The Atixa Title Ix Investigator Training

SUPPLEMENTAL RESOURCE MATERIALS:

THE ATIXA TITLE IX INVESTIGATOR TRAINING

Materials Provided By Bernice Sandler, Ed.D.

Bernice R. Sandler, Senior Scholar

Women’s Research and Education Institute

1350 Connecticut Avenue, NW Suite 850

Washington, DC 20036

Ph: 202 833 3331 FX 202 785 5605

These materials are intended to provide assistance for achieving best practices for civil

rights investigations, but are not given and should not be taken as legal advice.

Before acting on any of the ideas, opinions or suggestions in this publication, participants should check first with a licensed attorney in their own jurisdiction.

A PARTIAL LIST OF THE RESPONSIBILITIES AND KNOWLEDGE /SKILL SETS OF

TITLE IX COORDINATORS

Title IX of the Education Amendments requires that educational institutions receiving federal funds must designate and/or adequately train at least one employee to coordinate the recipient’s Title IX responsibilities. These responsibilities of the Title IX Coordinator include the adoption and publishing of the required grievance procedures to address sex discrimination claims, the investigation of complaints, and, among other things, to insure that the institution notifies all students and employees of the name, address, and telephone number of the designated coordinator.

The regulation also requires each recipient to publish a statement or notice that it does not discriminate on the basis on sex in admission to or employment in its education programs or activities, and that inquiries to recipients concerning the application of Title IX and its implementing regulations may be referred to the Title IX Coordinator or to the Office for Civil Rights at the Department of Education.

Note: Title IX applies to all employees as well as to all students. Thus the list below is not limited to students only.

What are the skills and knowledge sets that a Title IX Coordinator needs to have and know about?

Knowledge of applicable Federal and State laws and regulations:

Federal Laws and Regulations

Title IX of the Education Amendments of 1972
Title VII of the Civil Rights Act
TITLE VI of the Civil Rights Act
Equal Pay Act
The Clery Act (The Jeanne Clery Disclosure of Campus Security Policy and Campus
Crime Statistics Act)
ADA (Americans with Disabilities Act)
FERPA (Family Educational Rights and Privacy Act)
Hate Crimes Law

State Laws and Regulations

Anti-discrimination laws covering employment, education, and state contractors

(Some states have “little Title IX” laws)

Laws covering

Sexual assault
Sexual abuse
Domestic violence
Other applicable criminal laws
Bullying
Physical assault
Intentional infliction of harm and other torts

Note: some incidents include bullying and sexual harassment, and therefore must be treated as a Title IX violation, and, if appropriate, also as a violation of state or local anti-bullying laws or policies.

Knowledge/Skill Sets

Relevant institutional policies and issues involving areas such as:

Employment, tenure and grievance policies
Sexual harassment
Sexual assault
Hazing
Alcohol
Drugs
Bullying
Stalking
Computers, including cyber harassment and cyber stalking
Student discipline
Fraternities and Sororities
Athletics
Amorous and consensual relationships between staff and students
Relationship violence
Conducting an investigation
Confidentiality
Retaliation
Penalties
Free speech issues
Contact with media
Multiple discrimination/harassment
Gender issues
Gay, Lesbian, Bisexual and Trans-gendered persons
Pregnancy issues
Marital and parental issues
Formal and informal dispute resolution
Overlap and differences between bullying and harassment

Responsibilities (some of these responsibilities may be shared or designated to others although the Title IX Coordinator retains ultimate responsibility)

Development and periodic re-evaluation of discrimination and harassment/sexual assault policies.

Development of written time-lines for handing all areas of the institutional response, and handling of the complaint process including investigations.

Responding to all complaints, both formal and informal and including investigations.

Dealing with anonymous complaints, third party complaints, and reports by persons who do not want the institution to do anything.

Informing those persons who need to be informed when complaints are filed and other issues arise.

Notification to involved parties when the complaint process is concluded.

Training of all personnel concerning administrators, faculty, staff, and students plus record-keeping of training (content, who attended, etc.). Training should include how to intervene when one observes discrimination and harassment, and how to respond to someone’s report of discrimination and harassment.

Development and implementation of an ongoing comprehensive program to prevent discrimination and harassment throughout the entire institutional community.

Relationships with other personnel, such as college attorney, dean of students, campus police, health service, etc.

Responsible for periodic written communications to college community.

Preparing an annual report, with recommendations.

PLANNING FOR THE INVESTIGATION*

Good investigations do not happen by chance but involve careful planning. Below is a partial list of actions that must be addressed in order to achieve an effective investigation. (Some items appear more than once so that each section, standing by itself, is comprehensive)

AT THE BEGINNING

Set up a new confidential file for the case if this has not already been done.

Add the name of the complainant and the respondent to the master file list. A master file is essential for tracking all complaints over time. The file will also identify a person who has harassed previously and who, in some instances, might be treated differently from a first-time offender.

Include in the confidential file copies of all relevant current policies including those that might also cover sexual harassment (such as a conduct code) as well as the sexual harassment policy itself. (Note: sexual harassment policies also cover sexual assault.) It is important to include these policies in case of legal action which may take years to adjudicate and during which time the stated policy may have changed.

Develop a list of those who have access to this file such as specific administrators and support staff who may be handling the file. Inform each person, including support staff, about the confidentiality requirements. They should not discuss the case with anyone and they should not keep the file on their desk when it is not in use. This could be incorporated into a letter which informs these persons about the complaint and confidentiality issues.

Inform the institution’s attorney about the allegation and the investigation.

Identify other parties who need to know about the complaint and the investigation, such as an employee’s supervisor, the Dean of Students, resident assistants of the residence hall where either of the students involved may reside.

*The issues described were mostly drawn from my work as an expert witness and from “Student-To-Student Sexual Harassment, K-12: Strategies And Solutions For Educators To Use In The Classroom, School, and Community,” by Bernice R. Sandler and Harriett M. Stonehill, Rowman & Littlefield Education, Lanham, MD, 2005.

Remind them about the following:

Confidentiality: Only those with a need-to-know should be informed.

Retaliation: They should know how to respond and whom to contact immediately if they observe or learn of retaliation or of new incidents of sexual harassment.

Identify someone to notify the respondent about the complaint if not already done, including giving the respondent a copy of the complaint, and asking him or her to avoid any unnecessary contact with the complainant.

Ensure that the complainant is informed about the policy prohibitingretaliation, given examples, and asked to report it immediately should it occur. He or she should also be given the name and phone number of two persons to whom it should be reported.

Ensure that the respondent is informed about the prohibition of retaliation, given examples, and asked to report it immediately should it occur. He or she should also be given the name, phone number, and email of two persons to whom it should be reported.

Depending on the nature of the complaint and the comfort-level of the student who complained, there may need to be a temporary or permanent reassignment of seating, workspace, project teams, classes, housing arrangements or other reassignment to reduce contact between both students. Unless there is a strong reason not to do so (such as the complainant wants to be reassigned), the accused should be the one to be reassigned.

Set up a time-line, including those items which have timeframes for completion as set by the institution’s policy on sexual harassment or elsewhere, such as the following:

When will interview be conducted and where?
When will the investigation process be completed?
When will a decision be made as to what the investigation found?
When will actions, including disciplinary procedures, be taken, if an investigation concludes that harassment has occurred?
Which parties and other persons with a need to know will be notified and whether by phone, in person or in writing?
Who will write a final letter of resolution to both parties, described at the end of this paper?

Allocate responsibilities. Often more than one person is involved in part of the investigative process, such as institution counsel and the person(s) doing the investigation and other administrative personnel.

Who is the lead person for the specific investigation?
Who will set up appointments?
Who will interview and who will take notes at each interview?
Who will arrange for interview rooms?
Who will maintain the records?
Who will inform those who need to be informed both before and after the investigation?
Who will communicate with counsel and top administrators when needed?
Who will monitor the time-line to see if it is on-time or to make adjustments?
Who will talk about confidentiality to support person(s) who will be involved with the confidential files?

Ensure that everyone involved in the process has no bias or conflict of interest (such as a personal or professional relationship with any of the students involved or their families).

Ensure everyone understands what must be kept confidential.

Determine who will communicate with the press if necessary. It should not be anyone directly involved with the investigation.

Ensure that everyone involved in the process knows which staff memberwill talk to the press about what is happening.

Identify witnesses that need to be interviewed. Witnesses should be interviewed separately.

Identify which witnesses and what questions will help obtain the information needed.

Witnesses can include students, faculty members, dormitory resident assistants, other staff, volunteers, etc. Character witnesses, however, are not appropriate for sexual harassment investigations. Sometimes there are no witnesses.

Determine if your policy allows the accused, the accuser and/or other witnesses to bring someone with them (an “advisor”) to the interview, such as a friend, family member or advocate. (Some schools appoint a faculty member as an official advocate for students who are accused and those who accuse them. Some schools also allow an attorney to attend.)

Ensure that all persons being interviewed are informed in writing of this option if it is allowed by your policy, and that while the accompanying person is allowed to talk to the witness during the interview, they cannot intervene in the process, and that if they do they will be asked to leave. The advisor should not be a witness.

Identify documents that need to be obtained.

Identify issues that the investigation can help decide.

SOME QUESTIONS TO ASK IN INTERVIEWS

Prepare a list of general questions for each interview.

Many questions or a sequence of questions are likely to be repeated for some or all of the witnesses. Such questions should include information about:

Names of the respondent and the complainant
Relationship of the complainant to respondent
Relationship of witness to the complainant
Relationship of witness to the respondent
Details of the alleged misconduct, including date and time, place, circumstances, and witnesses
Effect of the alleged harassment on the complainant
Response to the incident by the complainant before and after filing the complaint
Reaction of the respondent to the complaint

Here are some comments and questions appropriate for almost all interviews:

Thank the person for coming, at the beginning and end of the interview.
Explain that you will be taking notes (or someone else will) or that you are recording the interview so that you will be sure to get all the information down accurately.
Explain the process of investigation in a supportive manner to seek the person’s cooperation.
Ask the person if there are any questions he or she would like to ask about the procedure before questioning begins.
Reassure the person that all information will be kept confidential to the extent possible and that no retaliation will be permitted.
Be sympathetic in a neutral manner such as “This is hard to talk about,” “I know this is difficult for you.”
Do not be afraid to be silent after you have asked a question or if the person is upset. You can give them some reassurance (“I’m sorry this is hard for you”) and then wait silently for them to be ready to talk again.
Give all parties the opportunity to ask questions. Record the questions asked and try to answer in ways that communicate the fact that the institution takes sexual harassment very seriously.
Before the meeting is complete, be sure to review the next steps in the process and any follow-up that may be necessary.
If the person brought an advisor to the meeting, you must explain that the advisor is only there to observe, that no questions may be directed to or from the advisor and that the person should speak directly to you.

Ask complainant(s) and respondent(s) involved how they would like to see this resolved, if possible, such as “What do you want to happen next?” This can be helpful in working out the actual resolution as well as providing an opportunity to explain what is possible or not possible under the policy.

Those being interviewed should also be asked if there are any documents that might be helpful, such as journals, diaries or other written descriptions, calendar entries, or notes.

Ask each of the students involvedas well as witnesses if there is anyone they would suggest to be interviewed because that person might of knowledge of the incident(s) or other relevant knowledge.

Persons with information about the complaint include:

Those who observed or might have observed the incidents(s) or have knowledge of it
Those who were told about it by the complainant
Those who were told about it by the respondent
Those who observed the complainant’s reactions or changes in behavior by either party.

Interviewing the complainant:

Recognize that it may be difficult for the complainant to talk about what happened.
Use open-ended non-leading nonjudgmental questions, such as “What happened?” Tell me more,” rather than “Why were you wearing such skimpy clothing?
Do not ask about prior or current sexual conduct or activities of the complainant (except in very limited circumstances. E.g.: where necessary to establish communication patterns for purposes of determining consent).
After asking about the incident(s) ask how the complainantfelt about the incident(s), both when they happened and afterwards.
Ask if there are any documents such as journals, calendar entries, or notes, or if anyone they know has information about the complaint, including:
Anyone who observed or might have observed the incidents or who may have knowledge of them.
Anyone whom the complainant told about the incident.
Anyone who observed the complainant’s reactions or changes in behavior.
Ask if there is anything else the complainant would like to add.
Reassure again that you will maintain privacy to the extentpossible and that retaliation will not be permitted.
Give some examples of retaliation and ask the student to report it to you or the other persons whose name and phone number you provide.
Ask how the complainant would like the matter resolved but do not promise any specific results (see earlier comments).
Ask if the complainant has any additional comments or questions.

Inform the student how long the investigation is likely to take, without committing yourself to a rigid timeline.
Inform that he or she will be notified about the decision.
Thank the complainantagain for meeting with you.

Interviewing the respondent:

Assure that he or she will have an opportunity to talk about what happened.
Be aware that accusations of wrongdoing, whether accurate or not, may lead to anxiety and to defensiveness.
Use open-ended, nonjudgmental questions, such as “What happened?” “Tell me more,” or “Why did you do that?” rather than “Why would you do such a stupid thing?”
Give the respondentthe opportunity to comment on the accusations.
If the respondent denies the allegations, ask why he or she thinks the complaint was filed.

After questions have been asked about the incidents, ask if there are any documents such as journals, calendar entries, or notes, or if there is anyone who has information about the complaint, including:

Those who observed or might have observed the incidents or have knowledge of them
Those who were told about it by the complainant.
Those who observed the complainant’s reactions or changes in behavior by either.
Ask if there is anything else the person would like to add.
Reassure the respondentyou will maintain confidentiality to the extent possible and that retaliation against him or her or against the complainant will not be permitted.
Give some examples of retaliation and ask him or her to report it to you or another person whose name and phone number you provide.
Ask if the respondent has any additional questions.
Inform the respondent about how long the investigation is likely to take without committing yourself to a rigid time schedule.
Inform the respondent that he or she will be notified about the decision.
Thank the respondent again fro meeting with you .

WHAT HAPPENS AFTER THE INTERVIEWS