informal Resolution in Title IX Cases

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Informal Resolution in Title IX Cases

When a school responds to a report of sexual harassment under Title IX, the formal investigation and hearing process is not always the only option to resolve a matter. A school may also offer an “informal resolution” option — a voluntary alternative that can resolve the matter without a full investigation or hearing. Know your options before proceeding with the Title IX process and talk to your advisor about whether informal resolution is available and appropriate in your case.

What Schools Must Do

A school is never required to offer informal resolution. It cannot be offered where an employee is alleged to have sexually harassed a student.

If a school can, and chooses to offer informal resolution, it may facilitate the process at any time after a formal complaint has been filed and before a determination of responsibility is reached. The regulations do not define “informal resolution,” so a school has discretion to use mediation, restorative justice, or another approach that meets the needs of the parties and its school community.

Informal resolution is regulated under the Code of Federal Regulations and enforced through the Office of Civil Rights. Under 34 C.F.R. § 106.45(b)(9), a school that offers informal resolution must meet specific conditions:

  • A formal complaint must already be on file. Informal resolution is not available before a formal complaint has been filed.
  • Written notice required. Each party must receive written notice disclosing the allegations, the requirements of the process, the circumstances under which choosing informal resolution closes off a return to the formal complaint, and the consequences of participating, including what records will be kept or shared.
  • Voluntary and informed consent from both parties. Neither party can be required or pressured to participate in the informal resolution process, and no party can be required to waive the right to a full investigation and formal adjudication.
  • The right to withdraw from the informal process at any time before an agreement is signed. Either party may discontinue the informal resolution process and return to the formal grievance process at any point before agreeing to a resolution — until an agreement is signed.
  • A facilitator must be unbiased. Anyone affiliated with or appointed by the school to facilitate the informal process must be free of conflicts of interest and bias, and must be trained on the applicable definitions, the school’s policy, and the facilitator must be and remain impartial.

Frequently Asked Questions

Is the agreement actually binding — and on whom?

The Department of Education has indicated an expectation that a signed informal resolution is binding in the same way a contract is binding. But the regulations themselves do not spell out the mechanics of how that works. In practice, the informal resolution agreement is a private agreement between the complainant and the respondent — the complainant typically agrees not to pursue the formal complaint further, and the respondent typically agrees to specific terms in exchange. The school, acting as facilitator, does not need to be a party to that exchange for it to be enforceable between the parties to the complaint. What gives the agreement enforceability in most cases is not contract law — instead, it is the school’s own conduct code, which schools generally use to treat a violation of the agreement as a separate disciplinary matter that can reopen the process.

If the other party doesn’t comply, can this go to court?

A breach of an informal agreement is usually remedied by termination of the agreement and a return to the formal process. If the parties agree that such an agreement should be enforceable as a matter of state contract law, the agreement should be drafted to reflect that understanding. Such a contract is not necessarily enforceable as a breach of contract under Title IX law, because the agreement is a private document rather than a source of federal rights in itself. Informal agreement are generally enforceable only through the school’s internal disciplinary process, and not independently through a court. Parties to an informal agreement who want a resolution agreement to be enforceable on its own terms should have it drafted as a standalone agreement with its own remedies, not simply assume that signing it creates a court-enforceable contract by default.

Can you be require to sign a general release of claims?

An informal resolution agreement will always close off the ability to reopen the specific Title IX complaint on the same allegations — that finality is the point of the process, and it is a standard, expected term. A broader “general release” is a different matter. The regulations are built around the requirement that consent to informal resolution be genuinely voluntary, and a school should not require, as a condition of any right or privilege, a waiver of the right to a formal investigation. Extending that logic, conditioning informal resolution on signing away unrelated claims — including potential claims against the school itself — sits uneasily with the voluntariness the regulation demands. If a party is told that a broad release is non-negotiable before the process will close, depending on the timing and circumstances of such a requirement, its enforceability is questionable.

How We Can Help

Koffsky & Felsen, LLC advises students, faculty, and families navigating Title IX proceedings all over the country, including Connecticut and New York, including. Call us at 203-327-1500 or email us at audrey@koffskyfelsen.com if you have any questions or need representation handling your Title IX or other school disciplinary matter.

This article is provided for general informational purposes and does not constitute legal advice. It reflects the Department of Education’s 2020 Title IX regulations, 34 C.F.R. § 106.45(b)(9), and OCR’s July 2021 (updated June 2022) Questions and Answers on the Title IX Regulations on Sexual Harassment, which remain the regulations currently in effect following the vacatur of the 2024 rule. Readers should confirm which regulations apply to their specific matter, as this area of law has changed more than once in recent years.