We recently launched a multi-part series where we are providing a refresher on the key players on the Title IX team under the current 2020 regulations. While we wait for the Biden administration to publicly release their proposed regulations, remember that the 2020 regulations are still in effect and will be for some time to come. With that in mind, we want to ensure that everyone is up to speed on the current roles and responsibilities of the members of their team.
In a previous post, we covered the roles and responsibilities of the Title IX Coordinator. Today, we’re focusing our spotlight on the Title IX Investigator. As you know, Title IX Investigators play a crucial role in your institution’s formal grievance process. Investigators are responsible for conducting fair and unbiased investigations and creating thorough investigation reports summarizing all relevant evidence that will help Decision-Makers make final determinations.
Note that the regulations explicitly prohibit Investigators from serving as Decision-Makers, which is something you’ll need to consider if you have a small Title IX team. As always, feel free to reach out to our attorneys if you have any questions about structuring your team and we’ll be happy to help.
Title IX Investigator Training Requirements
The 2020 regulations require that Title IX Investigators receive training on the following topics:
- The definition of sexual harassment;
- The scope of the institution’s educational programs or activities;
- The process of conducting an investigation and grievance process, including hearings, appeals, and informal resolution processes;
- How to avoid conflicts of interest and bias; and
- Issues of relevance.
Note that while most of these topics overlap with the training requirements of other members on the Title IX team, Investigators have the additional requirement of being trained on issues of relevance. Such training should then assist Investigators with asking questions to solicit relevant evidence when interviewing the parties and witnesses and to produce a report that fairly presents the relevant evidence gathered during the course of the investigation.
Additionally, while not required, providing training to your Investigators on general best practices for conducting investigations, covering issues such as interviewing techniques, confidentiality and documentation, can especially help ensure your Investigators are prepared for serving in these roles, and can assist them when conducting investigations on topics beyond Title IX.
The Investigative Process
The regulations require institutions to follow a reasonably prompt timeline for investigations, and Investigators play a key role in keeping the process on track. Thus, it is worth reviewing key steps, requirements, and best practices involving the investigative process.
- Interviewing parties and witnesses: Once the Title IX Coordinator determines to move forward with a formal complaint, Investigators are responsible for gathering evidence and interviewing parties and witnesses. Investigators must act as a neutral party throughout the investigative process and ensure equitable treatment of all parties. Note that all parties must be given an equal opportunity to identify their own witnesses (including fact and expert witnesses) and other inculpatory and exculpatory evidence for Investigators to review.
- Clear communication and timelines: Clear, regular communication with the parties is essential throughout the grievance process. The regulations require that all parties are provided with written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, “with sufficient time” to prepare. While “sufficient” is not defined in the rules, parties should be provided a reasonable—and equal—amount of time for parties to prepare for any meetings that they will have to attend.
- Confidential records: Investigators must not request or examine records that are “made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional” that are in any way connected to a party’s treatment, unless the party provides voluntary, written consent.
- No gag order: While Investigators should maintain the strictest level of confidentiality throughout the investigative process, remember that the regulations clearly state that Complainants and Respondents should not be restricted from discussing the allegations under investigation with others.
- Opportunity to examine and respond to evidence: Each party must be provided with an equal opportunity to inspect and review any evidence that is obtained during an investigation that is directly related to the allegations in the formal complaint. The regulations require that each party and advisor, if any, must be provided with the directly related evidence in an electronic or hard copy. Parties must be given at least 10 days to submit a written response, to be considered by the Investigator as they draft their report.
- Investigative report: After concluding all interviews and evidence gathering, Investigators draft a report that fairly summarizes all relevant evidence. The report must be sent in an electronic or hard copy to each party and advisor at least 10 days before a hearing (if a hearing is required) or determination regarding responsibility (if no hearing is required) so that they have reasonable time to review the report and write a response.
Above all, remember that investigations must be thorough, prompt, and fair. Investigators should be well-versed and well-trained in every aspect of the process, as a successful grievance process depends on the reliability, impartiality, and accuracy of the Investigators’ work.
Our Title IX attorneys are available to help with training your Investigators in best practices for preparing for interviews, conducting interviews, and drafting the investigative report. Please contact us if you have any questions or would like to set up a training session with our Title IX team.
As always, if you have questions about the roles and responsibilities of the Title IX Investigator or anything else Title IX-related, feel free to reach out to any of our Title IX attorneys. We look forward to continuing our refresher series on the Title IX team in upcoming posts.
*Also authored by Jenny Lee, a third-year law student at Loyola University Chicago School of Law, currently a law clerk at Franczek P.C.