Parents Filing Complaints (Response 5/22/2020)
Please clarify the regs language that parents can file as complainant on behalf of their child? Are they an actual complainant, or a proxy for their child? Does that only apply to minor children? Does it only apply to K-12? If it applies to an IHE, what if the child does not want to participate? Does the parent complainant gain all rights that an actual victim would have?
Section 106.6(g) of the Rule states (emphasis added): “Nothing in this part may be read in derogation of any legal right of a parent or guardian to act on behalf of a “complainant,” “respondent,” “party,” or other individual, subject to paragraph (e) of this section, including but not limited to filing a formal complaint.” Thus, a parent or guardian who has the legal right to act on behalf of their child does not become the complainant by virtue of filing the formal complaint on behalf of their child; the “complainant” continues to be defined under the Rule (§ 106.30) as the person “who is alleged to be the victim” of sexual harassment.
Section 106.6(g) applies to the entirety of 34 CFR 106, and is not restricted to the K-12 context. Section 106.6(g) does not apply only to minor children; rather, § 106.6(g) respects the underlying legal rights of a parent or guardian. Where, for example, State law gives a guardian the legal right to act on behalf of an individual even though the individual is not a minor child, § 106.6(g) would respect the legal right of such a guardian to act on the individual’s behalf in all aspects of a Title IX matter. A parent or guardian acting on behalf of a complainant is doing so based on the underlying legal rights of the parent or guardian; the rights granted to a “complainant” or to a “party” under the Rule are the rights of the complainant or party, and § 106.6(g) acknowledges that a parent or guardian may have the legal right to exercise those rights on behalf of the complainant or party. In the preamble to the Rule at page 1564, the Department states: “Whether or not a parent or guardian has the legal right to act on behalf of an individual would be determined by State law, court orders, child custody arrangements, or other sources granting legal rights to parents or guardians.”
In the Rule at p. 352 the Department explains: “The benefits of third-party reporting do not, however, require the third party themselves to become the ‘complainant’ because, for example, supportive measures must be offered to the alleged victim, not to the third party who reported the complainant’s alleged victimization. Similarly, while we agree that where a parent or guardian has a legal right to act on behalf of an individual, the parent or guardian must be allowed to report the individual’s victimization (and to make other decisions on behalf of the individual, such as considering which supportive measures would be desirable and whether to exercise the option of filing a formal complaint), in such a situation the parent or guardian does not, themselves, become the complainant; rather, the parent or guardian acts on behalf of the complainant (i.e., the individual allegedly victimized by sexual harassment). We have added § 106.6(g) to expressly acknowledge the legal rights of parents or guardians to act on behalf of a complainant (or any other individual with respect to exercising Title IX rights).”
The Rule protects the right of every individual to choose to participate, or to choose not to participate, in a Title IX grievance process, free from retaliation. See § 106.71.