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CAMPUS TITLE IX INVESTIGATION TRAINING
presented by W. Scott Lewis, J.D.
University of Puget SoundTacoma, WA
July 30th & 31st, 2012
www.ncherm.orgwww.atixa.org
Meet Your Presenter
W. Scott Lewis, J.D. is a partner with NCHERM and is special advisor to Saint Mary’s College. He has over 20 years of experience as a student affairs administrator, faculty member, and consultant in higher education. He is a frequent keynote and plenary speaker.
2© 2012 ATIXA all rights reserved
UNDERSTANDING
TITLE IX
3
Relevant Statistics
20% of college women will be victims of attempted or actual sexual assault
6% of undergraduate college men will be victims of attempted or actual sexual assault
4 in 10 violent crimes against college students are committed by offenders perceived by the victim to be using drugs or alcohol
Campus Sexual Assault Study Final Report. (Christopher Krebs, et al.)
National Criminal Justice Service, 2007
4
Relevant Statistics
Between 80 and 90 percent of cases, victim and perpetrator know each other. The more intimate the relationship, the more likely it is for a rape to be completed rather than attempted
Half of all student victims don’t label the incident “rape.” This is particularly true when no weapon was used, no sign of physical injury is evident, and alcohol was involved—factors commonly associated with campus acquaintance rape
Fewer than 5% of student victims report to authorities or law enforcement
5
Campus Legal Standards Regarding Sexual
Misconduct UNDERSTANDING THE LEGAL LANDSCAPE:
College Policy Should reflect the law Should reflect college culture
Title IX Significant case law OCR Guidelines
Clery Act, “Campus Sexual Assault Victims Bill of Rights”
Title VII
6
Title IX7
“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
Title IX
Federal Law enacted in 1972 Intended to end sex discrimination in all areas of
education Made non-discrimination based on gender a
condition of participation in all federally funded education programs for both public and private institutions
It applies to educational program equity, such as in athletics, and also to sexual harassment and sexual assault
Compliance with the law is overseen by the U.S. Dept. of Education, Office of Civil Rights
8
Cases That Created the Title IX Liability Standard
Franklin v. Gwinnett Public Schools Gebser v. Lago Vista Davis v. Monroe County Bd of Education
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Franklin v. Gwinnett Public SchoolsU.S. Supreme Ct. (Feb. 26, 1992)
Case involved faculty/student sexual harassment
The Supreme Court in this case established that sexual harassment constituted sex discrimination under Title IX.
The Court also determined there is a private right for recovery of monetary damages under Title IX
However, this case did not address issues concerning the educational institution’s liability
10
Gebser v. Lago Vista Indep SchoolU.S. Supreme Ct. (June 22, 1998)
Case involved a faculty/student sexual harassment.
Ct. said you cannot recover monetary damages against the school unless: An official of the educational institution had
“actual knowledge” of harassment;
The official had authority to “institute corrective measures” to resolve the harassment problem; AND
The official “failed to adequately respond” to the harassment and, in failing to respond, must have acted with “deliberate indifference.”
11
Davis v. Monroe Cty. Bd. Of Ed.U.S. Supreme Ct. (May 24, 1999)
This case involved student to student sexual harassment
The first major ruling on a school’s liability for student to student sexual harassment
Supreme Court applied same standards to find the institution liable for damages as in the Gebser case: the institution must have “actual notice” of the harassment; and the institution must have responded to the harassment with “deliberate indifference”. Additionally court held:1. Harassment must be “severe, pervasive, and objectively
offensive,” to the extent that the victim is deprived of educational opportunities or services.
2. Justice O’Connor added a framework to determine deliberate indifference – stating that deliberate indifference constitutes a response that is “clearly unreasonable in light of the known circumstances”.
12
OTHER RELEVANT CASES
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Jackson v. Birmingham Bd. of Ed., U.S. Supreme Court, 2005
DeJohn v. Temple University, 3rd Circuit Court of Appeals, Aug. 2008
Holcomb v. Iona, 2nd Circuit Court of Appeals, April 2008
Remedies Under Title IX
A student may assert a Title IX sexual harassment claim against the institution:
(1) Sue the institution in court and seek money damages or injunctive or declaratory relief
(2) File an administrative complaint, a grievance with U.S. Dept of Ed Office Of Civil Rights (OCR)
14
Role Of OCR & Title IX
The U.S. Dept. of Education, Office for Civil Rights (OCR) is responsible for establishing the compliance standards to be applied in investigations and enforcement of Title IX regarding sexual harassment.
The OCR Guidelines distinguish the administrative oversight of Title IX from the standards applicable to private litigation for monetary damages.
OCR administratively enforces Title IX by: OCR investigations result from complaints filed with the U.S.
Dept of Education as well as from “voluntary compliance investigations”
OCR investigates and resolves complaints alleging that educational institutions that are recipients of federal funds have failed to protect students from harassment based on sex
If OCR identifies a violation, Title IX requires OCR to attempt to secure voluntary compliance
15
Office Of Civil RightsEstablishes Regulatory
Liability StandardsProvides the principles that a school should use to recognize
and respond to sexual harassment of students as a condition of receiving federal financial assistance.
The revised guidance from OCR states that once a school has notice of possible sexual harassment of a student, the school should take immediate and appropriate steps to investigate what occurred and take prompt and effective action to end the harassment, remedy the effects, and prevent it from occurring again.
OCR standards require the sexual misconduct must rise to the level of severe, pervasive and objectively offensive, and establishes that conduct of a sexual nature that rises to this level are subject to the OCR remedial recommendations
16
These steps are the school’s responsibility whether or not the student who was harassed makes a complaint or otherwise asks a school to take action
OCR acknowledges that in circumstances where the complainant requests confidentiality or refuses to participate, the school’s ability to take action may be limited
The school is still required to take all reasonable steps to investigate and respond
17
If an educational institution fails to take reasonable corrective action based on the OCR recommendations, OCR will file a formal finding of violation and an institution could risk losing its federal funding.
OCR also initiates Voluntary Compliance Reviews Complaints and Reviews are often resolved by
agreement requiring schools to adopt effective anti-harassment policies and procedures, train staff and students, address incidents in question and to take other steps to restore a non-discriminatory environment
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OCR Title IX Compliance Requirements:
Non-Discrimination Statement
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Must prominently include a statement of policy
“An institution shall implement specific and continuing steps to notify applicants for admission and employment, students, and parents, all unions …that it does not discriminate on the basis of sex in the educational program or activity which it operates, and the institution is required by Title IX not to discriminate in such a manner.”
(34 C.F.R. § 106.9)
OCR Title IX Compliance Requirements
Policies and Procedures Publication of Policies and Procedures
that establish: Effective reporting and response protocol Appropriate grievance procedures Fair and equitable investigations Equitable remedies Preventing recurrence Incorporate preventive training Appointment of a Title IX Coordinator
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More on Policies & Procedures
Policies should clearly define expected/prohibited conduct
Policies should be regularly updated and revised
Procedures should clearly channel grievants to appropriate resources
Procedures should provide for the equitable remedying of complaints
21
Effective Reporting & Response Protocol
Once you have actual notice, you have a legal duty to conduct an investigation. That legal duty is absolute! The investigation may be preliminary or
comprehensive, but it must be done. The “Promptness Requirement”
30-60 day resolution should be the goal The “Effective Requirement”
To stop the sexual harassment or sexual violence (ensure that the discriminatory conduct does not continue
Remedy the effects of the discrimination on the student, to the extent practical and possible
Provide sanctions that are reasonably calculated to prevent the reoccurrence of the discriminatory conduct
22
Grievance ProceduresMust Include
Notice: Provide notice of procedures Application: Applies to complainants alleging
harassment on the basis of sex Investigation: Adequate, reliable and impartial Timeframe: Define reasonable timeframe Outcome: Both complaining party and accused
should receive notice of outcome Assurances: Institution assures it will take steps to
prevent recurrence Retaliation: Provisions to prohibit retaliation Appeal: Offer opportunity to appeal findings or
remedies
23
Grievance Procedures
Describe who may file a grievance Describe what constitutes a grievance Define clear limits for submitting a grievance
and prompt & effective response Specify the availability of any assistance for
the person who initiates the grievance Define the number and levels of steps in the
process Define the notice requirements
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Grievance Procedures
Identify the timelines for each step Identify the roles and/or selection of persons
involved in the grievance process State the right of all parties to impartial
decision makers State protection of grievant from harassment
and retaliation State right of either party to appeal outcome
25
Fair and Equitable Investigations
Interview all persons involved Do not interview the alleged harasser at the same
time as the victim/complainant Provide complainant, accused and any witnesses the
opportunity to have a representative accompany them during investigations
Keep complete records of investigations, including a detailed description of allegations, notes on all interviews, outcome of investigations, and any action taken
Abide by procedural timeframes set in policy Provide a written report of investigation & outcome
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Prevention Includes Assurance of Equitable
Remedies Remedies for sexual harassment and assault
must be effective in ending the harassment, eliminating the hostile environment and preventing it from recurring.
Take timely steps to confirm and document that the appropriate remedies were implemented. For example: Was the student provided alternative housing? Was counseling made available? Was a no-contact order issued? Was the grade removed from the student’s transcript?
Make sure the complainant knows that he or she should report any difficulties obtaining the remedies and any subsequent harassment.
27
Preventing Recurrence
Identify patterns and systemic problems Campus-wide policy statements,
informational campaigns and other messages that harassment and assault will not be tolerated.
Regular training on sexual misconduct for students and employees.
Conduct periodic surveys of campus climate. Establish a system for monitoring future
incidents and patterns Provide technical assistance to campus law
enforcement on Title IX compliance
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The IX Commandments
Thorough
Reliable Impartial
Prompt Effective
Equitable
End the Discrimination
Prevent its Recurrence
Remedy the effects upon the victim & community
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Investigation
Process
Remedies
Preventive Training30
Must address legal and procedural standards Incorporate timeframes for review and update
of policies and specify the office in charge of updates
Identify qualified trainers Conduct regular sexual misconduct training for
all staff & students Identify and publish additional training or
informational opportunities Ensure new policies and procedures are
appropriately noticed and published
Bystander Intervention as Prevention
31
Title IX Coordinator
Title IX requires that each institution that receives federal funds must protect individuals from gender discrimination To assist in accomplishing that task, Title IX requires
that each institution select a Title IX Coordinator Title IX Coordinator is responsible for promoting
an institutional environment that is free of gender bias and sexual harassment, by engaging in the following: Develop a working knowledge of Title IX and the
implementing regulations Keep informed of current research and judicial
decisions related to Title IX and gender equity
32
Duties Of Title IX Coordinator
Participate in the development , implementation and evaluation of the institution’s Title IX policies and procedures
Develop sexual harassment Title IX complaint procedures for students and staff
Provide public notice of the complaint procedures and the name and contact information for the Title IX Coordinator
Monitor and evaluate the institution’s Title IX compliance efforts and make recommendations for any appropriate changes
Provide in-service training to ensure institutional community understands Title IX policies and procedures
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Dear Colleague LetterSent by Office of Civil
RightsApril 4, 2011
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DCL Highlights
OCR stated specifically that they view sexual violence as a form of sexual harassment and therefore a form of gender discrimination covered by Title IX
OCR reiterated that campuses that do not take jurisdiction over off-campus sexual misconduct may fail to remedy discrimination covered by Title IX
Notice = Duty of immediate Title IX-based prompt and effective action to eliminate harassment, prevent its recurrence, and remedy its effects.
35
DCL Highlights
OCR stated that failure to implement prompt and equitable procedures = violation of Title IX (see off-campus jurisdiction example in DCL)
Notice can be second hand or by third parties Law enforcement action does not relieve a
campus from its own INDEPENDENT investigative responsibility under Title IX Though some short term delay to avoid
obstructing law enforcement is possible until gathering of evidence is complete
Investigation must be prompt, thorough, impartial
36
DCL Highlights
Sanctioning the offender is not the only remedy for harassment Other steps to limit harassment, prevent
recurrence required even when complainant will not allow campus to pursue complaint
Training can help to show compliance efforts Equitable resolution via equitable procedures
means each party must have the same appeal rights as the other, or gender discrimination may result. This is true of many procedural rights,
opportunities, privileges, and obligations we afford to all parties.
37
Equity Requires Immediate Action
Immediate investigation MOU with local police cannot excuse Title IX
delay Prompt resolution Interim action to protect alleged
victim/campus Equity calls for the institution to make the
most reasonable remedy applying “totality of the circumstances”
Must maintain documentation of all proceedings
38
Equitable Process is Critical
Should afford opportunity for informal resolution
That does not mean mediation. Preponderance of evidence is the ONLY
appropriate standard for resolving Title IX complaints Rape, sexual assault, sexual harassment,
stalking, gender-based bullying, intimate partner violence, etc.
Must determine if Code of Conduct system works for providing equitable process
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Equity Requires Training Title IX Coordinator(s) Intake staff/faculty Campus Law Enforcement Investigators Hearing Officers
Training on and knowledge of sexual violence Confidentiality requirements Due process rights… should not “restrict or
unnecessarily delay Title IX protections for complainant”
Appeals Officers (the biggest area of risk currently)
40
Equity Requires Clear Timeframes
Timeframe for each stage of process, and process for extensions
Parties entitled to periodical status updates (FERPA does not conflict with Title IX)
60 days to resolution; varies situationally Notification of outcomes to parties permitted
by FERPA, required by Clery (outcome and sanctions) Title IX rules in a conflict with FERPA IN WRITING!
Entitled to status updates on appeals, too, regardless of which party appeals.
41
Title IX Coordinator Role: More Details from the DCL
Each campus must identify at least one Title IX Coordinator More than just a contact for DoED inquiries Must disseminate/publish contact information
for coordinator Oversees training Assures equitable remedy Identifies patterns and systemic problems Cannot have conflict of interest in role Provides technical assistance to campus law
enforcement on Title IX compliance
42
Investigation of Title IX Claims
43
The Role of the Title IX Officer in the Investigation
Process
Title IX Officer44
Supervisor Of The Investigation Structure
The Title IX Officer is responsible for: The appointment of investigators Supervision of investigators and investigations Strategizing investigations Assurance of initial remedial actions Timeline compliance Communication and coordination of
investigation teams Providing institutional memory to investigators Training of investigators, hearing boards &
appeals officers
45
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
46
Example Training Competencies
Strategic process Questioning skills Evaluating
evidence Establishing
rapport Good report writing Alcohol & Other
drugs Victimology
Patterns Predation Recantation Communication
Training Rape Myths Consent Force Incapacity
47
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
48
When Processes Collide
What happens when the employee is a student or the student is an employee? There is a difference
Oversight of Deputy Coordinators/Investigators
Ability to merge/combine the investigatory and hearing processes
Coordination of remedies in student-to-employee and employee-to-student grievances
49
Investigation Approach 50
Why Apply Investigation Model?
Sex based misconduct is not only a campus behavioral violation, but also a violation of federal civil rights laws.
Often requires Title IX response Civil Rights Investigation Model most effective for
victim-based violations Campus conduct process involves passive receipt of
information Investigation process involves strategic information
gathering, comprehensive investigation, credibility information
Better information leads to better decisions Investigation model can stand alone or be grafted onto
and/or integrated into existing procedures.
51
Should There Be More Than One Investigator?
No specific requirement, but: Investigation must be prompt, thorough
and impartial Investigatior must collect the maximum
amount of relevant information available to make a determination
A pool of investigators may help to ensure that your investigation meets these requirements.
52
Additional Benefits of Team Investigations
Who investigates may be strategic to each specific case
Ability to brainstorm investigation steps and lines of questioning with co-investigators, co-facilitate interviews
Flexibility if there is any conflict with investigators and parties
53
How Is Investigation Different In Hr Contexts Than In Student
Conduct Contexts? Role of FERPA, Employee/Faculty
Handbook/Collective Bargaining Agreement impacts process
Issues of First Amendment protections State Public Records Laws At-will v. property interest Due Process and Fundamental Fairness
54
An Analytic for Sexual Misconduct Allegations
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UNDERSTANDING THE FORCE – INCAPACITY – CONSENT CONSTRUCT
Overview of the Three Questions
1. Was force used by the accused individual to obtain sexual access?
2. Was the victim incpacitated? Did the accused individual know, or should s/he have known that the alleged victim was incapacitated?
3. What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place?
56
Force
There are four types of force to consider: Physical violence -- hitting, restraint, pushing,
kicking, etc. Threats -- anything that gets the other person
to do something they wouldn’t ordinarily have done absent the threat
Intimidation -- an implied threat that menaces and/or causes reasonable fear
Coercion – the application of an unreasonable amount of pressure for sexual access. Consider:
Frequency Intensity Isolation Duration
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Force
Because consent must be voluntary (an act of free will), consent cannot be obtained through any type of force.
If force, in any of the four forms (or other forms as defined in your policy), was used, stop here. You are done.
The policy has been violated. Consent and incapacity are irrelevant at this point.
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Incapacity
If incapacity could be involved (was alcohol, drugs or other form of incpapcity an issue in the matter), there is a two-step analysis: First, did the victim believe he/she was
incapacitated at the time of the sexual encounter? Could s/he make rational, reasonable decisions? Could s/he appreciate the situation and address
it consciously such that any consent was informed consent?
Knowing who, what, when, where, why and how
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Incapacity
Second, did the accused individual know that the alleged victim was incapacitated?
OR, should the accused individual have known (from all the circumstances)? Use a reasonable person standard.
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Incapacity Information
Incapacitation is a determination that can only be made after the incident in light of all the facts available
Assessing incapacitation is very fact dependent
Blackouts are frequent issues Blackout = incapacitation Blackout = no working (form of short term)
memory, thus unable to understand who, what, when, where, why or how
Partial blackout must be assessed as well What if the accused student was drunk too?
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Consent
The Consent question: What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place?
Consent Is: Informed (knowing) Voluntary (freely given) Active (not passive) Clear words or actions Indicating permission to engage in mutually agreed
upon (sexual) activity
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Rules To Remember
No means no, but nothing also means no. Silence and passivity do not equal permission
To be valid, consent must be given prior to or contemporaneously with the sexual activity
Consent can be withdrawn at any time, as long as that withdrawal is clearly communicated by the person withdrawing it
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Consent – U-Tube64
Investigation Process Overview
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The Investigation Process Incident Notice Strategy development
Informal, Administrative or Formal Resolution? Investigation Plan Interview all witnesses Gather and assesses evidence Write the investigation report Make a finding or recommendation (will vary by school)
May recommend sanction
Appeal
66
When Do You Investigate?
Receive Complaint Actual Notice or Constructive Notice How do rumors, gossip, online postings,
etc. fit in? Once notice exists, the duty to
investigate is absolute Small “i” preliminary Big “I” comprehensive investigation
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Notice Standard
OCR applies a “constructive notice” standard that is broader than the notice standard used by the courts – which is “actual notice”
This brings under its ambit all complaints about which the university knew, or should have known
The OCR standard of “knew or should have known” is more favorable to student complainants than the “actual knowledge” standard used to determine civil liability
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Actual Notice
Individual files a Title IX grievance Individual notifies the Title IX Coordinator
or other responsible employee Individual complains to campus police or
security official Staff member witnesses harassment Indirect notice from sources such as
flyers posted on campus, media, online postings, video
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Constructive Notice
In some cases, the pervasiveness of the harassment may be enough to conclude that the college should have known of the hostile environment – where harassment is widespread, openly visible, or well known to students and/or staff.
In other cases, OCR can conclude the institution should have known of incidents of harassment from a report to an employee who had a reporting duty to a supervisor, but: failed to uphold that duty, or based on a complainant’s reasonable understanding of the
apparent authority of the person to whom the report was made, though that employee in fact lacked actual authority as a mandated reporter.
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Notice & Employee Obligations
71
OCR requires that a college or university may be held accountable for harassment of students (even by other students) if any person perceived to be a responsible school employee was put on notice and took no corrective action
This is different from the standard applied by the courts, which imposes liability when a school official with authority to take corrective action fails to respond, or is deliberately indifferent
Responsible Employee and Reporting Obligations
A responsible employee includes any employee who: o Has the authority to take action to redress
the harassment, o Has the duty to report harassment or other
types of misconduct to appropriate officials, o Someone a student could reasonably believe
has this authority or responsibility. Institutions must ensure that employees are
trained regarding their obligation to report harassment to appropriate administrators.
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Training For Responsible Employee
Colleges and universities should ensure that employees are trained so that:
Those with authority to address harassment know how to respond appropriately
Other responsible employees know that they are obligated to report harassment to appropriate officials
Essential Topics for training Knowledge of institutional and community
resources Information regarding reporting Confidentiality requirements Importance of remediation
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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
74
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
75
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)
76
Understanding Role of 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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Ensuring Equity In the Process
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) Determine if a variation is important and if
so, what are the issues of equity?
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Todd & Amy Part I
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 want to interview? Order of interviews What other information do you need? Do you need to interview an expert witness?
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Interviewing80
Important to Remember: As an investigator, you
have no “side” other than the integrity of the
process!
81
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
82
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
83
Interview Skills
Establish rapport before questioning Discuss thoroughness and the need for
completeness; make sure parties don't leave facts out because they are afraid of getting into trouble
Ascertain who the individual is and their relation to the other parties in the case
Create comfort with language and sensitive subjects
Document whether the individual is cooperative or resistant
Be professional: gather the facts, make no judgments, make no statements about the parties
84
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
85
Establish Pre-interview Ground Rules
Can subject record? Who will attend? How will records be kept? Advisors Attorneys Roommates, Parents, etc. FERPA/confidentiality
86
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
87
Interviewing The Complainant
Acknowledge difficulty of reporting and thank them.
Acknowledge that they may have told this story multiple times already explain why you are taking notes and/or ask for permission to record if applicable
Provide a copy of your policies and procedures Ask them to share a complete account of what
occurred Good to have them give full story without asking
questions, then drill down on details Ask whom they spoke to and told about the
incident. Ask about outcry witnesses and possible
documentation such as blogs or journal
88
Interviewing The Complainant
Ask what the complainant’s motivation is for reporting and what they hope to see as a result
Find out if their academics and/or work have been affected
Ask how this has affected them emotionally and /or physically
Advise that the complaint will be discussed with the respondent and witnesses
Discuss other reporting options
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Interviewing The Complainant
Discuss counseling options if they are not already connected
Discuss non-retaliation and intermediary steps such as no contact orders and class changes and give examples of retaliation, and to whom it should be reported immediately
Let the complainant know next steps and when they will hear from you, and that they can contact you anytime with questions or any problems that rise
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Confidentiality Issues of Complainant
If a complainant requests that his or her name not be used: The institution should take all reasonable
steps to respond and investigate consistent with that request
So long as doing so does not prevent the school from responding effectively and preventing the harassment of other students or the complainant
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Confidentiality for Complainant
The college or university should explain to the complainant that: Its responsive action may be limited. It cannot guarantee privacy if doing so
would jeopardize the safety of the complainant or others.
emphasize that only those with a need to know will be informed. Train those who will be informed about
confidentiality expectations
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The Reluctant Victim
When an alleged victim is reluctant to make a formal complaint, or returns to withdraw a formal complaint, Investigators should honor that request and determine the reason for reconsideration
Those reasons that involve the investigation or hearing process should be addressed by the Investigator. Those that involve other issues should be addressed by their support person
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The Reluctant Victim
The victim should be notified as to their options:That the process will still be available to them,
regardless of how long they waitThat the institution will support them in any
way it can (housing, classes, no contacts, etc.)That, if information is brought to the attention
of the of the institution that may involve a threat to the community, the office may be forced to proceed with an investigation, but that the victim will be notified of this process
94
Interviewing The Respondent
Acknowledge difficulty of the situation and thank them for meeting with you
Provide a copy of your policies and procedures Ask them to share a complete account of what
occurred Question the Respondent as to the allegations- ask
a combination of open and closed ended questions Get detailed- do not leave a question unanswered Ask about witnesses and any other relevant
information Ask about possible motivation for complaint
95
Interviewing The Respondent
Let the Respondent know next steps and when they will hear from you, and that they can contact you anytime with questions
Discuss counseling options if they are not already connected
Discuss non-retaliation and any intermediary steps such as no-contact orders, housing moves and exclusions
If interim suspension is employed, review the terms and provide a time frame
96
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?
97
Interviewing Witnesses
Ask if they have been contacted already by one of the parties
Ask if they have made any previous statements Ask if there is anything you should know that
was 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.
98
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
99
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 copies of your non-retaliation provision.
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Todd & Amy Part II
What questions do you want to ask Todd?
What questions do you want to ask Amy?
What questions do you need to ask from witnesses?
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Case Analysis102
Understanding Evidence
Formal rules of evidence do not apply. If the information is considered relevant to prove or disprove a fact at issue, it should be admitted. Evidence is any kind of information presented with
the intent to prove what took place Certain types of evidence may be relevant to the
credibility of the witness, but not to the charges Consider if drugs or alcohol played a role
If so, do you know what you need to know about the role of alcohol on behavior? Timing? Incapacitation?
Look for evidence of prior planning
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Understanding Evidence
You may assign weight to evidence based on: Direct or testimonial evidence (personal observation or
experience) Circumstantial evidence (not eyewitness – but compelling) Documentary evidence (supportive writings or documents) Real evidence (physical object) Hearsay evidence (statement made outside the hearing but
presented as important information) Character evidence (generally not relevant or acceptable) Past record (should only be presented prior to sanctioning
if it relates to significant pattern of behavior that would impact “more likely than not” determination)
Impact statements (should only be reviewed after a finding)
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Credibility
“To assess credibility is to assess the extent to which you can rely on a witnesses’ testimony to be accurate and helpful in your understanding of the case” Credible is not synonymous with truthful Memory errors do not necessarily destroy a
witness’ credibility Refrain from focusing on irrelevant
inaccuracies and inconsistencies Pay attention to the following factors…
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Factors to Consider for Credibility
Demeanor Nonverbal language Demeanor issues should be your cue to ask
more questions Non-cooperation
Look for short, abrupt answers or refusal to answer
OK to ask, “you seem reluctant to answer these questions - can you tell me why?”
Logic/Consistency Ask “Does this make sense?”
Corroborating evidence
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Making Credibility Determinations
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Look at consistency of story – substance and chronology of statements
Consider inherent plausibility of all information given
Look for the amount of detail (facts) provided, factual detail should be assessed against general allegations, accusations, excuses or denials that have no supporting detail
Pay attention to non-verbal behavior, but don’t read too much into it
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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Analytic to Use in Making A Finding
Parse the policy (policies) that form basis of investigation
Address key issues identified Assess whether answers are factual, opinion-based,
or circumstantial (assess their evidentiary value) Weigh other elements of evidence (relevance &
credibility) Withhold judgment until all evidence has been
considered Determine whether more likely than not policy
(policies) has been violated
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Applying the Preponderance Standard to
Your Analysis Use language the community understands
50.1% (50% plus a feather) “More likely than not” The “tipped scale” Try NOT to use just the term “preponderance
of the evidence” - it is not common language Should be articulated throughout your
policy, procedure, investigation and hearings
Educate the parties and their advisors
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Investigation Notes and Report
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Note Taking Considerations
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.
Date all records and include who was present at any meetings; number pages
Keep records of all contacts including e-mail and phone calls with all parties
Use pre-prepared numbered questions as a framework, but be flexible
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Note-Taking: Other Considerations
Notes should be free from bias and subjectivity
Notes should be complete and detailed 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 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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Note-taking: Other Considerations
Taking notes may slow down the interview in a good way- may help detect deception
Note-taking should occur throughout the entire interview, not just when the accused individual makes a pertinent disclosure or an “incriminating”
Remember that a student has the right to inspect their education record under FERPA
“Sole possession” FERPA exception is very limited
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Note-Taking
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 Summarize your perceptions of credibility,
honesty Record any requests or unusual interaction with
interviewee Review and finalize notes immediately upon
completion of interview
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Preparing 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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The Investigation Report
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 ant relations between them Summarize information collected Identify evidence collected (direct,
circumstantial, documentary, expert) Assess weight, relevance and credibility of
information gathered
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The Investigation Report
Explain unsuccessful attempts to collect information and/or interview witnesses
Highlight key factual findings for each allegation 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
The file should contain all policies and procedures currently applicable.
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JurisdictionTimelines and Timeliness Confidentiality
OTHER ISSUES119
Jurisdiction
For Sexual Misconduct/Title IX Cases There is an expectation that you have
SOME jurisdiction over off campus incidents Jurisdictional Limitations
Geographic Temporal
When is a student a “student?” Application-Admission-Registration-
Attendance-Breaks
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Timelines
Ensure that all steps in the investigation are conducted according to the timelines in the institution’s policy.
Parties and witnesses should be interviewed as soon as possible so that recollections are as fresh and accurate
as possible to secure necessary remedies as soon as
possible Document unavoidable delays Notice any extensions provided
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“Confidentiality” Of The Process
Privacy of the parties’ and witnesses’ names and the allegations should be maintained to the greatest extent possible.
Absolute confidentiality is not possible – must explain limitations of confidentiality
Best practice not to furnish the respondent with a copy of the complaint without redaction or summarizing
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Investigating Retaliation Claims
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Investigating Retaliation Claims
Keys To Understanding Establishing retaliation, unlike
establishing sexual harassment, requires proving motive – the intent to retaliate.
Since someone’s intention is rarely displayed openly, the legal framework is about whether a retaliatory motive can be inferred from the evidence.
Gathering details of what occurred is critical.
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Investigating Retaliation Claims
Preliminary Elements of a ClaimThe following elements establish an inference of
retaliation: Did the complainant engage in protected activity?
Usually straightforward Unless there is a question of reasonableness of belief or manner
Was the complainant subsequently subjected to adverse action?
Do the circumstances suggest a connection between the protected activity and adverse action?
Did the individual accused of retaliation know about the activity?
How soon after the protected activity did the adverse action occur?
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Investigating Retaliation Claims
Rebutting The Inference What is the stated non-retaliatory reason for
the adverse action? Is the explanation for the action legitimate on its
face? Is there evidence that the stated legitimate
reason is a pretext? This is the heart of the case – is the explanation
the true reason? The preponderance of the evidence must
establish that the adverse action was motivated by retaliation.
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Investigating Retaliation Claims
Is The Explanation Legitimate? Factors to consider:
The explanation makes sense The action was consistent with
established policy or practice No adverse action was taken against
others who engaged in protected activity Complainant was treated the same as
other individuals.
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Investigating Retaliation Claims
Is There Evidence Of Pretext? Factors to consider:
The explanation given is not credible Other actions by the same individual are
inconsistent with the explanation. The explanation is not consistent with
past policy or practice. There is evidence of other individuals
treated differently in similar situations.
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Final Advice Focus On Remedies
Throughout process Investigation Stop behavior Remediate impact (often not sanction-based) Prevent re-occurrence
Consider the effect of “educational” sanctions 2nd victim is both Title IX and negligence concern
Consider what educational/training needs to be implemented, changed, etc.
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CASE STUDY
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Strategy for Case Study
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 want to interview?
Order of interviews What other information do you need? Do you need to interview an expert witness? What questions do you want to ask Dencie? What questions do you want to ask Will? What questions do you need to ask from witnesses?
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THANK YOU!
Questions?
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