If the Title IX allegations in a formal complaint do not meet the definition of sexual harassment out of the Title IX Final Rule, the school must dismiss the complaint for Title IX purposes. That being said, the school can at its discretion, pursue the matter under any other terms which the school deems appropriate, for example, through the school's Code of Conduct or the school's sexual misconduct policy.
Since the Title IX Final Rule went effect, that's what almost all schools have done. They've created a two-part system where cases would be addressed under Title IX. Then cases would otherwise be addressed under their college or university sexual misconduct policy. Misconduct that was misconduct prior to the Title IX Final Rule going into effect, in short, it will remain misconduct.
In almost all instances, it would be just addressed in a different capacity, say outside of Title IX. If you're facing a Title IX concern or sexual misconduct case, having an experienced attorney advisor can help you navigate the process and can help you work towards ensuring a fair process and a favorable outcome and they should be involved as early as possible in the case.
