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Tips for Title IX Investigators
One of the most significant changes in the 2020 Title IX regulations is the replacement of the “single investigator” with four key roles in the Title IX grievance process: the Title IX Coordinator, the Investigator, the Decision-Maker, and the Appeals Officer. Most questions we receive are about serving as the Investigator.
The roles of Investigator, Decision-Maker, and Appeals Officer must be held by different people in any given Title IX investigation. The Investigator is not required to be a school employee. Instead, the Investigator may be an employee of another local district or intermediate school district, an attorney, a private investigator, or another properly trained outside party. School officials should confirm that any person serving in a key role is appropriately trained as required by the new regulations.
The Title IX Coordinator may serve as the Investigator. If a school assigns the Title IX Coordinator to investigate a specific formal complaint, it must ensure that the Title IX Coordinator does not have a conflict of interest. Not only may a conflict of interest deprive a party of due process and undermine the legitimacy of an investigation, it also can serve as the basis for an appeal of the final decision under the new regulations. For example, if a Title IX Coordinator signed the written formal complaint that forms the basis for the investigation, the Title IX Coordinator may have a conflict of interest and should not be assigned to investigate the complaint.
The Investigator should be selected on a case-by-case basis after receipt of a formal complaint to ensure that the Investigator will not have a conflict of interest or bias related to the particular complaint.
Conducting the Investigation
The Investigator should typically interview the Complainant (the alleged victim) first, then use the information from that interview to determine who else should be interviewed. Most often, the Respondent (the individual alleged to have engaged in prohibited conduct) is the last person interviewed during an investigation. Keep in mind, however, that an investigation is an evolving process and persons subject to interview may change as more information is gathered.
Investigators should secure all documentary evidence, such as police reports, surveillance footage, and any other potentially relevant documentation. Depending on the allegations, a site visit may be necessary.
Remember, all information that is gathered during the course of the investigation – regardless of its relevance – must be shared with both the Complainant and the Respondent at least 10 days before the Investigation Report is finalized. And, the Investigator does not make a determination of responsibility. That means the Investigator must gather sufficient evidence so that another person can make a final determination.
Drafting the Investigation Report
The Investigation Report is the only form of communication between the Decision-Maker and the Investigator. The Investigator should create a thorough, concise document that contains all information required by the regulations. (Pro Tip: the materials with Thrun’s Comprehensive Title IX Training list the regulations’ requirements for the Investigation Report.) Most often, however, including only the required information does not suffice for the Decision-Maker to make a determination of responsibility.
Investigators should err on the side of providing as much information and detail as possible, including the reasons why the Investigator established certain facts. Investigators should avoid providing a report with only “he said, she said” information, and the report should not be simply a transcript of each interview.
Instead, before the Investigator drafts the report, the Investigator should review the allegations and make single-sentence factual findings based on the board policy’s standard of evidence. For example: A preponderance of the evidence establishes that the Complainant entered the restroom at 9:02 a.m. The facts should build on each other, creating an easy-to-follow narrative allowing the Decision-Maker to determine whether the policy was violated. The Investigator should still make credibility determinations and clearly articulate why he or she reached certain factual determinations.
Serving as an Investigator requires thoroughness and attention to detail. Thrun’s Title IX Practice Group has assisted multiple schools with the Title IX Investigation process, including serving as the Investigator, counseling Investigators as they navigate the process, and reviewing Investigation Reports to ensure that they contain sufficient information upon which the Decision-Maker can base the determination of responsibility. If you would like assistance with this process, please contact a Thrun Title IX attorney.
Thrun Law Firm is also hosting a Title IX Comprehensive Training on October 27, 2021.