When a Title IX grievance process begins, the first formal step is written notice to the known parties. It is easy to treat the notice as a form letter. It should be treated as the document that defines what the investigation is about.
What the regulations require
Under the Title IX regulations at 34 C.F.R. 106.45(b)(2), written notice must go to the parties who are known, with sufficient time to prepare a response before any initial interview. The notice must include the allegations with enough detail to permit that preparation, including the identities of the parties involved if known, the conduct alleged, and the date and location of the alleged incident if known.
The notice must also tell the parties that the respondent is presumed not responsible until a determination is made at the end of the process, that the parties may have an advisor of their choice, that they may inspect and review evidence, and of any provision in the institution's code of conduct that prohibits knowingly making false statements during the process.
If the investigation later reaches allegations that were not in the original notice, the institution must provide notice of the additional allegations to the parties whose identities are known.
Who, what, when, where, and which policy
A useful test for any notice is whether the respondent could read it and know what they are being asked to answer. That requires five things:
- Who: the parties, to the extent known.
- What: the conduct alleged, described in factual terms rather than only a policy label.
- When: the date or date range.
- Where: the location, including online settings.
- Which policy: the specific provision the conduct would violate if it occurred.
A notice that says only "sexual harassment as defined in the policy" does not meet this test. Neither does a notice that names a policy section without describing any conduct.
Common errors
The errors that show up on appeal tend to repeat:
- Notice sent the same day as the first interview, leaving no real time to prepare.
- Allegations added during the investigation without a supplemental notice.
- A policy provision cited that does not match the conduct described.
- Required statements, such as the presumption of non-responsibility, missing from the template.
- Notice sent to one party but not the other.
Each of these is easy to prevent with a template that is reviewed against the regulation and a checklist that confirms the date of delivery.
Beyond Title IX
Employee matters under Title VII and other policies do not carry the same regulatory notice requirements, but the principle holds. A person asked to respond to an allegation should know what it is. PK-12 districts should also check state law and collective bargaining agreements, which often set their own notice terms for employees.
Vague notice invites delay, because the respondent cannot prepare. It also invites appeal, because a decision-maker may later find that the respondent never had a fair chance to answer what was decided.