New Title IX Regs – Five Weeks to Implementation: Investigations

In our previous alert, we discussed an institution’s obligations in responding to a formal complaint of sexual harassment, including the requirement to investigate the complaint. In this alert, we examine the investigation requirement more closely.

Investigations – What you need to know

An institution must investigate formal complaints submitted by (1) an alleged victim of sexual harassment who is participating or attempting to participate in an educational program or activity (the “complainant”) or (2) by the Title IX Coordinator, who may determine on behalf of the institution that an investigation is necessary.

The new regulations establish procedural due process protections during the investigation aimed at ensuring a fair and reliable factual determination as to whether the alleged perpetrator (the “respondent”) is responsible for sexual harassment. You will find that your institution is likely complying with many of these requirements already. The regulations make clear that an institution must appoint an unbiased investigator and investigate formal complaints in a manner that:

• keeps the burden of proof and burden of gathering evidence on the institution;
• ensures that the institution does not access or use the complainant’s or respondent’s medical, psychological, and similar treatment records without the party’s voluntary, written consent;
• provides the parties equal opportunity to present fact and expert witnesses and other inculpatory and exculpatory evidence;
• presumes the respondent is not responsible during the investigation;
• does not restrict the parties from discussing the allegations or gathering evidence, but can remind parties about prohibitions on retaliation;
• gives the parties equal opportunity to select an advisor of the party’s choice (who may be, but does not need to be, an attorney), who may be present during all investigatory meetings;
• requires advanced written notice when a party’s participation is invited or expected for an interview, meeting, or hearing;
• provides both parties equal opportunity to review and respond to the evidence directly related to sexual harassment allegations that are gathered during the investigation;
• considers the parties’ written response to evidence before creating an investigative report that fairly summarizes relevant evidence; and
• sends all parties the investigative report before the institution reaches a determination regarding responsibility or conducts a live hearing.

Notably, there is no express restriction on using trauma-informed techniques, practices, or approaches during an investigation. Your institution may continue to find this a helpful tool during the investigation process.

An investigator may consolidate formal complaints involving allegations of sexual harassment that arise out of the same facts or circumstances. An institution may also remove a respondent from an education program or activity on an emergency basis pending the outcome of an investigation, if the institution undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. Similarly, an institution may place a non-student employee respondent on administrative leave during the pendency of an investigation.
Also keep in mind that an investigator may not be the decision-maker with respect to responsibility findings and that any credibility findings in an investigative report should not tread into responsibility determinations.

After the investigation report is completed, postsecondary institutions must (and elementary and secondary institutions may) hold a live hearing to determine whether the respondent is responsible for sexual harassment and whether to impose sanctions. Institutions may also provide avenues for informal resolution, such as mediation, prior to a final determination. The live-hearing requirements and informal resolution options will be discussed in a subsequent alert.

Investigations – What you need to do

• Adopt procedures to select investigators who are free from actual or perceived conflicts of interest or bias in conducting investigations and are able to communicate effectively about difficult topics both verbally and in writing;
• Consider using an outside professional, such as counsel or a consulting firm, to perform Title IX investigations;
• Ensure that investigators receive required training on institutional policies, the definition of sexual harassment, how to conduct an investigation, how to serve impartially, how to address issues of relevance in creating an investigative report, and how to prepare an investigative report that fairly summarizes relevant evidence;
• Adopt reasonably prompt time frames for investigations, allowing for limited extensions of time frames for good cause; and
• Consider non-disclosure agreements for parties and their advisors for evidence that is shared as part of the investigation process.

This is the fourth in a series of alerts regarding the new Title IX regulations. We will address other big picture changes, and their practical effects, in the coming weeks as we get closer to the implementation deadline.