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Title IX Investigations: Advanced Issues, Challenges and Opportunities

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Presentation on theme: "Title IX Investigations: Advanced Issues, Challenges and Opportunities"— Presentation transcript:

1 Title IX Investigations: Advanced Issues, Challenges and Opportunities
Mark DiVincenzo, Deputy General Counsel Massachusetts Institute of Technology Leslie Gomez, Partner Pepper Hamilton LLP Anthony Walesby, Associate Vice Provost & Sr. Director, Title IX Coordinator The University of Michigan Student Sexual Misconduct: Addressing Institutional Culture and Compliance National Association of College and University Attorneys February 28 – March 1, 2014 NACUA

2 Title IX Investigation Goals
To seek the truth To maintain a compassionate and sensitive approach to all To be fair, impartial, reliable and thorough To maintain professionalism and consistency in process, procedures and communications To evaluate all relevant information to determine whether there is sufficient evidence by a preponderance of the evidence . . . To impose accountability for conduct that violates our community standards

3 The Choices Who investigates? Scope of investigation:
Student conduct Campus safety/police Attorney Mental health professional Dedicated Title IX investigator EEO/Human Resources External investigator Scope of investigation: Fact-gathering only Threshold Preliminary or advisory Final finding May vary based on role of respondent Student Staff Faculty

4 The Challenges Identifying the appropriate institutional response Understanding confidentiality, privacy and rights of the parties Coordinating with law enforcement Investigation protocols: effective practices, documentation and communications Separating support and advocacy from investigation and adjudication

5 Do we “investigate” in every case? What does it mean to “investigate?”
Identifying the Appropriate Institutional Response: To Investigate or Not? Do we “investigate” in every case? What does it mean to “investigate?” Initial review or assessment What if the complainant does not consent? Does your policy allow the institution to be the complainant? What does it look like when we don’t “investigate?

6 “Investigation” The specific steps in an investigation will vary depending upon: The nature of the allegations The source of the complaint The age of the student(s) The size and administrative structure of the school Other factors In all cases, the inquiry must be: Prompt Thorough Impartial Adequate (DCL) Reliable (DCL) Whether it is reasonable for the school to investigate in response to a third party report will vary depending upon: Source and nature of the information Seriousness of the incident Specificity of the information Objectivity and credibility of the source Whether individuals can be identified Whether individuals want to pursue the matter 2001 Guidance

7 Confidential Resources
T IX C RA Coach Faculty Security Dean Employee Student Conduct Confidential Resources Dean of Students (Student Conduct) Campus Police Initial Assessment or Review: Title IX Coordinator/ Deputy Title IX Coordinator Other Team Members: Human Resources Provost/Faculty Diversity/EEO Initial Assessment Immediate Safety & Well-Being Basic Facts Notify of right to contact law enforcement and seek medical treatment Notify of importance of preservation of evidence Enter into daily crime log Assess for timely warning Identify resources Offer accommodations Provide process options Assign advocate/support person Assess for pattern Ascertain complainant’s wishes Discuss barriers to proceeding Evaluate individual vs. campus safety Implement Support: Advocacy Accommodations Process Advisor Remedies Based Discipline Based Non-Judicial Judicial Individual and Community Remedies Investigation Complainant Respondent Hearing/Sanction Appeal

8 Initial Assessment Assess immediate safety & well-being
Gather basic facts Notify of right to contact law enforcement and seek medical treatment Notify of importance of preservation of evidence Enter into daily crime log Assess for timely warning Identify resources Offer accommodations Provide process options Assess for pattern Ascertain complainant’s wishes Discuss barriers to proceeding Evaluate individual vs. campus safety Identify advocate/support person

9 Authority for “Informal” Response
Once a school has notice of possible sexual harassment it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again These steps are the school's responsibility whether or not the student who was harassed makes a complaint or otherwise asks the school to take action 1997 Guidance Good judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX Doing nothing is always the wrong response Depending on the circumstances, there may be more than one right way to respond 2001 Guidance

10 Authority for “Informal” Response
Grievance procedures may include informal mechanisms for resolving sexual harassment complaints if the parties agree to do so Not appropriate for a complainant to be required to work out the problem directly with the respondent Not without appropriate involvement by the school Complainant must be notified of the right to end the informal process at any time In sexual assault, mediation will not be appropriate even on a voluntary basis 2001 Guidance, p. ;21; DCL, p. 8-9

11 “Authority” for “Informal” Response
Yale: If informal process(es) are available, the option for complainants to bypass an informal process for a formal process at any point, per the complainants’ discretion No complainant will be required to have face-to-face interaction with an alleged perpetrator in any informal resolution or mediation involving a complaint of sexual assault Xavier: To assure that the University will not use mediation and other informal mechanisms to resolve allegations of sexual assault, and to only offer an informal process to resolve other types of sexual harassment complaints on a voluntary basis when appropriate, with notification of the right to end the informal process at any time and begin the formal stage of the complaint process

12 “Authority” for “Informal” Response
SUNY: Revise grievance procedures to include: Investigation of complaints when the complainant does not choose to proceed with an informal or formal resolution or a hearing; An obligation to make reasonable efforts to investigate and address instances of sex discrimination when it knows or should have known about such instances, regardless of complainant cooperation and involvement Clarification that any informal resolution mechanism set forth in the procedures will only be used if the parties voluntarily agree to do so: Complainant should not be required to resolve the problem directly with the respondent; Some instances when the informal resolution mechanism may be inappropriate (e.g., mediation is prohibited in cases of sexual assault, and those involving a student complaining of sexual harassment against an employee in a position of authority over the student); and Complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process.

13 “Informal” Resolution
Remedies-based Individual Community Not based on imposition of discipline or sanction Participation is voluntary Cannot compel cooperation Complainant may end informal resolution at any time In the appropriate case, can be an effective means of eliminating, preventing and addressing harassment Complainant may be able to remain confidential May or may not involve notifying the respondent Mechanisms: May use mediation for cases that do not involve sexual assault Voluntary resolution Directed action by school Can incorporate principles of restorative justice Maintain records for pattern evidence

14 The Confidentiality Conundrum
Schools also should inform and obtain consent from the complainant … before beginning an investigation “If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.” If complainant requests confidentiality, school should inform complainant: Ability to respond may be limited School will take steps to prevent retaliation and take strong responsive action if it occurs DCL, p. 5

15 The Confidentiality Conundrum
The school may weigh the request for confidentiality against: the seriousness of the alleged harassment; the complainant’s age; whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under FERPA” (DCL, p. 5) Important to document information and factors considered Consider use of multi-disciplinary team to evaluate Pursue other steps to limit the effects of the alleged harassment and prevent its recurrence School may delineate other factors: Whether the complainant has requested confidentiality Whether the complainant wants to participate in an investigation or judicial hearing The severity and impact of the conduct The respective ages of the parties Whether the complainant is a minor under the age of 18 Whether the respondent has admitted to the conduct Whether the respondent has a pattern of similar conduct The existence of independent evidence The extent of prior remedial methods taken with the respondent

16 The Multi-disciplinary Approach: Reluctant Complainant - Review Panel
Panel consists of representative stakeholders on campus: Complainant advocacy Respondent rights Dean of Students Student Judicial Affairs Campus Police Title IX Coordinator Legal Counsel serves as an advisor, but is not an official member

17 The Multi-disciplinary Approach: Reluctant Complainant - Review Panel
What would happen if the University moved forward despite the Complainant’s wishes? IMPORTANT elements of Panel: Each panel member reviews all the information available and offers their perspective The second to the last person to provide comment is legal counsel, followed by Title IX Coordinator The Title IX Coordinator makes the decision – it is not by majority rules, loudest in the room wins, etc. Title IX Coordinator is responsible and accountable

18 The Confidentiality Conundrum
It is important for an institution to manage expectations and provide information regarding confidentiality and its limits to campus communities before an incident occurs or a report is made.

19 A Practical Response Ensure policies clearly identify reporting options and support resources both on and off campus Delineate confidential resources vs. non-confidential reporting options in policy and training Ensure all employees are familiar with Title IX reporting expectations Offer clear and easy to follow guidance as to what happens when a report is received Foster a climate that encourages reporting by providing consistency in message, policy, procedure, and outcome

20 Understanding Confidentiality, Privacy and Rights of the Parties
FERPA Implications Redaction of names Access to interviews and reports Confidentiality of investigation/hearing Can you impose limits on FERPA-protected information? What constitutes an educational record? Cannot require non-disclosure Confidentiality agreements are discouraged For employees, consider NLRA/NLRB implications

21 Coordinating with Law Enforcement
Develop a collaborative relationship In advance of the crisis Mutual education re: shared values/goals Leadership and frontline officers & investigators Memorandum of Understanding Communication, communication, communication! State law confidentiality issues

22 Coordinating with Law Enforcement
“Although a school may need to delay temporarily the fact-finding portion of a Title IX investigation while the police are gathering evidence, once notified that the police department has completed its gathering of evidence (not the ultimate outcome of the investigation or the filing of any charges), the school must promptly resume and complete its fact-finding for the Title IX investigation.” (DCL, p. 10) Respect for integrity of law enforcement investigation Defer to law enforcement’s right to notify respondent of charges Preservation of evidence Impose interim protective measures Sharing of Information By agreement By subpoena Cutting Edge Interview memos Joint interviews Forensic evidence gathering

23 Coordinating with Law Enforcement: Memorandum of Understanding
Consider Memorandums of Understanding (“MOU”) between schools and local law enforcement agencies, local prosecutors, medical providers, and victims’ advocates Any agreement or MOU with a local police department must allow the school to meet its Title IX obligation to resolve complaints promptly and equitably (DCL, p. 10) MOU should include clear policies on when a school should refer a matter to local law enforcement (DCL, p. 10) MOU should not prevent a school from: Notifying complainants of their Title IX rights and the school’s grievance procedures, or Taking interim steps to ensure safety and well-being while the law enforcement fact gathering is in progress (DCL, p. 10)

24 Coordinating with Law Enforcement
University should instruct law enforcement employees: To notify complainants of their right to file a Title IX complaint in addition to the filing of a criminal complaint To report incidents of sexual violence to the Title IX Coordinator (may require consent to release the name and identifying information based on state law) Training all law school enforcement unit personnel on the school’s Title IX responsibilities and handling of sexual harassment or violence complaints (DCL, p. 18) Law enforcement should receive copies of the school’s Title IX policies

25 Coordinating with Law Enforcement
Title IX Coordinator should be given access to University law enforcement unit investigation notes and findings as necessary for the Title IX investigation, so long as it does not compromise the criminal investigation Title IX Coordinator should be available to provide assistance to University law enforcement employees regarding how to respond appropriately to reports of sexual violence University should notify a complainant of the right to notify or decline to notify law enforcement, and should not dissuade a complainant from doing so either during or after the university’s internal Title IX investigation

26 Coordination with Law Enforcement
Eastern Michigan University Voluntary Resolution Agreement The University will review its campus police records for a prior school year and, for any complaint of sexual assault that was treated solely as a criminal matter and/or where the Title IX Coordinator was not involved, the University’s Title IX Coordinator will review the matter to determine whether sexual harassment occurred in violation of Title IX and whether the remedies provided were effective. If not, the University will promptly take measures, should the victim or the perpetrator still be enrolled as a student, to ensure the sexual harassment was fully and effectively addressed. Notre Dame College Voluntary Resolution Agreement The College will review its campus police records for previous years “for any complaint of sexual assault/sexual violence that was treated solely as a criminal matter and/or where the Title IX Coordinator was not involved, the College’s Title IX Coordinator will review the matter to determine whether sexual harassment occurred in violation of Title IX and whether the remedies were effective in making the victim whole. If not, the College will promptly take measures, should the victim still be enrolled as a student, to ensure the sexual harassment was fully and effectively addressed.

27 Coordination with Law Enforcement
Xavier University Voluntary Resolution Agreement The University will review its campus police records for previous years for complaints of sexual assault/sexual violence that were treated solely as a criminal or disciplinary matter and/or where the Title IX Coordinator was not involved, the University's Title IX Coordinator will review the matter to determine whether the victim or the alleged perpetrator is still enrolled as a student and, if the incident(s) in question raise possible sexual harassment, take appropriate steps to address the harassment. University of Montana MOA Regarding University of Montana Office of Public Safety’s Response to Sexual Assault Take affirmative steps to clarify, through policies, procedures, and/or training, the respective roles and responsibilities of MPD and OPS pursuant to the MOU between those two agencies. Take affirmative steps to ensure effective communication and coordination between OPS and UM and MPD

28 Investigation Protocols
University should “own” the investigation Parties should not be required to obtain, interview or ensure witnesses’ presence Parties should not be required to write their own statements Parties should have equal access to information that will be used in the process Build in follow up interview Allow for review of investigative report

29 Investigation Protocols: Overview
Consider use of two investigators Develop an investigation plan Maintain a working chronology of the investigation Use an Investigative Checklist to ensure consistency Build a timeline of the incident & the relationship Use forensic interview techniques Documentation: interviews and investigative report Use of physical or forensic evidence Address pattern of evidence/prior sexual history

30 Investigation Protocols: Documentation
Documenting the interview: Preferred method employs two interviewers Take detailed notes of interviews Details are essential to assessing credibility and corroboration Determine method of documentation Handwritten notes Typed Recorded Capture verbatim information “Ring of truth” Ability to corroborate Report writing: Professional Balanced and neutral Content Linguistics Avoid declarative credibility language “Unreliable” vs. insufficient information Use of verbatim quotes Communications: Ensure regular and consistent communications Re: expected time frames and any reasonable delays Create memory markers

31 Investigation Protocols: Evidentiary Issues
Always consider relevance Admission of medical information Must be accompanied by expert guidance If provided voluntarily by the complainant, must be shared with the respondent Admission of mental health records Prior bad acts/pattern evidence May be relevant and probative Use at fact-finding and at sanction Prior sexual history of the complainant Generally barred Limited grounds for admission

32 Separate Support and Advocacy from Investigation and Adjudication
Provide balanced access to support and advocacy Designate individual for support and implementation of interim measures Recommend dedicated survivor advocate through campus or community Identify dedicated resource for respondents Benefits of clearly defined and visible advocacy Helps students to feel tended to and connected to the process Can help set and manage expectations

33 Separate Support and Advocacy from Investigation and Adjudication
Separate support and advocacy role from investigation and adjudication Conflation of roles can: Impact thorough assessment of the facts Create distrust/confusion by complainant Give appearance of bias/lack of impartiality

34 Plan for the [Un]expected
Cross-complaints The rush to the courthouse steps False reports Do you charge? Recantations Require thorough investigation

35 Resources Title IX of the Education Amendments of U.S.C. § 1681 et seq. Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092 (f), 2013 Campus SaVE Act Family Educational Rights and Privacy Act,  20 U.S.C. § 1232g; 34 CFR Part 99 1997 Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties 2001 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties - Title IX 2010 Dear Colleague Letter on Bullying and Hazing 2011 Dear Colleague Letter on Student on Student Sexual Violence 2013 Dear Colleague Letter on Retaliation 2010 Notre Dame College Voluntary Resolution Agreement 2010 Eastern Michigan University Resolution Agreement 2011 University of Notre Dame Resolution Agreement 2012 Yale University Voluntary Resolution Agreement 2012 Xavier University Resolution Agreement 2013 University of Montana Resolution Agreement and 2013 University of Montana Letter 2013 Memorandum of Agreement Between the United States Department of Justice and the University of Montana Regarding the University of Montana Office of Public Safety’s Response to Sexual Assault 2013 SUNY Voluntary Resolution Agreement


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