Retaliation under the Title IX Final Rule can encompass various forms. It would be impossible to completely define. Retaliation can be, for example, if a teacher or professor is accused of sexually harassing a student, and then if the professor were to give that student if for some reason the professor was still in the capacity to grade that student a lower grade, the allegation could be made that that was retaliation.
If, for example, a respondent accused of sexual harassment, sexual misconduct, and if that student filed a Title IX complaint against the complainant for concerns of his or her own in a sense of the respondent's own grievances towards the complainant. Although it should not be the case, the school may regard that as retaliation. If the respondent, for example, were to pursue a defamation case against the complainant, is there a lawful right to do so?
My concern would be that a school can regard that as retaliation. It's fluid in terms of what could or would be considered retaliation, it would be a case in fact-specific. Retaliation is a serious allegation unto itself, it's a serious potential charge. A person has to be extremely mindful not to be in the position of being accused of retaliation and having an experienced attorney advisor can help you best understand what's at stake, and can help you understand and navigate the process. They should be involved as early as possible in a Title IX sexual misconduct case.
