Title IX: Starting the Investigation


July 8th, 2019

Schools are receiving an overwhelming number of sexual misconduct reports, including both student-to-student and staff-to-student sexual harassment, result­ing in an increase in Title IX investigations. Those inves­tigations vary slightly from general misconduct investi­gations because federal law requires school offi­cials to take specific steps during and after a Title IX investiga­tion. Knowing what triggers a Title IX investigation and what steps to take at the outset may protect your school from legal exposure.

Investigation Triggers

Both formal and informal complaints of sexual misconduct trigger a Title IX investigation, regardless of where the alleged misconduct occurred. School offi­cials must investigate allegations of off-campus sexual harassment (e.g., sending inappropriate photos) and criminal sexual conduct to ensure that the alleged mis­conduct did not occur at school or impact the school en­vironment, and to protect the alleged victim from further harassment or retaliation at school.

Students may always be disciplined for sexual misconduct, including harassment, that occurred at school. They also may be subject to discipline for off-campus sexual harassment when the underlying mis­conduct involves school-issued devices, violates an ath­letic or extracurricular code of conduct, or substantially disrupts the school environment. Additionally, school officials may discipline a student who “commits” crimi­nal sexual conduct off-campus against another student enrolled in the same school district. Finally, school offi­cials must expel a student who “is convicted of, or is adjudicated for” criminal sexual conduct against another student enrolled in the same school district, re­gardless of location, subject to consideration of Revised School Code Section 1310d’s seven mitigating factors.

A complaint is not required for a school to begin a Title IX investigation. The U.S. Department of Education’s Office for Civil Rights (OCR) requires a school to investigate when a school knows or reasona­bly should have known of an incident of sexual miscon­duct. Anonymous reports from OK-2-SAY, information from parents or students, or even rumors about sexual misconduct can trigger a school’s obligation to investigate.

Prompt Investigation

OCR requires that a school “follow a reasonably prompt time frame for major stages of the [Title IX] complaint process.” The investigation must be con­ducted in a “timely manner designed to provide all par­ties with resolution.” Although OCR no longer defines a “prompt time frame,” we recommend that schools begin a Title IX investigation without delay and comply with any time frame in their board policy.

Interim Measures & Retaliation

While the investigation is ongoing, Title IX requires school officials to consider whether “interim measures” are necessary. Interim measures are individualized steps or actions designed to prevent further harass­ment and protect the alleged victim, complainant, respondent, and any witnesses from retaliation. School officials must de­vise and implement interim measures as necessary and continuously monitor the measures’ effectiveness. In­terim measures may include offering academic sup­ports; changing lockers, class schedules, or lunch schedules; and issuing no-contact orders. If the measures are ineffective and additional harassment or retaliation is reported, school officials must investigate these claims, consider alternative interim measures, and determine whether discipline is appropriate. Retal­iation is prohibited regardless of the investigation’s outcome.

Law Enforcement

Depending on the nature of the allegation, school officials also may need to promptly contact law enforce­ment or Child Protective Services. Law enforcement may request that school officials halt their investigation until a parallel law enforcement investigation con­cludes. Title IX case law and federal guidance, however, prohibit school officials from postponing their investi­gation pending the outcome of law enforcement pro­ceedings. Unreasonably delaying an investigation, even at law enforcement’s request, may expose a school to legal liability.

School officials may give some deference to law enforcement agencies in certain circumstances. For ex­ample, a brief delay (i.e., no longer than two weeks) to allow law enforcement officials to interview key wit­nesses first is generally defensible. Relatedly, school of­ficials may request to observe law enforcement inter­views as part of their own school-based investigation.

A collaborative relationship with local law enforcement agencies can aid Title IX investigations. Thrun Law Firm has facilitated meetings and trainings with school officials and local law enforcement officials to address questions about parallel investigations. If you would like to schedule a meeting like this in your area, please contact Cristina Patzelt at 517-374-8776.