As a dean of students, I often hear from college students that they want a “different way” to resolve incidents of sexual misconduct.
Many students who want to report an incident have overlapping social circles with an accused student. They tell me that they don’t want friends involved as witnesses, and don’t want to get the person “in trouble.” They tell me they don’t want to participate in a collegiate or criminal process where they will have to retell their story and relive the traumatic experience.
Ultimately, there is no “one size fits all” model for addressing sexual violence on college campuses. From an outside perspective, it may seem unjust not to answer every report of sexual misconduct with a process to hold the offender accountable, by putting their education in jeopardy. But it is not for colleges — or the outside public — to decide what is right for each victim. Each student impacted by sexual violence should have a choice on whether they want a formal, informal, or even no participation at all in a resolution process. They should have choices.
On May 6, the U.S. Department of Education (DOE) released its final rule on Title IX. While many elements of the new regulations are contentious, one area that is largely approved by college administrators is the ability to provide informal resolutions for Title IX violations, as it provides additional choice.
Informal resolutions are alternative ways for institutions to provide students with their own sense of justice. These processes typically include opportunities for education and accountability in a way that best meets the needs of an individual victim. Rooted within the restorative justice field, they focus on repairing harm instead of punishment. For example, a harmed party may have facilitated conversations with the offender and address wrongdoing in what’s called a restorative conference.
While the previous Title IX guidance did not strictly exclude informal or alternative resolutions, it did prohibit mediation, which many institutions saw as comparable. The final regulations explicitly allow informal resolutions for student and employee cases, with the exception of power differential situations, such as a faculty member who is sexually harassing their student.
This will provide the needed clarity for some administrators and general counsels who do not feel that their institutions should adopt a new resolution process without specific permission from the DOE.
The next big question for college and universities’ Title IX staff is: What do informal resolutions look like on my campus? There are several models institutions can adopt.
Our team at the College of New Jersey (TCNJ) created an alternative resolution process in 2017 that aims to address the harm caused by a sexual violence incident. The reporting party works with the college to create an agreement that addresses their needs following the incident they are alleging. The college then discusses this process with the respondent, who in criminal proceedings would be the accused. The respondent does not need to admit a policy violation, but rather acknowledge harm was caused to the reporting party by their behavior.
Components in the agreement may include the respondent attending a three-part consent workshop, both parties participating in a restorative circle, or the respondent listening to a victim impact statement from the reporting student. The critical piece is that this agreement is crafted with the reporting party to ensure it addresses their needs, and the respondent agrees to fully participate in good faith.
TCNJ students, both the reporting and responding parties, have shared satisfaction with this process. Reporting parties often reflect their appreciation of having control over the process and finding their voice.
One reporting student shared, addressing the other student involved: “… I am now ready to have a conversation with you. I am not out to ruin your life, rather I hope you learn from this experience because no other person should have to experience what you put me through.”
Creating effective informal resolution processes is not easy. Institutions need to invest the time in surveying their community, building a transparent process, and consistently making necessary changes.
That time is well worth the reward to better serve students. Now with clear permission from DOE, hopefully more schools will feel empowered to pursue this route.