Title IX Training

Investigations/Investigative Reports

  1. Standard of review and the importance of investigations in decisions

    1. Burden of proof to collect information is on the IHE.
    2. Inspect and review any evidence directly related to allegations.

  2. Relevance Considerations

    1. Directly Related vs. Relevant. See also Section 8 on Relevance.

  3. Possible uses of investigative reports

    1. The decision-maker may use them in reaching their conclusion.
      • But please note, the decision-maker must make a determination regarding responsibility without giving deference to the investigative report. (p. 30314).
    2. IHE, Complainants, or Respondents may use them in a grievance hearing.
    3. Complainants or Respondents may use them as exhibits if they file an appeal, lawsuits for discrimination, federal civil rights claim, or other litigation.
    4. The IHE may use them as exhibits in its defense of those lawsuits.
    5. If Respondent is an employee, could be used in a personnel action.

  4. IV. Who should do the investigation?

    1. The investigator should be:
      1. Objective and impartial. If there is a relationship or bad blood between the chosen investigator and any party or witness, assign it to another investigator. This is also true if there is a supervisory or evaluative relationship between a party and the investigator.
      2. Familiar with the Title IX regulations and the IHE’s rules, policies, and procedures. 41
      3. Trained in conducting the type of investigation required by the Title IX grievance process.
      4. Able to maintain confidentiality, as appropriate.
      5. Detailed and organized. Able to accurately report the parties’ and witnesses’ statements.

  5. Planning the investigation

    1. Must provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and any other inculpatory and exculpatory evidence. § 106.45(b)(5)(ii).
    2. Find out whether the investigation should follow up on additional allegations or complaints that are discovered in the course of the investigation, or whether the investigation should be confined only to the original issue.
      1. If, in the course of an investigation, the IHE decides to investigate allegations about the complainant or respondent that fall within the scope of the sexual harassment policy and are not included in the notice provided pursuant to §106.45(b)(2)(i)(B), the IHE must provide notice of the additional allegations to the parties whose identities are known. §106.45(b)(2)(B)(ii).
      2. IHE does have the ability to consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. §106.45(b)(4).
    3. Collect the available background information (formal complaint, emails, other documents; applicable IHE policies and procedures; reports of prior complaints or investigations involving the same individuals or similar claims, etc.) and review before beginning to interview witnesses.
    4. Remember that certain information cannot be accessed without consent: An IHE cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the IHE obtains that party’s voluntary, written consent. § 106.45(b)(5)(i).

  6. Conducting the investigation

    1. Deciding whom to interview.
    2. Providing notice to parties of interviews: IHE must provide parties with written notice of investigative interviews with sufficient time for the party to prepare and participate. §106.45(b)(5)(v).
    3. Conducting the interviews.
      1. Types of questions to ask
      2. Demeanor toward interviewees
      3. Alternatives for preserving a record of the interview
      4. Cautions about promising confidentiality
      5. Cautions about promising certain results
      6. Avoiding assumptions
      7. Presuming a conclusion
      8. Failing to show your work
      9. Avoiding personal bias
    4. Representation at the interviews. Parties have the right to be accompanied by an advisor of their choice, but the IHE can place restrictions on the extent to which the advisor can participate, so long as the restrictions apply equally to both parties § 106.45(b)(3)(iv).
    5. Remember that an IHE cannot restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. § 106.45(b)(3)(iii). 43
    6. IHE must provide directly related evidence to the parties prior to completion of investigative report:
      1. Must provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the IHE does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation. § 106.45(b)(5)(vi).
      2. Prior to completion of the investigative report, the IHE must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. Id.
      3. The IHE must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination. Id.

  7. Writing the report

    1. What to put in/leave out of the report: report must fairly summarize the relevant evidence. §106.45(b)(5)(vii).
    2. Cautions about including recommendations or conclusions in the report.
    3. Regulations require: At least 10 days prior to a hearing…the IHE must send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. §106.45(b)(5)(vii).