2Material presented to you during the 2012 Donald D Material presented to you during the Donald D. Gehring Academy is made available to you as a registrant of the Academy. Further transmission of materials presented during the Academy may be permitted within ASCA member institutions, if the author and ASCA are credited as a source. Any additional transmission of any presented or posted material will require approval of the author and ASCA. All rights reserved.
3SEXUAL MISCONDUCT TRAINING Presenters:Tamara L. King, J.D.W. Scott Lewis, J.D.Saundra K. Schuster, J.D.Daniel C. Swinton, J.D.
5Relevant Statistics20% of college women will be victims of attempted or actual sexual assault6% of undergraduate college men will be victims of attempted or actual sexual assault4 in 10 violent crimes against college students are committed by offenders perceived by the victim to be using drugs or alcoholCampus Sexual Assault Study Final Report. (Christopher Krebs, et al.)National Criminal Justice Service, 2007
6Relevant StatisticsBetween 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 attemptedHalf 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 rapeFewer than 5% of student victims report to authorities or law enforcement
7Campus Legal Standards Regarding Sexual Misconduct UNDERSTANDING THE LEGAL LANDSCAPE:College PolicyShould reflect the lawShould reflect college cultureTitle IXSignificant case lawOCR GuidelinesClery Act, “Campus Sexual Assault Victims Bill of Rights”Title VIIWHAT CREATES THE FRAMEWORK FOR ADJUDICATION??
8Title 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 1972Implementing Regulations at:20 U.S.C. § 1681 & 34 C.F.R. Part 106
9Title IX Federal Law enacted in 1972 Intended to end sex discrimination in all areas of educationMade non-discrimination based on gender a condition of participation in all federally funded education programs for both public and private institutionsIt applies to educational program equity, such as in athletics, and also to sexual harassment and sexual assaultCompliance with the law is overseen by the U.S. Dept. of Education, Office of Civil RightsIN 1992 THE U.S. SUPREME COURT DECIDED FRANKLIN V. GWINETT COUNTY PUBLIC SCHOOLS WHICH ESTABLISHED THAT SEXUAL HARASSMENT CONSTITUTED SEX DISCRIMINATION UNDER TITLE IXGWINETT ALSO PROVIDED A PRIVATE RIGHT FOR THE RECOVERY OF MONETARY DAMAGES UNDER TITLE IXHOWEVER, GWINETT DID NOT ADDRESS ISSUES CONCERNING THE EDUCATIONAL INSTITUITON’S LIABILITY—THAT CAME LATER IN THE DAVIS CASE (1999) AND THE GEBSER CASE (1998)
10Cases That Created the Title IX Liability Standard Franklin v. Gwinnett Public SchoolsGebser v. Lago VistaDavis v. Monroe County Bd of Education
11Franklin v. Gwinnett Public Schools U.S. Supreme Ct. (Feb. 26, 1992)Case involved faculty/student sexual harassmentThe 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 IXHowever, this case did not address issues concerning the educational institution’s liabilityGWINNETT WAS SEXUAL HARASSMENT BY A TEACHER, THEREFORE DID NOT IMPLICATE INSTITUTIONAL LIABILITY HOWEVER, THIS CASE ALSO CREATED A PRIVATE RIGHT OF ACTION FOR DAMAGES UNDER TITLE IX
12Gebser v. Lago Vista Indep School U.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; ANDThe official “failed to adequately respond” to the harassment and, in failing to respond, must have acted with “deliberate indifference.”THIS CASE INVOLVED A CONSENSUAL RELATIONSHIP BETWEEN A HIGH SCHOOL STUDENT AND A TEACHER.THE STUDENT DID NOT REPORT THE RELATIONSHIP TO SCHOOL OFFICIALS.AFTER THE COUPLE WAS DISCOVERED HAVING SEX, THE TEACHER WAS ARRESTED AND FIRED.THE STUDENT SUBSEQUENTLY SUED THE SCHOOL FOR DAMAGES ALLEGING A VIOLATION OF TITLE IX.THE COURT SAID THAT DAMAGES FOR TEACHER-STUDENT SEXUAL HARASSMENT MAY NOT BE RECOVERED UNLESS: 1. A SCHOOL OFFICIAL WITH AUTHORITY TO CORRECT THE BEHAVIOR2. HAD ACTUAL NOTICE OF THE HARASSMENT; AND3. WAS DELIBERATELY INDIFFERENT TO IT.
13Davis v. Monroe Cty. Bd. Of Ed. U.S. Supreme Ct. (May 24, 1999) This case involved student to student sexual harassmentThe first major ruling on a school’s liability for student to student sexual harassmentSupreme 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”.THE FIRST MAJOR RULING ON A SCHOOL’S LIABILITY IN STUDENT TO STUDENT SEXUAL HARASSMENTA 5:4 RULING – A 1 VOTE SHIFT AND THERE WOULD BE NO JUDICIAL RECOURSE UNDER TITLE IX FOR STUDENT:STUDENT HARASSMENTA PRIVATE DAMAGES ACTION MAY LIE AGAINST A SCHOOL FOR STUDENT-TO-STUDENT SEXUAL HARASSMENT LIABILITY, BUT ONLY WHERE THE STUDENT IS ABLE TO SHOW THAT AN APPROPRIATE SCHOOL OFFICIAL HAD ACTUAL KNOWLEDGE OF THE HARASSMENT AND WAS DELIBERATELY INDIFFERENT TO IT.ACTUAL KNOWLEDGEDELIBERATELY INDIFFERENTMISCONDUCT = SEVERE, PERVASIVE, OR OFFENSIVEDENIES EQUAL ACCESS TO EDUCATION
14OTHER RELEVANT CASESJackson v. Birmingham Bd. of Ed., U.S. Supreme Court, 2005DeJohn v. Temple University, 3rd Circuit Court of Appeals, Aug. 2008Holcomb v. Iona, 2nd Circuit Court of Appeals, April 2008After petitioner, the girls’ basketball coach at a public high school, discovered that his team was not receiving equal funding and equal access to athletic equipment and facilities, he complained unsuccessfully to his supervisors. He then received negative work evaluations and ultimately was removed as the girls’ coach. He brought this suit alleging that respondent school board (Board) had retaliated against him because he had complained about sex discrimination in the high school’s athletic program, and that such retaliation violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), which provides that “[n]o person … shall, on the basis of sex, be … subjected to discrimination under any education program … receiving Federal financial assistance.” The District Court dismissed the complaint on the ground that Title IX’s private cause of action does not include claims of retaliation, and the Eleventh Circuit agreed and affirmed. The appeals court also concluded that, under Alexander v. Sandoval, 532 U.S. 275, the Department of Education’s Title IX regulation expressly prohibiting retaliation does not create a private cause of action, and that, even if Title IX prohibits retaliation, petitioner is not within the class of persons the statute protects.Held: Title IX’s private right of action encompasses claims of retaliation against an individual because he has complained about sex discrimination. Pp. 3—15. (a) When a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional “discrimination” “on the basis of sex,” in violation of Title IX. This Court has held that Title IX implies a private right of action to enforce its prohibition on intentional sex discrimination, Cannon v. University of Chicago, 441 U.S. 677, 690—693, and that that right includes actions for monetary damages by private persons, Franklin v. Gwinnett County Public Schools, 503 U.S. 60, and encompasses intentional sex discrimination in the form of a recipient’s deliberate indifference to sexual harassment of a student by a teacher, Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290—291, or by another student, Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 642. In all of these cases, the Court relied on Title IX’s broad language prohibiting a funding recipient from intentionally subjecting any person to “discrimination” “on the basis of sex.” Retaliation is, by definition, an intentional act. It is a form of “discrimination” because the complainant is subjected to differential treatment. Moreover, it is discrimination “on the basis of sex” because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. The Eleventh Circuit’s conclusion that Title IX does not prohibit retaliation because it is silent on the subject ignores the import of this Court’s repeated holdings construing “discrimination” under Title IX broadly to include conduct, such as sexual harassment, which the statute does not expressly mention. The fact that Title VII of the Civil Rights Act of 1964 expressly prohibits retaliation is of limited use with respect to Title IX. Title VII is a vastly different statute, which details the conduct that constitutes prohibited discrimination. Because Congress did not list any specific discriminatory practices in Title IX, its failure to mention one such practice says nothing about whether it intended that practice to be covered. Moreover, Congress’ enactment of Title IX just three years after Sullivan v. Little Hunting Park, Inc., 396 U.S. 229–in which this Court interpreted 42 U.S.C. § 1982’s general prohibition of racial discrimination to include retaliation against a white man for advocating the rights of blacks–provides a realistic basis for presuming that Congress expected Title IX to be interpreted in conformity with Sullivan. Pp. 3—7. (b) The Board cannot rely on this Court’s holding in Sandoval, supra, at 285, that, because Title VI of the Civil Rights Act of 1964 itself prohibits only intentional discrimination, private parties could not obtain redress for disparate-impact discrimination based on the Justice Department’s Title VI regulations forbidding federal funding recipients from adopting policies with such an impact. Citing the Education Department’s Title IX retaliation regulation, the Board contends that Jackson, like the Sandoval petitioners, seeks an impermissible extension of the statute when he argues that Title IX’s private right of action encompasses retaliation. This argument, however, entirely misses the point. The Court does not here rely on the Education Department regulation at all, because Title IX’s text itself contains the necessary prohibition: Retaliation against a person who speaks out against sex discrimination is intentional “discrimination” “on the basis of sex” within the statute’s meaning. Pp. 7—9. (c) Nor is the Court convinced by the Board’s argument that, even if Title IX’s private right of action encompasses discrimination, Jackson is not entitled to invoke it because he is an “indirect victi[m]” of sex discrimination. The statute is broadly worded; it does not require that the victim of the retaliation also be the victim of the discrimination that is the subject of the original complaint. Where the retaliation occurs because the complainant speaks out about sex discrimination, the statute’s “on the basis of sex” requirement is satisfied. The complainant is himself a victim of discriminatory retaliation, regardless of whether he was the subject of the original complaint. Cf. Sullivan, supra, at 237. Congress enacted Title IX not only to prevent the use of federal dollars to support discriminatory practices, but also “to provide individual citizens effective protection against those practices.” Cannon, supra, at 704. This objective would be difficult to achieve if persons complaining about sex discrimination did not have effective protection against retaliation. Pp. 9—12. (d) Nor can the Board rely on the principle that, because Title IX was enacted as an exercise of Congress’ Spending Clause powers, a private damages action is available only if the federal funding recipient had adequate notice that it could be held liable for the conduct at issue, see, e.g., Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17. Pennhurst does not preclude such an action where, as here, the funding recipient engages in intentional acts that clearly violate Title IX. See, e.g., Davis, supra, at 642. Moreover, the Board should have been put on notice that it could be held liable for retaliation by the fact that this Court’s cases since Cannon have consistently interpreted Title IX’s private cause of action broadly to encompass diverse forms of intentional sex discrimination; by Title IX itself, which expressly prohibits intentional conduct that violates clear statutory terms, Davis, 526 U.S., at 642; by the regulations implementing Title IX, which clearly prohibit retaliation and have been on the books for nearly 30 years; and by the holdings of all of the Courts of Appeals that had considered the question at the time of the conduct at issue that Title IX covers retaliation. The Board could not have realistically supposed that, given this context, it remained free to retaliate against those who reported sex discrimination. Cf. id., at 644. Pp. 12—14. (e) To prevail on the merits, Jackson will have to prove that the Board retaliated against him because he complained of sex discrimination. At the present stage, the issue is not whether he will ultimately prevail, but whether he is entitled to offer evidence to support his claims. P. 15.309 F.3d 1333, reversed and remanded. O’Connor, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Kennedy, JJ., joined.
15Remedies 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)
16Role Of OCR & Title IX OCR administratively enforces Title IX by: 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 sexIf OCR identifies a violation, Title IX requires OCR to attempt to secure voluntary complianceTHE OCR WILL CONSIDER THE FOLLOWING:THE DEGREE TO WHICH THE CONDUCT AFFECTED ONEOR MORE STUDENTS EDUCATIONTHE TYPE, FREQUENCY AND DURATION OF THE CONDUCTTHE IDENTITY AND RELATIONSHIP BETWEEN THE ALLEGED HARASSER AND THE SUBJECT OR SUBJECTS OF THE HARASSMENTTHE NUMBER OF INDIVIDUALS INVOLVEDTHE AGE AND SEX OF THE ALLEGED HARASSER AND THE SUBJECT OR SUBJECTS OF THE HARASSMENTTHE SIZE OF THE SCHOOL, LOCATION OF INCIDENTS, AND CONDUCT WHICH THEY OCCURREDOTHER INCIDENTS AT THE SCHOOLINCIDENTS OF GENDER BASED, BUT NON-SEXUAL HARASSMENT
17Office Of Civil Rights Establishes Regulatory Liability Standards Provides 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 recommendationsTITLED: “REVISED SEXUAL HARASSMENT GUIDANCE: HARASSMENT OF STUDENTS BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES”MAKES CLEAR THAT THE HOLDINGS IN DAVIS AND GEBSER, WERE LIMITED TO MONETARY DAMAGES, BUT THE D.O.E. HAS THE POWER TO SET THE STANDARDS TO ENFORCE NONDISCRIMINATIONCOLLEGES AND UNIVERSITIES REMAIN ACCOUNTABLE UNDER THE SEXUAL HARASSMENT GUIDELINES OF THE U.S. DEPARTMENT OF EDUCATION’S OFFICE OF CIVIL RIGHTSTHE REVISED GUIDANCE REPLACED THE 1997 GUIDANCE AFTER THE U.S. SUPREME COURT RULED IN THE GEBSER v. LAGO VISTA AND THE DAVIS v MONROE COURTY SCHOOL CASES
18These steps are the school’s responsibility whether or not the student who was harassed makes a complaint or otherwise asks a school to take actionOCR acknowledges that in circumstances where the complainant requests confidentiality or refuses to participate, the school’s ability to take action may be limitedThe school is still required to take all reasonable steps to investigate and respondIF HARASSMENT HAS OCCURRED, DOING NOTHING IS ALWAYS A WRONG APPROACH, BUT THERE MAY BE MORE THAN ONE RIGHT WAY TO RESPOND
19OCR also initiates Voluntary Compliance Reviews 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 ReviewsComplaints 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 environmentTHE OCR REVISED GUIDANCE MOVES AWAY6 FROM SPECIFIC LABELS TO TYPES OF SEXUAL HARASSMENT IT GENERALLY REFERS TO HARASSMENT AS THAT CONDUCT THAT DECREASES OR LIMITS A STUDENT’S ABILITY TO PARTICIPATE IN OR BENEFIT FROM THE EDUCATION PROGRAM. “EDUCATION PROGRAM OR ACTIVITY” INCLUDES ALL OF THE SCHOOL’S OPERATIONS, INCLUDING ACADEMIC, EDUCATIONAL, EXTRA-CURRICULAR, ATHLETIC, WHETHER IN THE FACILITIES OF THE SCHOOL, ON A BUS, AT A CLASS OR TRAINING PROGRAM SPONSORED BY THE SCHOOL AT ANOTHER LOCATIONOCR CONSIDERS ALL RELEVANT CIRCUMSTANCES WHEN EVALUATING SEXUAL HARASSMENT ALLEGATIONS. AS STATED IN THE DAVIS CASE, AN EVALUATION MUST INVOLVE THE CONSTELLATION OF SURROUNDING CIRCUMSTANCES, EXPECTATIONS AND RELATIONSHIPS
20OCR Title IX Compliance Requirements: Non-Discrimination Statement 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)
21OCR Title IX Compliance Requirements Policies and Procedures Publication of Policies and Procedures that establish:Effective reporting and response protocolAppropriate grievance proceduresFair and equitable investigationsEquitable remediesPreventing recurrenceIncorporate preventive trainingAppointment of a Title IX Coordinator
22More on Policies & Procedures Policies should clearly define expected/prohibited conductPolicies should be regularly updated and revisedProcedures should clearly channel grievants to appropriate resourcesProcedures should provide for the equitable remedying of complaints
23Effective 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 goalThe “Effective Requirement”To stop the sexual harassment or sexual violence (ensure that the discriminatory conduct does not continueRemedy the effects of the discrimination on the student, to the extent practical and possibleProvide sanctions that are reasonably calculated to prevent the reoccurrence of the discriminatory conductWhat is actual notice?To whom must it be given?Officials of the institution who have remedial authorityWhat must it include?Does it have to take the form of a written complaint?Does a third-party report qualify?What about anonymous reports?Each complaint is governed by the principle that you take it as far as you need to. If you commence a preliminary inquiry, and that inquiry leads to further suspicion, you will broaden the inquiry to a full-fledged investigation. An investigation itself, even one that clears an accused student, is a response under Title IX. It may be all that is required, depending on the findings. If you are challenged under Title IX by a lawsuit or OCR investigation, you may be accused of deliberate indifference. One of the best ways to prove that you were not deliberately indifferent is to show that a comprehensive civil rights investigation was completed and documented.
24Grievance Procedures Must Include Notice: Provide notice of proceduresApplication: Applies to complainants alleging harassment on the basis of sexInvestigation: Adequate, reliable and impartialTimeframe: Define reasonable timeframeOutcome: Both complaining party and accused should receive notice of outcomeAssurances: Institution assures it will take steps to prevent recurrenceRetaliation: Provisions to prohibit retaliationAppeal: Offer opportunity to appeal findings or remedies
25Grievance Procedures Describe who may file a grievance Describe what constitutes a grievanceDefine clear limits for submitting a grievance and prompt & effective responseSpecify the availability of any assistance for the person who initiates the grievanceDefine the number and levels of steps in the processDefine the notice requirements
26Grievance Procedures Identify the timelines for each step Identify the roles and/or selection of persons involved in the grievance processState the right of all parties to impartial decision makersState protection of grievant from harassment and retaliationState right of either party to appeal outcome
27Fair and Equitable Investigations Interview all persons involvedDo not interview the alleged harasser at the same time as the victim/complainantProvide complainant, accused and any witnesses the opportunity to have a representative accompany them during investigationsKeep complete records of investigations, including a detailed description of allegations, notes on all interviews, outcome of investigations, and any action takenAbide by procedural timeframes set in policyProvide a written report of investigation & outcome
28Prevention 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.
29Preventing Recurrence Identify patterns and systemic problemsCampus-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 patternsProvide technical assistance to campus law enforcement on Title IX compliance
30The IX Commandments Thorough Reliable Impartial Prompt Effective EquitableEnd the DiscriminationPrevent its RecurrenceRemedy the effects upon the victim & communityInvestigationProcessRemedies
31Preventive Training Identify qualified trainers Must address legal and procedural standardsIncorporate timeframes for review and update of policies and specify the office in charge of updatesIdentify qualified trainersConduct regular sexual misconduct training for all staff & studentsIdentify and publish additional training or informational opportunitiesEnsure new policies and procedures are appropriately noticed and published
33Title IX CoordinatorTitle IX requires that each institution that receives federal funds must protect individuals from gender discriminationTo assist in accomplishing that task, Title IX requires that each institution select a Title IX CoordinatorTitle 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 regulationsKeep informed of current research and judicial decisions related to Title IX and gender equity
34Duties Of Title IX Coordinator Participate in the development , implementation and evaluation of the institution’s Title IX policies and proceduresDevelop sexual harassment Title IX complaint procedures for students and staffProvide public notice of the complaint procedures and the name and contact information for the Title IX CoordinatorMonitor and evaluate the institution’s Title IX compliance efforts and make recommendations for any appropriate changesProvide in-service training to ensure institutional community understands Title IX policies and procedures
35Sent by Office of Civil Rights Dear Colleague LetterSent by Office of Civil RightsApril 4, 2011
36DCL HighlightsOCR stated specifically that they view sexual violence as a form of sexual harassment and therefore a form of gender discrimination covered by Title IXOCR reiterated that campuses that do not take jurisdiction over off-campus sexual misconduct may fail to remedy discrimination covered by Title IXNotice = Duty of immediate Title IX-based prompt and effective action to eliminate harassment, prevent its recurrence, and remedy its effects.
37DCL HighlightsOCR 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 partiesLaw enforcement action does not relieve a campus from its own INDEPENDENT investigative responsibility under Title IXThough some short term delay to avoid obstructing law enforcement is possible until gathering of evidence is completeInvestigation must be prompt, thorough, impartial
38DCL HighlightsSanctioning the offender is not the only remedy for harassmentOther steps to limit harassment, prevent recurrence required even when complainant will not allow campus to pursue complaintTraining can help to show compliance effortsEquitable 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.
39Equity Requires Immediate Action Immediate investigationMOU with local police cannot excuse Title IX delayPrompt resolutionInterim action to protect alleged victim/campusEquity calls for the institution to make the most reasonable remedy applying “totality of the circumstances”Must maintain documentation of all proceedings
40Equitable Process is Critical Should afford opportunity for informal resolutionThat does not mean mediation.Preponderance of evidence is the ONLY appropriate standard for resolving Title IX complaintsRape, sexual assault, sexual harassment, stalking, gender- based bullying, intimate partner violence, etc.Must determine if Code of Conduct system works for providing equitable process
41Equity Requires Training Title IX Coordinator(s)Intake staff/facultyCampus Law EnforcementInvestigatorsHearing OfficersTraining on and knowledge of sexual violenceConfidentiality requirementsDue process rights… should not “restrict or unnecessarily delay Title IX protections for complainant”Appeals Officers (the biggest area of risk currently)
42Equity Requires Clear Timeframes Timeframe for each stage of process, and process for extensionsParties entitled to periodical status updates (FERPA does not conflict with Title IX)60 days to resolution; varies situationallyNotification of outcomes to parties permitted by FERPA, required by Clery (outcome and sanctions)Title IX rules in a conflict with FERPAIN WRITING!Entitled to status updates on appeals, too, regardless of which party appeals.
43Title IX Coordinator Role: More Details from the DCL Each campus must identify at least one Title IX CoordinatorMore than just a contact for DoED inquiriesMust disseminate/publish contact information for coordinatorOversees trainingAssures equitable remedyIdentifies patterns and systemic problemsCannot have conflict of interest in roleProvides technical assistance to campus law enforcement on Title IX compliance
45The Role of the Title IX Officer in the Investigation Process
46Supervisor Of The Investigation Structure The Title IX Officer is responsible for:The appointment of investigatorsSupervision of investigators and investigationsStrategizing investigationsAssurance of initial remedial actionsTimeline complianceCommunication and coordination of investigation teamsProviding institutional memory to investigatorsTraining of investigators, hearing boards & appeals officers
47Training Is CriticalIn 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 scheduleUpdate and refresh
48Example Training Competencies PatternsPredationRecantationCommunication TrainingRape MythsConsentForceIncapacityStrategic processQuestioning skillsEvaluating evidenceEstablishing rapportGood report writingAlcohol & Other drugsVictimology
49Training Should Also Include The institution’s policies and proceduresApplicable legal standards and frameworkApplicable federal and state law and court decisionsInvestigative techniques including specifically interviewing witnessesCultural sensitivity; diversity competenceHow to analyze evidence in relation to the standardHow to synthesize evidence, write reports, make findings
50When Processes Collide What happens when the employee is a student or the student is an employee?There is a differenceOversight of Deputy Coordinators/InvestigatorsAbility to merge/combine the investigatory and hearing processesCoordination of remedies in student-to-employee and employee-to-student grievances
52Why 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 responseCivil Rights Investigation Model most effective for victim- based violationsCampus conduct process involves passive receipt of informationInvestigation process involves strategic information gathering, comprehensive investigation, credibility informationBetter information leads to better decisionsInvestigation model can stand alone or be grafted onto and/or integrated into existing procedures.ADVERSARIAL MODELS RELY ON THE PARTIE’S ABILITY TO ANTICIPATE WHAT QUESTIONS A BOARD WILL HAVE AND WHAT INFORMATION IT WILL NEEDBOARDS GO INTO DELIBERATIONS WITHOUT CRITICAL INFORMATION THEY NEED TO ASSESS A COMPLAINT BECAUSE NONE OF THE PARTIES PROVIDED IT.STUDENT CONDUCT ADMINISTRATORS HAVE TO BE CAUTIOUS ABOUT WEARING TOO MANY HATS IN THE PROCESS (CHIEF INVESTIGATOR, PRESENTER OF THE COMPLAINT, CUSTODIAN OF THE CONDUCT PROCESS, IMPLEMENTER OF SANCTIONS)
53Should There Be More Than One Investigator? No specific requirement, but:Investigation must be prompt, thorough and impartialInvestigatior must collect the maximum amount of relevant information available to make a determinationA pool of investigators may help to ensure that your investigation meets these requirements.
54Additional Benefits of Team Investigations Who investigates may be strategic to each specific caseAbility to brainstorm investigation steps and lines of questioning with co-investigators, co-facilitate interviewsFlexibility if there is any conflict with investigators and parties
55How Is Investigation Different In Hr Contexts Than In Student Conduct Contexts? Role of FERPA, Employee/Faculty Handbook/Collective Bargaining Agreement impacts processIssues of First Amendment protectionsState Public Records LawsAt-will v. property interestDue Process and Fundamental Fairness
56An Analytic for Sexual Misconduct Allegations UNDERSTANDINGTHE FORCE – INCAPACITY – CONSENT CONSTRUCT
57Overview of the Three Questions Was force used by the accused individual to obtain sexual access?Was the victim incpacitated? Did the accused individual know, or should s/he have known that the alleged victim was incapacitated?What clear words or actions by the complainant gave the accused individual permission for the specific sexual activity that took place?
58Force 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 threatIntimidation -- an implied threat that menaces and/or causes reasonable fearCoercion – the application of an unreasonable amount of pressure for sexual access.Consider:FrequencyIntensityIsolationDuration
59ForceBecause 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.
60IncapacityIf 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 howADDRESS THIS QUESTION SECOND, BECAUSE IT CAN BE RULED OUT QUICKLY AND EFFICIENTLY IF ALCOHOL, DRUGS OR OTHER INCAPACITY ARE NOT IN ISSUE. IF NOT, MOVE ON TO THE 3RD AND FINAL QUESTION ABOUT CONSENT.
61IncapacitySecond, 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.
62Incapacity Information Incapacitation is a determination that can only be made after the incident in light of all the facts availableAssessing incapacitation is very fact dependentBlackouts are frequent issuesBlackout = incapacitationBlackout = no working (form of short term) memory, thus unable to understand who, what, when, where, why or howPartial blackout must be assessed as wellWhat if the accused student was drunk too?A PERSON WHO IS PHYSICALLY INCAPICATED AS A RESULT OF ALCOHOL OR OTHER DRUG CONSUMPTION (VOLUNTARILY OR INVOLUNTARILY)ONE WHO IS UNCONSCIOUS, UNAWARE OR OTHERWISE PHYSICALLY HELPLESSPHYSICALLY INCAPICATEED PERSONS ARE CONSIDERED INCPABLE OF GIVING EFFECTIVE CONSENT WHEN THEY LACK THE ABILITY TO APPRECIATE THE FACT THAT THE SITUATION IS SEXUAL AND/OR CANNOT RATIONALLY AND REASONABLY APPRECIAT THE NATURE AND EXTENT OF THAT SITUATIONYOU WILL NEED TO DECIDE IF INCAPACITATION IS TO BE INCLUDED IN YOUR POLICY OR SIMPLY AS A PART OF THE TRAINING TO PROVIDE ADDITIONAL GUIDANCE
63ConsentThe 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 actionsIndicating permission to engage in mutually agreed upon (sexual) activity
64Rules To RememberNo means no, but nothing also means no. Silence and passivity do not equal permissionTo be valid, consent must be given prior to or contemporaneously with the sexual activityConsent can be withdrawn at any time, as long as that withdrawal is clearly communicated by the person withdrawing it
67The Investigation Process IncidentNoticeStrategy developmentInformal, Administrative or Formal Resolution?Investigation PlanInterview all witnessesGather and assesses evidenceWrite the investigation reportMake a finding or recommendation (will vary by school)May recommend sanctionAppeal
68When Do You Investigate? Receive ComplaintActual Notice or Constructive NoticeHow do rumors, gossip, online postings, etc. fit in?Once notice exists, the duty to investigate is absoluteSmall “i” preliminaryBig “I” comprehensive investigation
69Notice StandardOCR 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 knownThe OCR standard of “knew or should have known” is more favorable to student complainants than the “actual knowledge” standard used to determine civil liabilityComplaints 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 environmentTHE OCR REVISED GUIDANCE MOVES AWAY6 FROM SPECIFIC LABELS TO TYPES OF SEXUAL HARASSMENT IT GENERALLY REFERS TO HARASSMENT AS THAT CONDUCT THAT DECREASES OR LIMITS A STUDENT’S ABILITY TO PARTICIPATE IN OR BENEFIT FROM THE EDUCATION PROGRAM. “EDUCATION PROGRAM OR ACTIVITY” INCLUDES ALL OF THE SCHOOL’S OPERATIONS, INCLUDING ACADEMIC, EDUCATIONAL, EXTRA-CURRICULAR, ATHLETIC, WHETHER IN THE FACILITIES OF THE SCHOOL, ON A BUS, AT A CLASS OR TRAINING PROGRAM SPONSORED BY THE SCHOOL AT ANOTHER LOCATIONOCR CONSIDERS ALL RELEVANT CIRCUMSTANCES WHEN EVALUATING SEXUAL HARASSMENT ALLEGATIONS. AS STATED IN THE DAVIS CASE, AN EVALUATION MUST INVOLVE THE CONSTELLATION OF SURROUNDING CIRCUMSTANCES, EXPECTATIONS AND RELATIONSHIPS
70Actual Notice Individual files a Title IX grievance Individual notifies the Title IX Coordinator or other responsible employeeIndividual complains to campus police or security officialStaff member witnesses harassmentIndirect notice from sources such as flyers posted on campus, media, online postings, video
71Constructive NoticeIn 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, orbased 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.
72Notice & Employee Obligations 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 actionThis 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
73Responsible Employee and Reporting Obligations A responsible employee includes any employee who:Has the authority to take action to redress the harassment,Has the duty to report harassment or other types of misconduct to appropriate officials,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.
74Training For Responsible Employee Colleges and universities should ensure that employees are trained so that:Those with authority to address harassment know how to respond appropriatelyOther responsible employees know that they are obligated to report harassment to appropriate officialsEssential Topics for trainingKnowledge of institutional and community resourcesInformation regarding reportingConfidentiality requirementsImportance of remediation
75Informal And Formal Resolution Process OCR endorses and encourages informal resolution, and we believe it is a best practice, as long as it is voluntarySome minor incidents can be resolved through confrontation and/or interventionMore 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
76Strategy is KeyThe 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
77Other 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)
78Understanding 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.
79Ensuring 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 circumstancesWhat 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?
80Todd & Amy Part I Order of interviews 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 interviewsWhat other information do you need?Do you need to interview an expert witness?
82Important to Remember: As an investigator, you have no “side” other than the integrity of the process!
83Demeanor of Investigator Work to establish a baseline of relaxed conversationMaintain good eye contactListen carefully to the answers to your questionAvoid writing while they are talking, if possibleDo not be thinking about your next question while they are talkingAsk questions in a straightforward, non-accusatory mannerNod affirmatively to keep witness talking
84Interview Skills General Interview Skills: Outline your interview questions but be flexiblePlan the order of interviews; may be beneficial to interview Respondent lastMost beneficial to conduct interviews in personInterviews should be conducted in a neutral, quiet and private setting with a minimal or no likelihood of interruptionsExplain process, your role as a neutral fact finder, and privacy protections and limitations
85Interview 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 troubleAscertain who the individual is and their relation to the other parties in the caseCreate comfort with language and sensitive subjectsDocument whether the individual is cooperative or resistantBe professional: gather the facts, make no judgments, make no statements about the parties
86General Interview Skills (cont’d) Pay attention to alcohol / drug consumption and timing of consumptionBe 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 progressesRecommend that the parties and witnesses not discuss the investigationDiscuss non-retaliationObtain FERPA releases
87Establish Pre-interview Ground Rules Can subject record?Who will attend?How will records be kept?AdvisorsAttorneysRoommates, Parents, etc.FERPA/confidentiality
88Questioning Guidelines Take the complaint from start to finish through a process of broad to narrow questions and issues that need to be addressedEngage in a matching processAsk questions about the allegations and the evidence and the policy elementsFocus on areas of conflicting evidence or gaps of informationDrill down on timelines and detailsDon’t leave a question or gap unanswered
89Interviewing 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 applicableProvide a copy of your policies and proceduresAsk them to share a complete account of what occurredGood to have them give full story without asking questions, then drill down on detailsAsk whom they spoke to and told about the incident.Ask about outcry witnesses and possible documentation such as blogs or journal
90Interviewing The Complainant Ask what the complainant’s motivation is for reporting and what they hope to see as a resultFind out if their academics and/or work have been affectedAsk how this has affected them emotionally and /or physicallyAdvise that the complaint will be discussed with the respondent and witnessesDiscuss other reporting options
91Interviewing The Complainant Discuss counseling options if they are not already connectedDiscuss 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 immediatelyLet 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
92Confidentiality 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 requestSo long as doing so does not prevent the school from responding effectively and preventing the harassment of other students or the complainant
93Confidentiality 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
94The Reluctant VictimWhen 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 reconsiderationThose 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
95The Reluctant VictimThe 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
96Interviewing The Respondent Acknowledge difficulty of the situation and thank them for meeting with youProvide a copy of your policies and proceduresAsk them to share a complete account of what occurredQuestion the Respondent as to the allegations- ask a combination of open and closed ended questionsGet detailed- do not leave a question unansweredAsk about witnesses and any other relevant informationAsk about possible motivation for complaint
97Interviewing The Respondent Let the Respondent know next steps and when they will hear from you, and that they can contact you anytime with questionsDiscuss counseling options if they are not already connectedDiscuss non-retaliation and any intermediary steps such as no-contact orders, housing moves and exclusionsIf interim suspension is employed, review the terms and provide a time frame
98Interviewing 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 caseAsk questions; address the need for complete truthfulnessAsk for opinionsAsk if either party spoke about the incidents after they happened.Did they see any change in behavior?
99Interviewing Witnesses Ask if they have been contacted already by one of the partiesAsk if they have made any previous statementsAsk if there is anything you should know that was not been covered or if there is anyone else they think that should be contactedDiscuss non-retaliation and give examples of it as some people only see it as threatsDiscuss privacy; execute FERPA releaseAsk all interviewees to contact you if they remember anything else or want to add to their interview.
100Witness Lists And Flowcharts Witness lists and flowcharts are importantidentify the role/involvement of the witness and his/her relation to other partiesspecify how the witness was identified (referred by a party or on your own)keep track of statements / compare accounts as between witnessesdocument your outreach attemptsquickly locate how to contact a witnessTimeline of incident also very helpful
101Provide Information to those Interviewed Each party should receive:a copy of the policies alleged to have been violateda copy of the procedures that will be used to resolve the complaint, including the rights that extend to the partiesConsider providing parties copies of your non- retaliation provision.
102Todd & 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?
104Understanding 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 placeCertain types of evidence may be relevant to the credibility of the witness, but not to the chargesConsider if drugs or alcohol played a roleIf so, do you know what you need to know about the role of alcohol on behavior? Timing? Incapacitation?Look for evidence of prior planningEvidence is relevant when it tends to prove or disprove an issue in the complaint.Irrelevant evidence admissible in campus proceedings unless prejudicialEvidence must be crediblePresence, proximity, clarity, loyalty, prominence, vehemence, rehearsal, honesty, hidden motives, expertise, emotionality, delivery style
105Understanding 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)What if law enforcement is the sole source of evidence collection?And they won’t release the evidence to you?Does it matter if they are local or campus Law Enforcement/Public Safety?What if there is a pending criminal or civil case?What if the accused individual threatens to call a lawyer or files a lawsuit?What if the alleged victim files a suit or with OCR?
106Credibility Pay attention to the following factors… “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 truthfulMemory errors do not necessarily destroy a witness’ credibilityRefrain from focusing on irrelevant inaccuracies and inconsistenciesPay attention to the following factors…
107Factors to Consider for Credibility DemeanorNonverbal languageDemeanor issues should be your cue to ask more questionsNon-cooperationLook for short, abrupt answers or refusal to answerOK to ask, “you seem reluctant to answer these questions - can you tell me why?”Logic/ConsistencyAsk “Does this make sense?”Corroborating evidence
108Making Credibility Determinations Look at consistency of story – substance and chronology of statementsConsider inherent plausibility of all information givenLook for the amount of detail (facts) provided, factual detail should be assessed against general allegations, accusations, excuses or denials that have no supporting detailPay attention to non-verbal behavior, but don’t read too much into it
109Analyzing the Information Examine only actions that have a direct relation to the situation under reviewExplore motivation, attitude and behavior of complainant, accused and witnessesApply relevant standards:Force, Consent, IncapacityUnwelcomeness; reasonable person; discriminatory effectAnalyze the broadest, most serious violations first and make a determination of each and every violation alleged
110Analytic to Use in Making A Finding Parse the policy (policies) that form basis of investigationAddress key issues identifiedAssess 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 consideredDetermine whether more likely than not policy (policies) has been violated
111Applying the Preponderance Standard to Your Analysis Use language the community understands50.1% (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 languageShould be articulated throughout your policy, procedure, investigation and hearingsEducate the parties and their advisors
113Note 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 pagesKeep records of all contacts including and phone calls with all partiesUse pre-prepared numbered questions as a framework, but be flexible
114Note-Taking: Other Considerations Notes should be free from bias and subjectivityNotes should be complete and detailedDecision may turn on small detailsWhere possible, include verbatim statements on critical issues – use their words, not yoursKeep notes on what is told to the complainant, respondent and witnessesIdentify any delays in the process and reasons for the delaysIf it isn’t written down, it didn’t happen
115Note-taking: Other Considerations Taking notes may slow down the interview in a good way- may help detect deceptionNote-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
116Note-TakingReview your notes before the interview concludes;Clarify anything you are unclear aboutDocument any refusal to answer, evasion or refusal to participateCapture key quotesSummarize your perceptions of credibility, honestyRecord any requests or unusual interaction with intervieweeReview and finalize notes immediately upon completion of interview
117Preparing the Investigation Report The investigation report is the one comprehensive document summarizing the investigation, including:Results of interviews with parties and witnessesResults of interviews with expertsSummary 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 gatheredAssessment of credibility of parties
118The Investigation Report Helpful to have a “skeleton” outline of what report will includeThe report should:Detail the allegations and how they were brought forwardExplain the role of the parties and witnesses, and ant relations between themSummarize information collectedIdentify evidence collected (direct, circumstantial, documentary, expert)Assess weight, relevance and credibility of information gathered
119The Investigation Report Explain unsuccessful attempts to collect information and/or interview witnessesHighlight key factual findings for each allegationMeasure 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 processThe file should contain all policies and procedures currently applicable.
120OTHER ISSUESJurisdictionTimelines and TimelinessConfidentiality
121Jurisdiction For Sexual Misconduct/Title IX Cases There is an expectation that you have SOME jurisdiction over off campus incidentsJurisdictional LimitationsGeographicTemporalWhen is a student a “student?”Application-Admission-Registration-Attendance-Breaks
122TimelinesEnsure 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 possibleso that recollections are as fresh and accurate as possibleto secure necessary remedies as soon as possibleDocument unavoidable delaysNotice any extensions providedWhat about delays caused by the complainant?Delays caused by other processesProvision of partial remedies
123“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 confidentialityBest practice not to furnish the respondent with a copy of the complaint without redaction or summarizing
125Investigating 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.
126Investigating Retaliation Claims Preliminary Elements of a Claim The following elements establish an inference of retaliation:Did the complainant engage in protected activity?Usually straightforwardUnless there is a question of reasonableness of belief or mannerWas 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?
127Investigating 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.
128Investigating Retaliation Claims Is The Explanation Legitimate? Factors to consider:The explanation makes senseThe action was consistent with established policy or practiceNo adverse action was taken against others who engaged in protected activityComplainant was treated the same as other individuals.
129Investigating Retaliation Claims Is There Evidence Of Pretext? Factors to consider:The explanation given is not credibleOther 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.
130Final Advice Focus On Remedies Throughout processInvestigationStop behaviorRemediate impact (often not sanction-based)Prevent re-occurrenceConsider the effect of “educational” sanctions 2nd victim is both Title IX and negligence concernConsider what educational/training needs to be implemented, changed, etc.
132Strategy 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 interviewsWhat 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?