hi my name is aaron lacey and i'm the
chair of the higher education practice
at thompson coburn llp and you are
listening to
title ix investigations and informal
resolutions which is part of the
thompson coburn
title ix training series thompson coburn
for those of you who may not know
is a law firm it's a big one we have
offices around the country
and we have a higher education practice
so these are lawyers
uh in our firm who specialize in working
with institutions of higher education
on a wide range of matters including
those involving
discrimination on the basis of protected
classes so discrimination on the basis
of sex
or race or disability or something along
those lines
we are really pleased to be bringing you
this training series
i'll be brief some of you may have
already listened to a couple of our
sessions before now so
i'll try to get through this in a
concise way but the purpose of this
training series
is to offer professionals at
institutions of higher education who may
now be part of a new title ix
process at their institution an
opportunity to get some foundational
concepts right so
this new rule this new title ix rule
becomes effective august 14
2020 and among other things it's going
to require
colleges and universities to put into
place a fairly
robust and in some cases quite technical
process for managing
formal complaints of title ix sexual
harassment
and that means you've got adjudicators
and advisors
and investigators and all types of
different persons who are
going to be pulled into that process and
of course they're going to need
a certain amount of information and one
of the things the new rule requires
is that all those individuals be trained
and that institutions of higher
education
make the training that they use
available so we wanted to make this
training series uh
available to you all to use of course
we're very happy for schools
uh to use it widely it is free you can
put it on your website that's why we
created it
we are in different places as you'll see
today
this is being recorded in july 2020 so
in the midst of the
covet 19 pandemic and we know in this
time period it's extremely difficult to
get folks together and to get training
accomplished so that's one of the
reasons we wanted to put this training
together for you so that you would have
something easy
and accessible that you could use so
please feel free to use it at your
discretion
um if in addition to the foundational
training you would like us to work on
some custom training for you of course
we would be happy to do that as well the
training series is comprised of six
modules
uh today we're going through module
three so you're almost halfway through
the series you will be when we get to
the end of this
uh and at the beginning of each training
module
you'll see this same graphic here on
your screen and as always the box that's
highlighted orange tells you
where you are this is the syllabus for
today's
session right so this is what we'll be
walking through today
i will start briefly with the formal
complaint framework which is a sort of a
recap we'll do at the beginning of every
every session and then after that we're
going to start to get into the
nitty-gritty as they say
uh of investigations the folks are going
to take you through that process i'm
pleased to say
our two colleagues of mine friends and
colleagues i should say susan lawrence
one of them a partner
in our hr employment law practice who
has many years of experience
managing investigations of
discrimination
in all types of settings including
institutions of higher education and
susan's going to bring her wealth of
knowledge
uh and information to us and really we
we are grateful
bring a lot of the experience that comes
and you only gain really out of going
through
investigations scott goldschmidt who
you've seen if you've already watched
some of these
uh and you'll see some more is also part
of our higher education practice scott
uh was formerly the deputy general
counsel at catholic university
in washington dc was there for about a
decade and during his tenure spent a lot
of time
thinking about new title ix policies and
working with faculty and staff
and others on title ix and other related
matters all those types of things
that general counsels do um so i wanted
to start today i mentioned here the
first stop on the syllabus is
the formal complaint framework and
really the idea here is the beginning of
every session
to sort of bring you back in and give
you a little bit of a recap so you
remember what we're talking about so the
title ix statute and
on the off chance you didn't watch the
first couple of training modules um
is the uh statute created by congress in
1972 that
um a specific institutions of higher
education or i should say
institutions of education also applies
to elementary and secondary schools but
with regard to colleges and universities
prohibits the discrimination on the
basis of sex on campus
right and you'll see here and we wanted
to remind folks you know for a very long
time when we thought about title ix
many of us tended to think about equity
in athletics but it is much broader than
that
right it prohibits discrimination on the
basis of sex
in all programs and activities at an
institution
importantly it also covers both students
and employees so it's not just about
athletics it's not just about students
it's pretty broad and it prohibits
again discrimination on the basis of sex
throughout the institution
um there is a title ix regulation so the
statute was created by congress
and congress said hey we have this basic
important concept and now
u.s department of education office of
civil rights we want you to go create a
regulation that's more robust
has a lot more detail really helps
institutions understand what they're
uh supposed to do and what they're not
supposed to do so way back in 1975 not
not long after the statute was created
the u.s department of education
created its first big title ix
regulation
and it is robust and it uh goes on at
length and talks about all the different
things that schools have to have
among those sort of the core
requirements a non-discrimination
statement
appointing a title ix coordinator as
you'll see on your screen
grievance procedures so you've got to
have a process for managing complaints
of discrimination on the basis of sex
and you have to take action to remediate
or
address and prevent discrimination on
the basis of sex
where's the new rule fit in so uh
a couple of years ago this
administration said you know we've had a
lot of guidance some of that they agreed
with some of that they did not agree
with
and we talk about that in the first
training module in more detail but this
administration said
what we have not had really since 1975
is a new
regulation right we've had all this
guidance and back and forth on
sort of at the sub-regulatory level
pamphlets and things along those line
line dear colleague letters saying this
is what we the current administration
think
but we haven't had an actual regulation
so this administration said we're going
to create one
it's been controversial it uh when they
put out the proposed comment there were
the proposed rule there were over 120
000 people who commented
uh and then earlier this year in 2020
they
put out the final rule in its unofficial
format it was
over 2000 pages so it was big and
complicated and this administration had
a lot
to say um if you click on this
uh square the same place where these
videos are housed hopefully you
don't without too much trouble can find
copies of the slides pdfs of the slides
themselves
and these are active links throughout
the presentation and one of the things
you can do here for example is click
on this little box and it'll take you to
the federal register if you want to
check out the new rule and all that
commentary that went along with it
i mentioned earlier institutions have
until august 14th
2020 to absorb and implement this new
rule which if you feel like that's a
really short time frame you're not alone
i can assure you of that so the the last
slide here and
and this graphic is in every
presentation and and the last thing i
want to sort of emphasize before handing
it off
uh to susan and scott is just to help
you
understand and remind you that the focus
of this new rule
really largely is on formal complaints
of title ix sexual harassment so i
mentioned at the outset the title ix
statute prohibits discrimination at
institutions of higher education
and all educations and pro and all
programs and activities
and when we talk about again
discrimination on the basis of sex we
mean
anything outside of uh sexual harassment
that could include uh
in promotions or recruiting or
employment criteria or housing or
all of those different kinds of facets
of your institution so that's the big
box that's the title ix statute you
can't prohibit
you can't discriminate on the basis of
sex um and then
within that right and the new rule
addresses this a little bit we have this
more specific concept of
title ix sexual harassment right so you
have discrimination on the basis of sex
which is
sort of the biggest of the umbrellas and
then within that you get to title ix
sexual harassment and that's a specific
thing
and there's a specific definition in the
new rule of sexual harassment as it's
conceived in the context of title ix and
we talk about that at length again
in the first training session or module
that's part of this series
but finally and this is the point i want
to emphasize right
the new rule is really focused on what
institutions are supposed to do
when they get a formal complaint of
title ix sexual harassment so that's
when
either a complainant or a title ix
coordinator actually submits a
a written complaint alleging sexual
harassment and requests an investigation
and
most of the rule is really focused on
what you should do as an institution
if you get that formal complaint and
most of you who are watching this video
we expect
uh are going to be involved in that
formal complaint process right if you're
an adjudicator an advisor an
investigator
that's really when your role um comes
into play
so with all of that having been said
just keep in mind what we're talking
about today
are best practices requirements
foundational concepts
if you are involved in an investigation
right
that uh occurs subsequent to receiving a
formal complaint
of title ix sexual harassment um there
is a definition of formal complaint it's
in our prior presentations and it's in
this one as well i just went over it but
if you want to
sort of break it down you can come back
and look at this slide
and finally just to highlight the extent
to which and this graphics in all our
presentations too
the extent to which the new rule is
really focused on this formal complaint
framework
all of these different elements that you
see on the screen right now
these are all the things that the new
rule says in 106.45 if you look at the
citation at the bottom
these are all the things a new rule says
has to have to be included in your
policies and your processes
for dealing with formal complaints of
title ix sexual harassment and you can
sort of see from the graphic here
um you have all these different
components the ones in orange
that are highlighted those are the ones
that we'll be talking about today notice
of allegations
investigation and formal resolutions and
we're addressing all these other
components in the
other modules that are part of this
series so
uh with all of that having been said i
will uh turn it over
to the very capable uh susan lawrence
and mr
scott goldschmidt take it away so here
we're going to introduce
some key concepts for the presentation
uh we'll just kind of briefly
outline them and then throughout the the
rest of the presentation we'll kind of
go into more detail of what we want to
explain here about these uh concepts of
depth um
so the first uh hopefully uh if you've
seen the other presentations this is a
theme throughout
the department is really uh concerned uh
rightly so
treating complainants and respondents
equitably so that is
a feature of um throughout the process
and certainly
for investigators um informal
resolutions that is important so to keep
in mind too
uh the second one is the requirement to
objectively
evaluate all relevant evidence we're
going to go into what
uh we consider relevant evidence and
explanation of that
uh and an explanation of both
inculpatory and
exculpatory evidence what they mean a
little bit later
but it's also important to note that you
need to provide the credibility
determinations
are not based on a person's status as a
complainant
respondent or witness so the
department's clear
that just because someone's a
complainant doesn't mean that you
should inherently believe or not believe
them same thing with a respondent
third you need to ensure that your
investigators don't have a conflict of
interest
or bias for or against complainants of
respondents
so this is a something that that would
be a a
general test um a reasonable person you
want to make sure that
these individuals kind of are able to
uh take information and and equitably uh
share it with everyone else
next slide please uh third um
understanding the presumption
that the respondents not responsible for
the alleged conduct
uh so here uh it's important to note
that
until a determination is made the
respondent is not
not considered responsible for conduct
it's just an allegation of conduct
next to understand the standard of
evidence so here we have
either the preponderance of the evidence
or the clear and convincing standard
and schools will pick either one or the
other and we've detailed
the choice there in previous slides but
we'll go over
the definition of that and last
make sure to not require allow rely on
or use
questions or evidence that constitute or
seek disclosure of
information protected under a legally
recognized privilege
and we'll explain what that means
illegally recognize privilege
and what happens if a person waves
um so susan i want to turn it off to
turn over to you um
for the first question i just want to
get your sense we talked about
objectively evaluating
evidence what does that mean that's a
great question scott and one that
judges who do this all day still
struggle with from time to time because
information might not be obviously
relevant
and appropriate to rely upon at first
glance
so what that means in sort of the
technical sense is that there should be
impartial consideration of available
evidence meaning that
one should look at that evidence through
the lens of someone who doesn't have
any partiality or bias and
any sort of prejudgment of that
information it also means that it should
stick to evidence relevant
to the facts at issue and not
information that doesn't really have any
place
in the analysis there shouldn't be any
deference given to the recommendation
of of that investigator it should be
looked at through the lens of an
unbiased
prospect and there should be just an
overall appreciation
for the fact that this is information um
that uh may be helpful or harmful
and that information should be given the
same amount of weight regardless of
whether the information is helpful and
harmful or harmful
hey susan this is aaron you know i
when i think about i look at these
slides and if i'm one of the folks
watching this i may think to myself well
you know it's easy to say be objective
right that's the
this is what we're telling you make sure
you be objective but that's
in practice such a hard thing and and i
know that scott and i have done
investigations in our career i know that
you've done many more
than than both of us probably combined
and my question is
for you you know does it ever does it
ever get easy
is it still hard every because every
time you go in to a school or an
organization
you know you've got folks who already
have some strong opinions about what may
have happened and
and you're getting a lot of information
from both sides and some of it may seem
um uh pretty dark from the get-go and
and it may seem like some conclusions
are foregone
how do you you know as a seasoned
investigator
um is are there any tricks or anything
you do to try to prepare yourself or
clear the mind or
be objective or is it just one of those
things you have to kind of discipline
yourself
to try to do i think it's the latter
actually because
we are humans and we all come at these
investigations with their own personal
experiences and beliefs and opinions and
it is
admittedly very hard to check that at
the door i think what's important to
remember is that
this is not being done in a vacuum and
the the information that you
as the investigator look at and rely
upon is going to be
um called to the mat as the adjudicator
is looking at that information and
eventually if
if it results in any sort of litigation
so
you have to constantly check yourself
and say how is this going to hold up how
is my reliance upon this information
going to play out
and and that should be sort of the
touchstone that brings you back to
only look at it objectively only look at
it
through a sort of vacuum
of this is the only information that's
available to you because otherwise
if if you aren't constantly checking
yourself personal beliefs personal
experiences are going to wind their way
into it and that
truthfully is made even more difficult
if the investigator is a part of this
institution and might have prior
experience with the people involved in
this
complaint process so being very mindful
being very present and constantly
checking
your approach to this information is
going to be incredibly important through
this process
one of the other things we talked about
was um was legal privilege
and and uh that specifically called out
in the regulations um
could you could you walk us through what
what is a legal privilege
and and how where would this arise for
an investigator how would this come up
in an investigation
so from a 30 000 foot perspective the
law recognizes a couple of
uh specific and discrete privileges
there's the
attorney-client privilege which people
are probably well-versed in
there is the priest and penitent um
exception and privilege the doctor
patient privilege and the spousal
privilege
the way this will frequently play out in
the course of an investigation
is that if a witness or one of the
parties has an attorney
you as the investigator have to be
cognizant of the right
that that person has with their with
their attorney which is to say
uh it would be inappropriate for an
investigator to say
what have you told your attorney you
know what uh tell me about those
conversations that you and your
attorney have had tell me about
conversations that you have had with
your doctor if we're dealing with some
sort of an assault
investigation and so constantly being
respectful and aware of any privileges
that might exist
and and avoiding um any attempt
to invade that privilege and ask about
conversations or documentation relevant
to that privilege is incredibly
important for the investigator
susan what if if you were interviewing
someone
and because it may be that witnesses or
complaints respondents
they may not be aware of these
privileges and i'm just curious if
you've been in situations or what you
would recommend if you're interviewing
someone and they were to say well you
know i was talking to my doctor
yesterday and we had this long
conversation
let me tell you about it would you stop
them or would you
at that point sort of ask them well what
was the context of this conversation
how would you handle something like that
i would stop them first and remind them
of their privilege
and only if they say they're willing to
um
continue the conversation would i go on
because it is the right of the
individual to waive that privilege but
it needs to be
a waiver with knowledge and with
appreciation of what it is that they're
giving up yeah
now let's go over a few key concepts uh
another other key concepts for uh
the rest of the presentation um so the
first we're going to talk about is the
burden of proof
uh and here it's ensuring the burden of
proof and burden of gathering evidence
rests on the school
and not the parties and here what we
mean is
uh that the complainant is not
responsible for proving that the
respondent
uh is responsible for for conduct and uh
conversely the respondents not
responsible for proving they're not
responsible for certain conduct
the school has the ultimate burden the
ultimate responsibility
uh to figure out what happened here uh
and to gather enough evidence in order
to make that determination
the second piece that we want to talk
about is equal opportunity uh and here
it's the equal opportunity to pro
for parties to present fact and expert
witnesses
and other inculpatory and exculpatory
evidence
and this kind of gets back to what we
talked about earlier about equity
between the parties what you do for one
party you have to do
uh for the other and also introduces a
new concept of expert witnesses which
may be new for a lot of institutions
that those are explicitly permitted here
third schools must refrain from
restricting the party's ability to
discuss the allegations
or gather or present relevant evidence
this might be a little bit of a new
concept here
some schools in the past did
put some restrictions and prevent
individuals from doing their own
investigations or
talking to witnesses here the department
says that it's absolutely
not permitted each party has to have the
ability to to gather and present
relevant evidence
scott i actually want to put you on the
spot here if you don't mind
um as as of the three of us the
individual who spent the most time
in-house i'm just curious what you think
about this provision i get this question
all the time from clients
uh colleges and universities they say
we've got this issue that's arisen on
campus
and the problem is my complainant and my
respondent are talking with their
friends and they're talking with their
family and they're spreading rumors
um et cetera i assume there's some
uh there's a line here right
between not being able to prevent them
from talking so
honoring this this piece but also
ensuring that they don't cross the line
into retaliatory
type behavior and i was just wondering
if you could talk a little bit about
what you think this challenge is going
to be like for schools your practical
experience
and and maybe highlighting that line a
little bit
you know um again between what what's
them just talking and what's them
engaging in behavior that might actually
um trigger your retaliation policy
no i think that's that's a great and
important point and a lot of schools did
take the line that
uh to restrict this behavior because of
the concern about retaliation
uh and i think it's absolutely a a real
concern it's it's not only
retaliation but also uh complainants or
respondents kind of going to witnesses
and trying to
uh to feed a side of the story to them
trying to
um to get them to participate when they
don't want to um there's
there's a lot of things that that could
take place that could be problematic for
institutions
um here the regulation is clear that you
cannot refrain
you cannot um prevent them restrict them
from gathering evidence
uh but what you can do is is inform them
of your retaliation policy which is a
new requirement of the regulation as
well
and just kind of let them know that you
absolutely can
uh gather and present relevant evidence
have these discussions
but understanding what retaliation is
and understanding
that retaliation kind of will not be
tolerated in this kind of conversation
yeah um so two more
concepts to discuss first notice and
timing um
so you have to provide for the party
whose participation is invited or
expected
written notice of the date time
location participants and purpose
of the hearings and investigations with
sufficient time for the party to prepare
to participate
uh hopefully this is something that you
guys that institutions have been have
been doing in some form or another
over the past uh before these
regulations have been
promulgated but it is explicitly called
out here and you want to make sure that
you have all these elements and
potentially even a form notice that you
could provide
to to make sure you meet all these
and the last is the investigative report
which we'll discuss
which includes um a report that fairly
summarizes the relevant evidence
so susan one of my questions for you as
a seasoned investigator
you know i look at this first bullet in
this little first line about
providing to a party whose participation
is invited or expected
um written notice of the date location
participant
etc for all hearings interviews and
other meetings
one of the things that in my mind always
begs the question
how do we know who to interview so we've
got a complainant
who shows up and says i've you know or
maybe a toddler corner somebody has made
a report of an allegation of sexual
harassment and has filed a formal
complaint
and now you've been brought in as the
investigator um and you know
maybe who your complaint is and you know
probably who your respondent is
and you've talked to them and maybe you
have an idea of who some additional
witnesses are but as they talk
and as scott mentioned earlier as they
try to corral additional people
potentially to speak on their behalf
how do you as an investigator decide um
you know what's the order of that i'm
going to go in to talk to people and
and how many people do i want to speak
with and you know do i talk with anyone
who calls me up and says they have
something to say
how do you sort of uh vet all of that
and
and form your game plan i think it's a
great question and one that doesn't have
a one-size-fits-all answer
i think you need to stay very nimble as
you're approaching these types of things
and um be cognizant of what
information do i need to get to the
truthfulness
of the allegation and not just assume
that it should be a scorched earth
approach
if you find after speaking to the
complainant which is always my first
step and hearing certain names that are
coming up during that investigation or
during that conversation
and then my usual next step but again
usual
not uh set in stone next step is to
speak to the respondent
and if the same names are coming up then
that's a very good guide post to say
those are the people we need to speak to
if in speaking to the complainant you're
hearing
certain names and then others that
seemingly can
corroborate what either the complainant
or those witnesses are going to say
it might very well be that you don't
need to speak to every single person i
don't think there needs to be this
understanding that you automatically
have to speak to every single person
that either the complainant or
respondent
reference because there is a certain
sensitivity to
understanding that it's possible that
these folks are going to have to
continue to interact
in the days weeks and years to come and
uh an appreciation that maybe the most
disruptive
approach to an investigation is not the
right approach um
i i fear that my answer is not actually
very helpful because what you're
probably gleaning is that there is no
answer that is automatically um the
right answer
really needs to be a thought through
well-reasoned approach
and and not just a every name that's
mentioned is the appropriate person to
speak to
i think seeing themes in the responses
of the complainant and respondent is the
way to
approach it and only after speaking to
some of those key players
if there's an appreciation that i'm just
not getting any
consistency or or i need to be guided by
more
uh voices in the conversation only then
would i think to go to
some of those more ancillary um
potential witnesses
yeah candidly it's probably the kind of
thing that you get
better at over time as you do lots of
investigations knowing
sort of developing a an internal sense
of where those lines are drawn
but for folks who may be in this for the
first time
the salient point that i really take
away is but you don't have to interview
necessarily
everyone i mean if there comes a point
where you are confident
that there are people who want to speak
to you who have nothing new to add
you could decide not to interview those
people
i think that's right and i don't think
the mere decision to not
interview someone automatically
invalidates the investigation
in uh in its entirety perfect
yeah scott i've i've i've advanced the
slides the notice of allegations
all right you have no choice rocking and
rolling let's go um so notice of
allegations
is the next one we'll talk about um so
here uh
we have um this concept of a formal
complaint
um and we've we'll go through the formal
complaint in great detail in another
another module but
it is a term of art that's very
important to kind of know that aaron
kind of sketched that at the beginning
but upon receipt to this formal
complaint the school must provide
written notice to parties and that
written notice has to include
first a discussion of the formal
complaint process
and an informal resolution option and
we'll talk about informal resolutions at
the end of the presentation
a sufficiently detailed statement of
allegations
so here the regulation says sufficient
detail includes
the identities of the parties if known
the conduct
allegedly constituting sexual harassment
and the date and location
of the alleged incident if known so here
the idea is
you want to give the parties the benefit
of
information so that they could they
could prepare a response
and uh and kind of know the allegations
against them before they come in for
this interview
uh next a statement that the respondent
is
sorry presumed innocent
uh we talked about earlier and that the
determination of responsibility is made
at the conclusion of the process
that needs to be included in your notice
next a statement regarding the right to
an advisor
and review and inspect evidence and last
a reminder that the school knowingly
that this school prohibits knowingly
making false statements
or knowingly submitting false statements
so we talked earlier the parties
have to be provided sufficient time to
prepare and we'll go through those
timelines
a little bit later and an important
point is
if in the process of your investigation
you decide or determine or find new
evidence that
a new potential violation of policy that
you might want to pursue
you have to provide an updated notice um
that the school decides to
uh is pursuing that and with the
sufficient detail that's required
for the student to be able to prepare
adequately for for this new allegation
all right next so confidentiality
so the requirement here is that schools
have to keep confidential
the identity of an individual who's made
a report or complaint
of any sex discrimination including
reporter respondent
or witness except for three exceptions
first exception is as may be permitted
by ferpa so ferpa is the
privacy law that governs institutions of
higher education so if it's permitted
this confidentiality
uh does not need to occur second is
required by law
and third most relevantly to carry out
the title ix
uh regulations so having a
investigation hearing adjudication
obviously you're going to have to
to name parties and incidents that occur
that may be
uh protected by confidentiality and here
this is saying that
this doesn't apply uh for the purposes
of of carrying out this regulation
and i it's probably fair to say that
confidentiality
concerns i mean for for
for investigators adjudicators i mean
everyone it's important to be really
mindful of confidentiality
overall right i mean the the sort of
rule that we've noted
rule of thumb that we've noted in other
presentations is to
always try to keep things as
confidential as you can while doing the
job
um but when you get to these specific
issues around
ferpa et cetera i mean the right person
on campus to issue the
answer those questions if you have a
ferp officer but otherwise counsel et
cetera i don't
my point is there's not an expectation
for example that investigators
uh judicators or others will necessarily
become experts in ferpa but what they
should do is be aware of this
requirement
and uh be ready to talk with timeline
coordinators or council if they have
questions around these kinds of issues
that's a great point
yeah no but no one can be an expert in
in all these uh
all these pieces and nuances so you
definitely want to
seek help whenever you have a question
um so here let's talk about access to
evidence requirements
um so here we're going back to the
touchstone of equal opportunity equity
uh the regulations explain that
institutions must afford both parties
equal opportunity
to review and inspect evidence that
was obtained as part of the
investigation and
is directly related to the allegations
so here the regulations specifically use
the term
directly related rather than relevance
so at this point
in the in the process directly related
is kind of a broader
uh universe of evidence than relevant
and parties need to be afforded an
opportunity to review evidence that's
directly related to the allegations
relevance decisions are made later as as
we talk about
um and as the as the slide notes
this includes evidence which the school
does not intend to rely on in reaching a
determination that could include
relevant evidence
and inculpatory excludatory evidence
as part of it susan i'm just curious
before we go on to the next slide
one of the things that this raises in my
mind is the logistics
of of managing an investigation you know
you could have at any time
a complainant or a respondent asked for
access to evidence
you know you might have people call you
back up with more questions you may have
follow-up questions
presumably you're trying to stay in
contact with the title ix coordinator
and other appropriate parties
um it's a lot i think to to take in
and to be prepared to manage
particularly if you're being asked to
sort of step into the role as a title ix
investigator and it's something new for
you
or even if you've done it once or twice
it's still a lot i'm just curious if you
could comment a little bit
on how you manage investigations and how
you work with schools or businesses or
organizations
when you're in this process um i would
think
title ix investigators at a campus are
sort of like outside council in the
sense that there are
others at the institution who are more
involved in the process that they've got
to
work with hr council etc how do you sort
of manage all those logistics and
approach all of that
i wish i had an easy answer for that
because it can be a bit of a circus
the reality of the situation is that you
have to manage it you can't allow it to
run off the rails
and um you know let any one party kind
of take over it
so um having an even hand and
appreciating that this is very emotional
for
all parties involved is important and
and treating it with the dignity and
respect that it needs
so making sure that there are clear
lines of communication making sure that
everyone here
feels that they've been heard as part of
it
keeping people up to date on the status
of the investigation so that there isn't
any sort of
confusion or um ambiguity about where we
are in the process
uh i think that's extremely important
and oftentimes will
alleviate the chances that people will
um
be bombarding you with questions and
demands for information
on any sort of regular basis yeah i
guess my
takeaway for folks if if you are
a faculty member or professor or someone
who being a title 9 investigator is not
your full-time job
i mean i you know i guess my follow-up
to that would be if you're being asked
to be an investigator
uh it it at least for the period that
you are in that role
it is serious business and it's probably
going to require a great deal of your
time and attention
um and you've got to invest that time
and attention to make sure that it gets
it gets done right so your school's
asked you to do something pretty
important
for at least the time period that you're
acting in that role
what do you think scott next slide
sounds good to me
um so here uh kind of lays out the
the the touchstone of acts just evidence
um is is providing this access uh at
reasonable times in order to
to allow people to respond meaningfully
um but there are specific timelines and
deadlines and the regulations that they
should be aware of
um so generally first you have to
provide access early enough
to make sure that each party can
meaningfully respond uh prior to the
conclusion of the investigation
so that's something that kind of should
be in the back of your mind
but prior to issuing the investigative
report the school the investigator must
send
parties all evidence subject to
inspection review
and afford at least 10 days to submit a
written response
so this is this is prior to the
investigative report
you have to you have to build in a
10-day process to submit
written response next 10 days prior to
the hearing or other determination
you have to send the investigative
reports to the parties for their review
and written response
and last at or during any hearing
you must make all evidence available to
parties and afford equal opportunity to
review
uh that evidence including for the
purpose of cross-examination
so to the extent that that that you're
building in that you're developing your
process now
uh make sure you consider these these
time frames uh and
the general kind of uh approach to
the evidence here make sure that that
you have sufficient time to
um to meet these requirements
all right so next serving impartially
let's talk about that
um so we introduced this at the
beginning
investigators can't have a conflict of
interest
or bias for or against complainants or
respondents generally
or an individual complaining to
respondent so
very high level terms this means that
your investigator
can't have a have a general
a bias or conflict against everyone
who's a complainant or everyone was
responding
anyone who has is involved in an issue
of sexual assault generally
but also to make sure that the
investigator doesn't have a
conflict or bias against the individuals
they're investigating so
at the outset you want to make sure that
your investigators are
free of conflict and can objectively
evaluate evidence for for
these really sensitive situations but
specifically just to make sure that
for each case they investigate there's
no conflict or bias
as we mentioned investigators have to
objectively evaluate relevant evidence
uh and they have to be able to do to be
able to do that
they need to be free of conflict and
bias susan i
and i and scott both of you i'll open
this question up because i think this is
a
this is trickier than it sounds right in
my mind
if you are ohio state i always use ohio
state as my example for a big school
ohio state or university of california
or ut austin
it may not be that difficult for you to
find investigators
who have no relationship at all to the
respondent of the complaint
but at small schools and there are
thousands
of small schools title ix applies not
only to you know
the big state institutions and the elite
ivs but
every institution regionals small
faith-based institutions career schools
even miss betty's beauty academy down
the street
so you could have institutions where
it's very difficult to find a faculty
member
or an employee who doesn't know
virtually every student or every other
faculty member and
my question to you is when you're
thinking about this requirement i mean
at what point does an investigator have
to say
look i know i'm a you know i'm a faculty
member i know but i'm not in their
department but i know both these guys i
play golf with
jim you know and and my wife and i play
bridge with jane and her husband and i'm
not sure
i can do this you know how do you make
that decision
and particularly in a smaller school
environment you know what
where do you draw the line because i'm
concerned that there will be
institutions that have a really hard
time
finding individuals who don't have a
conflict of interest and maybe that's
when you start
looking to consortium arrangements or
outside counsel or consultants
et cetera what are your thoughts on that
i would completely agree and i think
this kind of training is a great place
to start so that
investigators know that they have this
obligation but also the right
to say i just can't do it i know that i
just can't be
completely and totally unbiased either i
know
these people or i know that the
complainant has made
similar allegations in the past or i
know that the respondent has had
allegations
made against him or her in the past and
knowing that they have the right and the
obligation
to speak up and say i just don't believe
that i can be truly impartial
is in vitally important and you're
absolutely right that's where
i come in or any sort of outside service
comes in to say
okay then this is one where we do have
to go outside of the institution to
ensure
that the investigation is done with the
level of
impartiality that it deserves and i'll
just i'll just add quickly that
it's really incumbent on investigators
to know this and make this decision at
the outset because it's a lot better to
know this at the start
before an investigation starts where you
could kind of plan accordingly
then after the investigation has been
completed and you're in litigation or
review by
the office of civil rights
um so susan this kind of gets to some of
erin's questions um but
really to button up specifically um
first
uh what does it mean to have a bias or
conflict of interest for an investigator
great question um and much like many of
my other answers
it means a lot of things and it means um
that we're constantly having to be
cognizant of our own prior experiences
and history as we're going into things
but from a very high level it means that
we need to avoid any prejudgment going
into the investigation we can't
make a determination before we've heard
the evidence
we can't make inferences based on
the gender of the person who's making
the complaint or the gender of the
person who's the respondent
just the avoidance of those stereotypes
right out of the gate
is exactly what we're talking about when
saying that an investigator needs to
come into these
without any sort of bias or conflict
yeah and i'll just quickly add that the
preamble explains that
that a prior op-ed or
or participation in certain groups say
for example for
uh for men's rights or women's rights
around this issue does not automatically
disqualify
a person uh you really kind of have to
get into the nuts and bolts here of
how this person responds to the
situation and whether they do have a
conflict
so just affiliations uh just want to
make clear are not
sufficient um itself you really have to
go into
specifics of each individual and we
talked about
uh how investigators can uh
can kind of make decisions and kind of
let institutions know they have bias
what can an institution do to kind of to
make sure that investigators
are remain free of bias and conflicts
yeah again i think
this type of training and trainings like
it are vitally important
for institutions to be providing to
their investigators so that
they know what their rights are they
know that they have this
duty and right to say i can't do this
they shouldn't just
um be told that because they've been
selected as the investigator they have
an unfettered obligation to follow it
through so institutions getting out in
front of this and making
the rights of the investigator clear uh
is is
important and a wonderful first step and
then the
follow through on the institutions part
to say we won't penalize you and in fact
do not penalize
those who come forward and say i cannot
do it i i just simply cannot be
unbiased or i have a conflict of
interest i
i do play golf with the respondent
or i have been involved in other
investigations myself
involving this complainant things like
that
practicing what the institution preaches
is vitally important so that it's clear
that if an investigator does step
forward and say i i do have a bias
there won't be any retaliation or
retribution against that investigator
yeah and i know i'll just add for the
smaller institutions that are listening
to this and thinking well wait a minute
i mean if we train two or three
investigators and they're all conflicted
out because everybody knows everybody
does that mean we have to go outside
every time um
maybe but what i i want you to know is
it doesn't necessarily mean that there
are a lot of folks thinking about this
issue right now i know
that there are some school associations
that are talking about consortium
arrangements
um that's been in out there in the ether
and part of conversation for four or
five years now and there are a few
examples already
i think with the advent of this new rule
there's going to be a lot more momentum
around getting groups of schools
together so that for example you can
create a pool of investigators
and without having to with all due
respect to myself and my colleagues
hire expensive attorneys every single
time you have a
formal complaint of sexual harassment
you know what you can do is potentially
go to another school in your athletic
conference or in your region
that has some title ix investigators and
you all just agree
that um you may trade personnel to avoid
conflict of interest type issues so
i think there are some creative
arrangements out there that are being
formulated and i think that's a really
good idea
there are situations where um
because of the stakes of the severity of
the issue you may well want
susan or some other attorney to come in
and and run point on an investigation
most certainly but there are also going
to be
uh complaints formal complaints of
sexual harassment where you really don't
feel like you need a
a professional investigator but you have
trouble with the conflict of interest
question and that's where that
consortium type arrangement could be
really beneficial so
we support that and i hope that schools
will continue to work with other schools
to find efficient ways
to take into account the conflict of
interest concern
without busting the budget as well i
think they will
perfect and and last susan um we've
talked about this concept uh a number of
times
uh inculpatory and exculpatory evidence
in terms of evaluating
uh relevant evidence objectively um can
you explain what would each mean and how
they would come up in the investigation
sure absolutely and these are legal
terms that
don't often trip along someone's tongue
so i appreciate that we need to level
set a little bit on this
inculpatory evidence by definition is
evidence that
shows or tends to show the respondent's
responsibility
and conversely exculpatory evidence is
evidence that tends to show that the
respondent is not responsible
and the bottom line here is that it's
all going to have to be
assessed by the investigator an
investigator cannot
must not only look to inculpatory
evidence and exclude exculpatory
evidence and vice versa
so as we'll see when we're talking about
the report
and credibility determinations the
report really needs to
take a look at both types of evidence
when proceeding through the
investigation
so let's dig into a topic that we've
talked about throughout the presentation
and really kind of dig into a little
more detail and that's issues of
relevance
um so here the this is this is
especially important because
the main product of the investigator
is to create that report for
adjudicators
to to consider that fairly summarizes
relevant evidence
uh and we'll dig into um a little more
detail but first wanted to to touch on
one point
that's made explicit in the regulations
about
what is not considered relevant evidence
so the regulation state
and for those of you familiar with legal
concepts this is kind of a
rape shield rule that the department
included but
evidence about a complaint in sexual
sexual predisposition
or prior sexual behavior are not
relevant
unless and i'll read this because it's
important
such questions and evidence about the
complainant's prior sexual behavior
are offered to prove that someone other
than the respondents
committed the conduct judged by the
complainant or
if the questions and evidence concern
specific incidents of the complainant's
prior sexual behavior with respect to
the respondent and are offered to prove
the concept of consent
so generally evidence about the
complaint and sexual predisposition or
prior sexual behavior
are not considered relevant except for
these two narrow exceptions and for all
of the
adjudications that i've been a part of
this issue comes up
fairly rarely but it is very nuanced so
important to
know this exists important to have an
understanding of it
but it is a it is a concept that that
kind of threads a lot of needles so to
the extent that you need to
to if this comes up think it through or
ask for help this is this is one of
those times that you might want to do
that
important concept um so
let's let's generally talk about
relevance susan
um what what is relevance uh and what is
relevant evidence
that's a foundational concept we want to
make sure we understand it
yeah and again going back to um the
general legal understanding of the term
because this is not a term that is
defined within the regulation itself the
regulation
says that the ordinary meaning of
relevance will be applied here
so under most
rules of evidence evidence is defined as
information pertinent to proving um
whether information is material to the
allegations
alleged and whether that information
makes the allegation
more or less likely to be true
you might say well then if i hear that
information
over and over again does that make it
more relevant and the answer is no the
the repetition of the same information
is not going to make the information
or the evidence more or less relevant
it's truly whether that information
goes to the allegation and making it
seem more likely to be true
and so getting to the the responsibility
of the investigators that this
investigative report that summarizes
relevant evidence
so if you're an investigator you would
have
evidence that that that might not be
related to the the
incident at all you could have evidence
that's directly related to the incident
but not relevant
and relevant evidence an amount of
interview notes and transcripts
documents all kind of needing to be
synthesized into a
coherent structure that is is helpful
for adjudicators
in order to come to their determination
um it's a very broad question but
how do you do that what's some advice
you can give for investigators to
to make this possible well and i think
you've hit the nail on the head
um we want to produce a report that is
helpful to the adjudicator
and with that principle in mind um
i think it's important that the
usage of the information is presented in
a way that makes clear to the
adjudicator how you went about gathering
the information
what steps you took so that the
adjudicator has an appreci
appreciation right out of the gate that
um
the investigator spoke to specific
people
that specific documents were requested
whether that's texts emails
any other records that the complainant
or respondent may have
alleged include the alleged incident
itself
and all the people and witnesses that
you spoke to
highlight any key factual findings that
you
attained during your investigation
specify the relevant evidence that was
looked at whether that be
conversations or or documentation
and then lay out the specific policy
that is alleged to be violated
i think if you're guided by those
pieces it'll help form the narrative
that will
provide the adjudicator the information
that's necessary in order to determine
what information was relied upon and
deemed relevant
and it's very you know i know we're
giving folks a lot of detail here and
there are there are a lot of details
there's a lot to absorb and
over the years is if you are regularly
uh serving as an investigator you'll get
better at sort of absorbing all those
details and putting them into practice
but
you know susan as i listen to you and
and scott it seems to me
that you know if i'm new to this what
are the things we should be telling and
a brand new investigator and in my mind
you know the sort of high level ideas
are
um be objective that's really important
be careful
it is important to be careful and then
when i look at this it seems like it's
important to remember too that at the
end of the day what you're trying to do
is provide the information
that will allow the school to get it
right so when you're thinking about
what's relevant
you know the ultimate objective of the
institution and if you're an
investigation is to try to figure out
what really happened and to come to the
right and just
conclusion so evidence that helps you do
that is
is relevant and appropriate evidence and
you know i
i just i fear that folks are going to
get so weighted down and concerned with
all these details
and the details are important but um it
seems to me it's important to also keep
in mind sort of the high level
philosophically what it is you're really
here to do and that is to try to get to
the right answer
and i think that's absolutely right and
needs to be sort of the level set here
what will often happen again because
we're talking about humans right we're
talking to humans about a human
interaction
um when you're speaking to a complainant
a respondent and the witnesses
it's not uncommon for any one of those
people
to decide to share everything that's
happened
in that person's relationship and as the
investigator
i find it um helpful to allow the person
to speak
right you don't want to cut them off you
don't want to minimize their experience
you don't want to put them in a
defensive position
but that doesn't mean that everything
they have to say should end up in the
report or is relevant
so knowing that you have to continue to
come back to
the policy that's alleged to be violated
and the
incident itself and let that be your
touchstone
even as the person might be veering off
path
and over sharing is really going to be a
helpful
um level set throughout the whole
process
yeah that's great great advice great
advice
interviews yeah um so let's talk about
interviews and and i think the first
question we have for you susan we
already
um touched on uh so if you have anything
else that you maybe think of in terms of
which individual interview we'd love to
hear that
um but really uh just once you have
determined who to interview um how do
you determine
what to ask them you mentioned before
you want to put them at ease
how do you how do you do that how do you
make sure that that
the pers the people you choose to
interview uh you're you're getting the
information you need from them
yeah and real quickly to to go back up
to the first question the one thing i
think
is important and maybe obvious but maybe
it's not
you really need to ask both the
complainant and the respondent
are there any people that you think
would be helpful to this investigation
for us to speak to
because if you're only asking the
complainant that
um you are right out of the gate
invalidating the investigation it's very
possible that the respondent
has witnesses themselves that will be
key
to that inculpatory and exculpatory
evidence that we've already talked about
but once you do have that list i like to
tell anybody that i'm training and um
and certainly utilize
this process myself number one come
prepared
you know don't go into it blind although
um
sort of the countervailing principle to
that is
if you apply the funnel method which i'm
about to describe
you could go into it cold and still get
out really great information
so the final method is just that you
start out very broad
and go more narrow so if you start out
your investigation by asking
the complainant respondent witness
whoever it may be
tell me what you know and then letting
that
guide you in your follow-up questions is
a really
effective method because if you allow
the person to get their full story out
and then come back to um the
information they gleaned and continue to
whittle it down
okay you mentioned on such and such a
date this happened to you
and and then start getting more and more
granular
with those questions who else was around
was anybody
asking someone questions during that
process
anybody that witnessed this you know
what what was the person wearing what
you know just getting more and more
narrow as you're working your way
through
you will ultimately be able to at the
end of that conversation say
is there anything else you think i
should know and if they give you more
information you start the process all
back over again
and and really get more and more narrow
as you go through the process
as opposed to being so wedded to a
script of questions that you're missing
out
on really being able to hear what the
witness
complainant respondent is telling you
and
gleaning information that way more often
than not
novice investigators really get
thrown off their their game if they are
so wedded to a script that they're
missing out and really listening
to what the person is telling you
whereas if you go in with the very open
tell me everything and then um follow up
with
specific questions after you've hear
what they've had to say
i think you're going to get a lot more
useful information
yeah and i think that's a that's a great
point um
all of them are great points but i think
just from a from a
risk management or institutional
liability perspective
uh part of the goal here is to to make
sure that
the complainant and respondent feel
heard feel that they're
they have a fair process feel that they
are not being judged and that they're
being listened to
so i think that approach could could do
a lot in potentially
making them feel that they uh that are
going through a fair process regardless
of the outcome
hey susan scott i'm curious i don't
think this is a question we have on our
slide deck here but
um how important is it you guys think to
have
two people in the room when you're doing
interviews whether that be two
investigators or just a second listener
with the lead investigator doing the the
real work but
um is i know that a lot of times that
can be a worthwhile consideration what
do you think yeah i would definitely
agree
if it is feasible um that it's very
helpful to have somebody in there as
sort of the note taker
and the listener whereas someone else is
doing the questions i don't think it's
appropriate
for both of them to be playing the role
of questioner because then it feels very
much like an interrogation right we want
this to be
a respectful comfortable environment for
all parties involved
so i think the roles of the two people
need to be very clearly defined
and explained to the person um from the
onset
but i think it is helpful for someone to
be in there as a bit of a scribe
um so that the investigator the one
asking the questions really can be
having
more of an interactive conversation as
opposed to you know having their
head down um scribbling notes the whole
time
and then also circling back with that
other person before you
end the invested investigation or that
specific questioning
to say okay is there anything that you
heard that i didn't circle back on
and um making sure that the two are
working together
um to really provide credibility to the
conversation
could be very helpful if it's not
feasible
then i i think circling back to the
concept of bias
and impartiality you know if in some of
those smaller schools it's just not
um possible to to have another person
that
can be unbiased and impersonal and isn't
only taking notes on the things that
they think is going to help the case
then it's certainly not a requirement
but it can be
helpful if it's if if doable
let's talk a little bit about advisors
we haven't talked about it in this
presentation yet but
but under title ix the all parties
are eligible to have an advisor of their
choice this could be a parent
a student a friend or an attorney
and sometimes when you have an attorney
whose job is to zealously
represent their clients even though they
might
not technically be acting in an attorney
capacity here
um there could be some difficulties push
back
um overzealousness uh similarly
for a parent who's advising their
son or daughter and potentially the
worst thing that's ever happened to him
in their life
temperatures could be high how do you
respect the role of the advisor but also
make sure
as an investigator you're you're
you're maintaining order and getting the
information that you need
i think it's important to set the tone
right out of the gate
that the investigator is the one who's
in charge of this
and that needs to be done in a
respectful way but also in
a bit of a stern
tone that i am the one that will be
conducting this
interview i have rules around that
i'm going to clearly explain those rules
and expectations to you i'm going to
enforce those equally
and really make it clear right out of
the gate that this is not going to turn
into
any sort of circus or um shouting match
or uh you know that
that you're going to be the one that's
going to be keeping control of the
interview and
um making sure that that is really
made clear from the get-go i think is is
incredibly important and appropriate and
frankly within the investigator's right
to do so
um so making sure that
um that you keep that control and
if necessary terminate the interview if
the advisor is not
acting appropriately um is also within
the in
investigators rights and something that
should be done
in order to maintain the credibility of
the interview
so i want to turn next susan to the
issue of um
law enforcement so here we're talking
about
uh potential sexual assault which is a
criminal
offense uh could be investigated both by
the institution
and and by law enforcement
how as an investigator do you
with without police power without
subpoena power
handle a concurrent law enforcement
investigation about the same topic
with the same witnesses and the same
evidence
yeah and i think that is an important
point because it's very possible that
that concurrent action
would create a basis for postponing an
interview
or seeking an extension under the normal
timeline
because you certainly don't want to do
anything as part of your investigation
that
impacts or negatively affects the
concurrent law enforcement investigation
especially if that could then um
if if information could be gleaned
through the law enforcement
investigation who does have
those types of subpoena powers and other
regulatory authority that you just don't
have
that that information could be
beneficial to your investigation
and um it deserves then the ability to
to work its way through the process so i
think it's important that investigators
think seriously about whether or not
they should postpone
or seek an extension in those situations
right and i'll just add the the preamble
addresses this
um and kind of uh takes the view of
you have to look at the the definition
of of short-term delay
under under your policy so to the extent
that you have a
police matter and you're in contact with
an investigator and
they kind of say hey my report or this
evidence is will be available in two
weeks
that could be a reasonable short-term
delay uh if the
if the um the thing is uh we have a rate
kit it's going to be processed in one to
two years
that might not be a short-term delay and
you might have to to kind of go ahead
with your investigation there
but make sure that that you are in
communication that there is coordination
and that whatever actions you're taking
is uh
has this this short-term delay this good
cause
uh exception to the prompt requirements
in mind so next
talk a little bit about credibility
determinations
i'm going to make one point about
credibility determinations
so here the decision makers
the adjudicators are the ones that have
the determination
to uh to to ultimately make their
decision
so it really kind of uh puts
investigators in
a interesting position uh because what
do investigators do
in terms of the report to be helpful but
not to kind of pre-judge a situation for
an adjudicator
credibility you want to first make clear
that an
investigator can make a credibility
determination
if they if they choose to um but under
the following
caveats so first credibility
determination can't be based on party
status
and second the investigator's
determination uh
regarding responsibility uh regarding
credibility can't can't be a
determination of responsibility so
uh you can't kind of prejudge a
situation as a
as an investigator that would kind of
lean a decision maker to to kind of make
one point of the other
so that being said it's up for an
investigator up for schools to determine
whether the best and highest use is to
report the relevant evidence as
is required and kind of leave it at that
or if there are some
credibility judgments that they want to
include
within these specific rules that would
be helpful for adjudicators but also
would not be taking the place or
responsibility of an adjudicator here
and now let's let's turn to the
collection and review of documentation
so here uh as discussed in the previous
presentation
records of each sexual harassment
investigation need to be kept for seven
years
um and so while investigators might not
be responsible for
maintaining records a lot of the records
they're producing
are are those required uh to be kept
under the regulation under law
um so it's important to be aware of what
records are required to be kept
and make sure that you're you're
providing those um to the appropriate
party
so that they could be stored in case of
further need in the future
uh susan i'll i'll turn to you um
just curious about some best practices
uh for review and collection of written
documentation yeah i think
keeping a transcript both of your own
written requests for information and
any requests for witnesses and whether
the witness
was willing to cooperate or not you know
really keeping a thorough set of your
own notes
and any um requests you made is vitally
important
uh as you become a more seasoned
investigator
having sort of a template of your
regularly requested information is very
helpful because then that also shows
that there is nothing
unique or potentially
biased about any requests you have for
this investigation
and then making sure that you are
retaining that information that is
produced
in response to your request um is
helpful
um i'm sure it's it's um
tempting to take audio recordings of any
interview so that there's no question
about what information is gleaned
um i would only add on that note that we
take into account state law depending on
where you are as to whether or not
you need one or two-person consent for
those kind of recordings
um so that we're we're not stepping into
some other
issue then of relying upon that audio
recording in the future
perfect and as an investigator uh in the
moment
um what should they be considering or
just having the back of their head
about potential litigation or audit or
things of that nature
i think it's important to be thinking
about potential litigation or audits and
just know that that is something that
could come out of your investigation
and the adjudicator's determination so
as you're putting your information
together as you're
taking your notes as you're making your
requests
it's helpful to be guided by the thought
of how is a judge a jury
an administrative agency going to look
at my notes
and as we've already discussed
credibility determinations don't
necessarily have a place in the
investigation so if in your notes
you are making um comments about this
person does not seem credible
that's going to be a an issue
potentially going forward so
being guided by the concept that your
notes might very well see the light of
day
is helpful and then again the concept
that
your documentation your investigative
notes
any requests need to be retained for at
least seven years
uh is something that you should be
thinking about when you're
putting together your your information
such that if something is referenced in
your notes
or in your transcript and then that
information is not readily available
uh and the case does go to litigation or
audit
you could be looking at a potential
destruction of evidence issue since you
do have that obligation to retain the
information for seven years
um and so moving along uh for
investigative reports and this question
kind of dovetails nicely into your your
last answer
but when you are writing an
investigative report
um along with litigation and potential
audit
uh what are the main goals what do you
want to include what what's important
for uh for for you to have for for
both the adjudicators to to find helpful
and for the institution to uh
to kind of have on record i think it's
important to remember what your role is
as the investigator your role is not to
come to conclusions and your role is not
to make your
personal opinions heard throughout this
your role is truly to be a repository of
information
and a uh explainer
of what information you obtained so
[Music]
taking a step back in when you begin
to cultivate your report and think in
terms of
if this becomes the first exhibit in a
lawsuit what do i want it to look like
what do i want it to provide and how am
i going to
best represent this institution that has
hired me or appointed
me to do this job is really key um
so think in terms of of what the
allegations are
what the policies are that have been
violated and how
best to encompass
all the information that you've gleaned
so that the adjudicator
or an audit committee or a judge and
jury
can benefit from the information you've
obtained
perfect um so i think that's that's
perfect and and with that
we're going to switch gears um from the
investigation piece
uh to informal resolutions um so i want
to just make sure
we understand we're kind of taking a
hard break and pivoting
and we kind of concluded the
investigations piece and
are talking about informal resolutions
here particularly because we want the
benefit of susan's expertise
and having kind of gone through these
resolutions and mediations in the past
but this is not a concept that's it's
related but not directly tied to
investigations so starting a new
informal resolutions
so under the regulations a school may
well first of all informal solutions are
an option for schools
so if the school does not decide they
want to have an informal resolution
process
it's not necessary to include one but to
the extent that
one is included the school cannot under
any circumstance
require that student or employee to
waive the right
uh to an investigation or adjudication
uh under formal complaints of title ix
um so there's there's there should be no
kind of pushing people into this option
this is this is something that that
could be very beneficial to both sides
if both sides are
are willing participants and not kind of
coerced by the school to enter into this
um i think i uh
so school's key yeah i'm sorry i mean
interrupt but just just real quickly in
case people aren't
you know haven't thought through this or
haven't been a part of these kinds of
processes in the past i mean
you know why why would a school want an
informal resolution process i mean what
you know what's the benefit there as
opposed to going through a full
investigation in a hearing
absolutely um that's it that's a great
question uh and i'll uh i might kind of
step on susan's
toes a little bit uh for for a post
slide but but really in a formal
resolution it is a process that that
would avoid
the all the the process and
the the trappings of formal adjudication
so it's it's
it's more relaxed it's kind of you could
you can more determine the outcomes the
stress levels might not be there uh for
the parties um
and hopefully it could be a way to kind
of
uh accomplish everyone's goals in a in a
less
intrusive uh environments very good
um so a couple more details about the
requirements for
informal resolution so
the school can his choice facilitate
informal resolution
that does not involve the full
adjudication
and investigation provided a couple of
couple conditions
first you have to provide the parties a
written notice disclosing the
allegations
the requirements the process the
circumstances
under which uh the process precludes the
party from
uh resuming a formal complaint
um uh any other consequences of
participating
uh and and records that will maintain be
maintained or could be shared
you have to obtain the party's voluntary
and written consent before
before entering into the informal
solution as well
last informed resolution is not
available to resolve
allegations that an employee sexually
harassed student the department said
this this is not an appropriate vehicle
for that uh for for a number of reasons
uh and maybe one of the most important
points here um
even if you enter into the informal
resolution process
at any time prior to agreeing to the
resolution
any party has the right to withdraw from
the process
and resume the formal complaint process
so just because you start down this path
uh
does not mean that you're you can't pull
the plug it really any time
uh and schools have to be aware and up
front of that about that
and and parties need to understand that
this is this is their right
uh so susan i touched on a little bit um
of these pros and cons before
um but as someone who is a lot more
experienced than me uh with informal
resolutions what what do you see is the
the pros and cons of each well i think
one of the biggest pros
uh in addition to everything you've
already said is that
there is a certain level of control that
the
both parties retain in the informal
process that simply are not
present in the more formal process once
the formal process gets underway as
we've already seen
um throughout both this training module
and the other two
there is a formal process and you really
don't
as the complainant or as the respondent
have a whole lot of say
and how that plays out you have very
little if any say
in who the witnesses are what the
information what the documentation
is that the investigator is going to
ask for and review whereas in this
process
you do have more control over that and
that could be desirable for either party
depending on what the issues are
and certainly then as the process plays
out if we get to litigation as part of
the process
any modicum of control goes out the
window
whereas in an informal process
you can have more say in the timing of
things
more say in what the outcome
and what the potential
discipline might be as a result of the
complaint
conversely though you know if this is
all unsuccessful
if we can't reach any sort of resolution
through an informal process
you've essentially kicked the can in the
um down the road for the formal
complaint because then we'd have to
start the formal process uh
if the informal process proves
unsuccessful
so if the goal is to get this done and
move on with one's life
it's possible that this will prolong
that
of course uh it's possible that it won't
and litigation would certainly
uh keep this process going much much
longer
um you also have fewer safeguards around
it so
while you have a right to an advisor
through the formal process you might not
during the more informal process and so
i think the name of the game here is
that when deciding whether or not to go
with the more informal process more of
the mediation
concept be fully informed of all your
your rights and the rights that you're
giving up by going through that more
informal process
perfect and then i think my last
question for you for you susan for this
presentation
um so schools uh could could provide
a facilitator uh to facilitate informal
resolution
um and if parties agree it could be it
could be a good option for all the
reasons you outlined
um what's what's best practices for for
facilitating informal resolution and
selecting
a person who would be good in this role
you know i think there's a lot of
overlap between
um best practices for the informal
resolution
and the person who's going to facilitate
that as there is for the investigator
in the more formal process you really
need as the institution to be
intentional in who you select and not
just
someone that seems to be available at 3
p.m on a monday
it's got to be somebody that's been
trained in how to do this
who is neutral and hopefully unbiased
much like the investigator themselves
so that it's successful because if you
put someone in that role who is
totally untrained and might be known
to one or both parties the entire
process is going to fall apart so
i don't want any institution to take
away from this that the informal piece
of it means you don't have to be formal
in
the structure of the
informal process i think to that
same point the neutral trained
facilitator
really needs to explain the process
and the benefits to the informal
resolution to the parties the same way
they will explain
um the process in a more formal setting
it
a fully informed informal process
is is key to this uh to the success of
of the process itself
um and yet also that same person that's
fully informed also needs to be
compassionate
empathetic and kind to all the parties
in order
for everybody to feel comfortable uh
really engaging in the process so
striking that balance
of a well-trained
and neutral facilitator with someone
who's also compassionate and kind is
going to be
key to the success of the process a
couple of the things that you can be
mindful of when
helping the parties reaching reach a
settlement is
um what the ultimate goal is if
if the ultimate goal is to be able to
continue to engage and interact with one
another
things like counseling and dispute
resolution
um training um ensuring that there's
repeated uh touchstones with those two
individuals so that
um if things are not going well in the
weeks and months in the future the
institution knows about it before it
reaches the point of another complaint
um changes in the the schedules
of the two individuals so that you can
ensure that the individuals
are not coming in contact with each
other all of that should be on the table
and um included when trying to reach an
amicable resolution of the
complaint i think those are all great
points
last last point to add um in addition to
what you laid out
it's clear that this disciplinary
measures against the respondent can be
part of an informal
this brings us to resources and we'll go
quickly through this last little bit i
want to thank scott
and susan uh for uh being a part of this
as always so much appreciate you
um uh being on the higher education
team and working with institutions of
higher education in addition to all the
other work
that you do for the firm um we have a
couple of things
let me go back i actually skipped a
slide i want to make sure to hit this
one so the office of civil rights
has a blog you could google office for
civil rights blog if you wanted to
or if you have the actual slides from
this deck you can click on that and
it'll take you there
but ocr has made clear that as they go
forward with interpreting the new rule
they will post a lot of their guidance
and thoughts here at this blog so
if you are at the school and you're
curious and certainly if your council or
title ix coordinator
you'll want this particular uh link in
your
favorites in your browser um we have
prepared a comparison
showing the changes that the new rule
made to the existing title ix regulation
that's also available
on the same page where you'll find the
slides so if you're the kind of person
who
like me really wants to see with some
precision what was changed by the new
rule
this will be a very helpful tool uh we
have a webinar series just for higher
education
and it starts typically tracks the
academic year starts in the fall goes
through the spring and we cover a lot of
topics title ix and others you'll see
here
in may 2020 we actually did a three hour
presentation on the new rule which was
sort of the
the seed for what became this training
series
um we also have a blog that we would be
delighted for you to check out
uh and then we have uh let me see
there's the blog
uh and it's a regulation i don't know
some people seem to like that name some
people not so much my wife
is not a fan uh but we write about
higher education
uh regulatory and policy issues and then
um finally
i'll note we do occasionally put out
free things like our bar defense
reporting guide and other tools for
institutions
to use um we will and you'll see after
i'm
i leave here i'll include just some
final slides with some additional
biographical information for susan scott
myself
and our disclaimer which at the end just
points out that we're not your attorneys
uh
if you've made it through this
presentation good for you it's one of
the longer and more complex ones and
we're glad you hung in there
we hope you will take the time to check
out uh some of the other modules if not
all of them
in the training series and with all of
that having been said
i'll just say from susan scott and
myself
be safe and be well
you