1. CAMPUS TITLE IX INVESTIGATION TRAINING presented by Saundra K
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.

2. © 2012 ATIXA all rights reserved
MEET YOUR PRESENTERS
Brett 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

3. © 2012 ATIXA all rights reserved
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.
© 2012 ATIXA all rights reserved

4. © 2011 ATIXA all rights reserved
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.
© 2011 ATIXA all rights reserved

5. © 2012 ATIXA all rights reserved
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.
© 2012 ATIXA all rights reserved

6. Title IX
“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 1972
Implementing Regulations at:
20 U.S.C. § 1681 & 34 C.F.R. Part 106
© 2012 ATIXA all rights reserved

7. The IX Commandments Thorough Reliable Impartial Prompt Effective
Equitable
End the Discrimination
Prevent its Recurrence
Remedy the effects upon the victim & community
Investigation
Process
Remedies
© 2012 ATIXA all rights reserved

8. Investigation Process Overview
© 2012 ATIXA all rights reserved

9. The Process Incident Investigation
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
© 2012 ATIXA all rights reserved

10. 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

11. 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
© 2012 ATIXA all rights reserved

12. 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

13. 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
© 2012 ATIXA all rights reserved

14. 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 days will vary by case)
© 2012 ATIXA all rights reserved

15. 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
© 2012 ATIXA all rights reserved

16. 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
© 2012 ATIXA all rights reserved

17. 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
© 2012 ATIXA all rights reserved

18. 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.
© 2012 ATIXA all rights reserved

19. 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.
© 2012 ATIXA all rights reserved

20. Interviewing
© 2012 ATIXA all rights reserved

21. 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
© 2012 ATIXA all rights reserved

22. 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
© 2012 ATIXA all rights reserved

23. 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
© 2012 ATIXA all rights reserved

24. 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, s)
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

25. Remember: As an investigator, you have no “side” other than the integrity of the process!
© 2012 ATIXA all rights reserved

26. Establish Pre-interview Ground Rules
Can subject record?
Who will attend?
How will records be kept?
Advisors
Attorneys
Roommates, Parents, etc.
FERPA/confidentiality
© 2012 ATIXA all rights reserved

27. 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
© 2012 ATIXA all rights reserved

28. 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?
© 2012 ATIXA all rights reserved

29. 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.
© 2012 ATIXA all rights reserved

30. 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

31. 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.
© 2012 ATIXA all rights reserved

32. 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
© 2012 ATIXA all rights reserved

33. Making A Finding Review the policies in play
Weigh evidence (relevance & credibility)
Determine whether more likely than not policy (policies) has been violated
© 2012 ATIXA all rights reserved

34. Investigation Notes and Report
© 2012 ATIXA all rights reserved

35. 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 and phone calls with all parties
© 2012 ATIXA all rights reserved

36. 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
© 2012 ATIXA all rights reserved

37. 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.
© 2012 ATIXA all rights reserved

38. 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
© 2012 ATIXA all rights reserved

39. 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
© 2012 ATIXA all rights reserved

40. 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, and social networking messages, etc.
Assessment of weight, relevance and credibility of information gathered
Assessment of credibility of parties
© 2012 ATIXA all rights reserved

41. 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 any relations between them
Summarize information collected
Address evidence collected (direct, circumstantial, documentary, expert)
© 2012 ATIXA all rights reserved

42. The Investigation Report
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.
© 2012 ATIXA all rights reserved

43. The Investigation Report
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
© 2012 ATIXA all rights reserved

44. Questions? THANK YOU! Brett@atixa.org Saundra@atixa.org
© 2012 ATIXA all rights reserved