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

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Presentation on theme: "CAMPUS TITLE IX INVESTIGATION TRAINING presented by Saundra K. Schuster, J.D. Brett A. Sokolow, J.D. Leslee K. Morris, J.D. Belinda Guthrie, M.A. www.ncherm.org."— Presentation transcript:

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

2 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 reserved2

3 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 reserved3

4 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 reserved4

5 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 reserved5

6 Title IX © 2012 ATIXA all rights reserved 6 “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

7 The IX Commandments ThoroughReliableImpartial PromptEffectiveEquitable End the Discrimination Prevent its Recurrence Remedy the effects upon the victim & community © 2012 ATIXA all rights reserved 7 Investigation Process Remedies

8 Investigation Process Overview 8 © 2012 ATIXA all rights reserved

9 The Process  Incident  Notice to Title IX Officer, Strategy Development  Investigation  Informal Resolution, Administrative Resolution or Formal Resolution?  Investigation and Report (and in some cases…)  Hearing  Finding  Sanction  Appeal © 2012 ATIXA all rights reserved 9

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 10

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 11

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 12

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 13

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 30-60 days will vary by case) © 2012 ATIXA all rights reserved 14

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 15

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 16

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 17

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 18

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 19

20 Interviewing 20 © 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 21

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 22

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 23

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, emails)  Let parties know you may need to follow up with them as the investigation progresses  Recommend that the parties and witnesses not discuss the investigation  Discuss non-retaliation  Obtain FERPA releases © 2012 ATIXA all rights reserved 24

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

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 26

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 27 © 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 28

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 29

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 30

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 31

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 32

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 33

34 Investigation Notes and Report 34 © 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 e-mail and phone calls with all parties © 2012 ATIXA all rights reserved 35

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 36

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 37

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 38

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 39

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

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) 41 © 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. 42 © 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 43

44 THANK YOU! Questions? Brett@atixa.org Saundra@atixa.org Leslee.morris@colorado.edu Belinda.guthrie@gmail.com © 2012 ATIXA all rights reserved 44


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