CAMPUS TITLE IX INVESTIGATION TRAINING presented by Saundra K. Schuster, J.D. Brett A. Sokolow, J.D. Leslee K. Morris, J.D. Belinda Guthrie, M.A

CAMPUS TITLE IX INVESTIGATION TRAINING

presented by Saundra K. Schuster, J.D.

Brett A. Sokolow, J.D.Leslee K. Morris, J.D.Belinda Guthrie, M.A.

www.ncherm.orgwww.atixa.org

MEET YOUR PRESENTERSBrett A. Sokolow, J.D. is a higher education attorney who specializes in high-risk campus health and safety issues. He is recognized as a national leader on campus sexual violence prevention, response and remediation. He is legal counsel to 35 colleges, and is the founder and managing partner of NCHERM and Executive Director of ATIXA.

© 2012 ATIXA all rights reserved 2

Saundra K. “Saunie” Schuster, J.D. is a Partner with NCHERM. She was previously General Counsel for Sinclair College and Senior Assistant Attorney General for the State of Ohio. Prior to practicing law she was Associate Dean of Students at Ohio State University. She is an author, and consultant focusing on higher education legal issues.


Leslee Morris, J.D. is the Investigator in the Student Conduct Office at the University of Colorado at Boulder. She investigates and adjudicates cases of sexual assault, sexual harassment, and gender violence. She previously worked as an attorney in the Office of University Counsel at the University of Colorado.


Belinda Guthrie is Associate Dean of the College and Director of Equal Opportunity at Vassar College, and is responsible for overseeing the investigation of complaints of alleged harassment, discrimination, and sexual misconduct. She has over 15 years experience in student and academic affairs, and previously worked at Smith College directing their student disability services.


Title IX

© 2012 ATIXA all rights reserved

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“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination

under any educational program or activity receiving federal financial assistance.”

Title IX of the Education Amendments of 1972Implementing Regulations at:

20 U.S.C. § 1681 & 34 C.F.R. Part 106

The IX Commandments

Thorough

Reliable Impartial

Prompt Effective

Equitable

End the Discrimination

Prevent its Recurrence

Remedy the effects upon the victim & community© 2012 ATIXA all rights reserved

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Investigation

Process

Remedies

Investigation Process Overview

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The Process

Incident Notice to Title IX Officer, Strategy Development

Investigation Informal Resolution, Administrative Resolution

or Formal Resolution? Investigation and Report (and in some

cases…) Hearing

Finding Sanction

Appeal


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Equity By And Through The Process

You will get this right when you can do equity through equity.

Each party’s rights, privileges and opportunities need to be balanced.

Not exact parity, but equitable procedures that reach equitable outcomes that impose equitable remedies.

Equitable = fair under the circumstances What you do for one party, ask whether

you need to do for the other(s)© 2012 ATIXA all rights reserved

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Training Is Critical

In order for investigations of sex discrimination complaints to be thorough and reliable, any individual who conducts them must have relevant and in-depth training and knowledge.

Establish competencies and minimum training schedule Update and refresh


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Training Should Also Include

The institution’s policies and procedures Applicable legal standards and framework Applicable federal and state law and court

decisions Investigative techniques including specifically

interviewing witnesses Cultural sensitivity; diversity competence How to analyze evidence in relation to the

standard How to synthesize evidence, write reports,

make findings © 2012 ATIXA all rights reserved

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Strategy is Key

The investigation team, in consultation with their supervisors, and/or the Title IX Coordinator strategizes the entire investigation. This includes: What Policy(s) elements may have been violated? What are the undisputed facts? Which ones are

significant to the investigation? What are the facts in dispute? Which ones are

significant to the investigation? Who do you need to interview? What should be the order of the interviews


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Other Elements to Consider in Strategy

What are the key issues involved? What additional strategies do you need to

address key issues? What additional documentary evidence

will be important to the investigation? Discuss your Methodology for this case

(what approach will you use?) Timeline (within 30-60 days will vary by

case)


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Team Investigation Approach

Challenges with Single Investigator Model

60 day time limit: Strained resources and ability to conduct investigation(s) efficiently and effectively

Potential conflicts of interest

When Title IX and Title VII collide


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Team Investigation Approach

Advantages of Team Investigation Model

Greater opportunity for strategic investigations Greater opportunity to gather maximum

amount of relevant information to inform finding

Affords opportunity draw from a diverse pool of trained investigators with different skills, knowledge and experience

Investigators learn from taking part in investigations and from each other


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Informal And Formal Resolution Process

OCR endorses and encourages informal resolution, and we believe it is a best practice, as long as it is voluntary

Some minor incidents can be resolved through confrontation and/or intervention

More significant discrimination can also be resolved informally, by a process in which the accused individual accepts responsibility, and/or by some forms of ADR or conflict resolution. Mediation not appropriate for sexual assault


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Gatekeeping

As the investigation unfolds, the investigators should determine if there is reasonable cause to believe that policy has been violated.

If that threshold is reached, the investigators should communicate with the Coordinator to ensure a formal charge ensues.

If investigation cannot produce sufficient evidence of reasonable cause, the investigation should end prior to the issuance of the formal charge, and no hearing should be held.


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Gatekeeping

Whether your goal is equity, due process, essential fairness, equal dignity, or a process infused with the humanity of the participants, it is unfair for an accused individual to be dragged through a process without substantiating evidence.

Significant reputational harm can result from allegations of sexual harassment, etc.

A charge (complaint) must be supported by reasonable cause to permit its full pursuit.


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Interviewing20


Demeanor of Investigator

Work to establish a baseline of relaxed conversation

Maintain good eye contact Listen carefully to the answers to your question

Avoid writing while they are talking, if possible Do not be thinking about your next question while

they are talking Ask questions in a straightforward, non-

accusatory manner Nod affirmatively to keep witness talking


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Interview Skills

General Interview Skills: Outline your interview questions but be flexible Plan the order of interviews; may be beneficial

to interview Respondent last Most beneficial to conduct interviews in person Interviews should be conducted in a neutral,

quiet and private setting with a minimal or no likelihood of interruptions

Explain process, your role as a neutral fact finder, and privacy protections and limitations


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Interview Skills

Discuss thoroughness and the need for completeness; make sure parties don't leave facts out because they are afraid of getting into trouble

Create comfort with language and sensitive subjects

Establish rapport before questioning Ascertain who the individual is and their relation

to the other parties in the case Document whether the individual is cooperative

or resistant Be professional: gather the facts, make no

judgments, make no statements about the parties


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General Interview Skills (cont’d)

Pay attention to alcohol / drug consumption and timing of consumption

Be cognizant of the difference between what was “heard” (rumor) and what was “witnessed” (facts)

Ask who else you should talk to and ask for any relevant documentation (i.e. texts, emails)

Let parties know you may need to follow up with them as the investigation progresses

Recommend that the parties and witnesses not discuss the investigation

Discuss non-retaliation Obtain FERPA releases© 2012 ATIXA all rights reserved

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Remember: As an investigator, you have

no “side” other than the integrity of the

process!


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Establish Pre-interview Ground Rules

Can subject record? Who will attend? How will records be kept? Advisors Attorneys Roommates, Parents, etc. FERPA/confidentiality


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Questioning Guidelines

Take the complaint from start to finish through a process of broad to narrow questions and issues that need to be addressed

Engage in a matching process Ask questions about the allegations and the

evidence and the policy elements Focus on areas of conflicting evidence or gaps

of information Drill down on timelines and details Don’t leave a question or gap unanswered

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Interviewing Witnesses

It may be helpful to not label the allegations as “sexual misconduct” or “sexual harassment” but to describe it in terms of the behavior.

Ascertain relation to the other parties in the case

Ask questions; address the need for complete truthfulness

Ask for opinions Ask if either party spoke about the incidents

after they happened. Did they see any change in behavior?


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Interviewing Witnesses

Ask if they have been contacted already by one of the parties

Ask if they have made any previous statements, such as to private investigators

Ask if there is anything you should know that has not been covered or if there is anyone else they think that should be contacted

Discuss non-retaliation and give examples of it as some people only see it as threats

Discuss privacy; execute FERPA release Ask all interviewees to contact you if they

remember anything else or want to add to their interview.


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Witness Lists And Flowcharts

Witness lists and flowcharts are important identify the role/involvement of the witness

and his/her relation to other parties specify how the witness was identified

(referred by a party or on your own) keep track of statements / compare

accounts as between witnesses document your outreach attempts quickly locate how to contact a witness

Timeline of incident also very helpful© 2012 ATIXA all rights reserved

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Provide Information to those Interviewed

Each party should receive: a copy of the policies alleged to have been

violated a copy of the procedures that will be used

to resolve the complaint, including the rights that extend to the parties

Consider providing parties with your non-retaliation provision.

Keep a copy of all applicable policies and procedures in the investigation file.


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Analyzing the Information

Examine only actions that have a direct relation to the situation under review

Explore motivation, attitude and behavior of complainant, accused and witnesses

Apply relevant standards: Force, Consent, Incapacity Unwelcomeness; reasonable person;

discriminatory effect Analyze the broadest, most serious

violations first and make a determination of each and every violation alleged


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Making A Finding

Review the policies in play Weigh evidence (relevance & credibility) Determine whether more likely than not

policy (policies) has been violated


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Investigation Notes and Report

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What Kinds Of Notes Should Be Kept?

Assemble an investigative file and keep it in a secure location.

Keep a timeline of the steps in the process, including dates of all meetings and interviews.

Interviews - notes vs. recording Interviews - hand written vs. computer Interviewee verification Records of all contacts including e-mail and

phone calls with all parties© 2012 ATIXA all rights reserved

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Note-taking

Taking notes may slow down the interview in a good way- may help detect deception

Use pre-prepared numbered questions as a framework, but be flexible

Note-taking should occur throughout the entire interview, not just when the accused individual makes a pertinent disclosure or an “incriminating”

Documentation is critical: you are creating the record of the complaint (consider appeals and court challenges)

Remember that a student has the right to inspect their education record under FERPA


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Note-Taking

Notes should be complete and detailed Important for assessing credibility Decision may turn on small details

Where possible, include verbatim statements on critical issues – use their words, not yours

Keep notes on what is told to the complainant, respondent and witnesses

Summarize perceptions of credibility, honesty, etc.


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Note-Taking

“Sole possession” FERPA exception is very limited Date all records and include who was present at

any meetings; number pages Review your notes before the interview concludes Clarify anything you are unclear about Document any refusal to answer, evasion or

refusal to participate Capture key quotes Review and finalize notes immediately upon

completion of interview


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Note-Taking

Make notes as to credibility and reactions/demeanor, generally and to specific questions

Have parties review notes Record any requests or unusual

interaction with interviewee Notes should be free from bias and

subjectivity Identify any delays in the process and

reasons for the delays If it isn’t written down, it didn’t happen


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The Investigation Report

The investigation report is the one comprehensive document summarizing the investigation, including: Results of interviews with parties and witnesses Results of interviews with experts Summary of other information collected, i.e.

information from police reports including pretext calls, medical exams, video surveillance and photographs, copies of text, email and social networking messages, etc.

Assessment of weight, relevance and credibility of information gathered

Assessment of credibility of parties


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Helpful to have a “skeleton” outline of what report will include

The report should: Detail the allegations and how they were

brought forward Explain the role of the parties and witnesses,

and any relations between them Summarize information collected Address evidence collected (direct,

circumstantial, documentary, expert)

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Assess weight, relevance and credibility of information gathered

Assess credibility of parties Explain unsuccessful attempts to collect

information and/or interview witnesses Highlight key factual findings for each

allegation The file should contain all policies and

procedures currently applicable.

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Question-are prior, similar acts by the respondent relevant? To what?

Measure the information gathered against the policies alleged to have been violated, applying the standard of proof (analysis)

Recommend a finding on whether the policy has been violated, or make the finding, depending on your process


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THANK YOU!

Questions?

[email protected]@atixa.org

[email protected]@gmail.com


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Documents

CAMPUS TITLE IX INVESTIGATION TRAINING presented by Saundra K. Schuster, J.D. Brett A. Sokolow, J.D. Leslee K. Morris, J.D. Belinda Guthrie, M.A