Fall is here and in full swing! Many of us thought that as we sipped hot apple cider and watched the leaves on the trees change color, we would also be mulling over the new regulations issued by the U.S. Department of Education. Betsy DeVos’ timetable is clearly not ours. While we wait for the regulations to be issued, let us look at our current Title IX investigations and what we can do to improve them. Here they are—the top ten pitfalls of Title IX investigations and how to avoid them:
Failing to advise reporting parties about options available to them or influencing them to choose one process over another.
Be candid about the options for a reporting party, be it criminal, Title IX, or both. But don’t favor one or the other when you are describing these processes. Your job is to inform, not persuade.
Failing to perform an initial investigation to determine whether a full investigation is necessary.
Not every report of sexual misconduct requires 20 witnesses and a 100-page report. When a new claim of sexual misconduct first comes in, your job is to decide whether a big investigation is necessary. Perform a “mini” investigation to determine whether a more extensive investigation is even needed.
Failing to give proper notice of the allegations to the responding party.
Who is accusing the responding party? What are the accusations? You must provide sufficient detail of the allegations to allow the responding party to meaningfully prepare for and participate in the interview.
Focusing on reporting party and not the responding party.
The focus of the investigation must be on both parties. It is important to keep in mind that there has not yet been a responsibility determination made. You must provide supportive measures in a way that does not negatively affect either party.
Failing to properly train investigators.
Your team needs to have a balance in their training. It cannot be all victim-oriented. The training needs to address both perspectives.
Title IX coordinator’s failure to supervise the investigation.
Title IX coordinators: You are responsible for overseeing the entire investigation from beginning to end. No pressure . . . but that is a lot of responsibility! You’ve got to assemble a team that you have confidence in so that they can help you. Keep checking in with them during each investigation to make sure that all is going well.
Failing to strategize the investigation.
Develop a roadmap. Who has relevant information? In what order will you interview the witnesses? Thinking about these questions before you are ten interviews into an investigation will help you conduct the best investigation possible.
- Failing to thoroughly investigate allegations.
Your job is to gather all of the available evidence. Ask for text messages, pictures, and any form of instant messaging (Snapchat, Facebook, Instagram, Messenger, Gchat, Google Maps Timeline). In a case involving physical assault, ask for medical records. There may also be video surveillance, which could also be helpful. Failing to ask for and review all of this evidence can be detrimental to your investigation.
Failing to prepare for each interview.
Write out your interview questions in advance – but be willing to veer from your outline to listen to the full story of each witness. Remember that you are a neutral factfinder. You have no side. Your only concern is the integrity of the process.
Failing to get the most out of interviews.
It is scary for most witnesses to be interviewed about the uncomfortable topics at the heart of Title IX investigations. Don’t be intimidating! Thank each witness for coming in. Ask witnesses if there are any questions they would like to ask before starting. Remind them about your school’s amnesty policy – that they will not get into trouble for any underage drinking or drug use. Tell them about your role and why you are there. Try your best to make it a conversation, so that your witnesses will open up to you. Get a good sense of the timeline and the details. Each witness is a new opportunity for you to learn something about the facts of a case that no one else can tell you. Don’t lose your chance!
Thirsty for more?
My colleague, Kate Emert Gleason, and I recently gave a webinar on this very topic. Give it a listen! You may just want to grab some hot apple cider while you do so.