CAMPUS TITLE IX INVESTIGATION TRAINING presented by Saundra K. Schuster, J.D. Brett A. Sokolow, J.D....
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Transcript of CAMPUS TITLE IX INVESTIGATION TRAINING presented by Saundra K. Schuster, J.D. Brett A. Sokolow, J.D....
CAMPUS TITLE IX INVESTIGATION TRAINING
presented by Saundra K. Schuster, J.D.
Brett A. Sokolow, J.D.Leslee K. Morris, J.D.Belinda Guthrie, M.A.
www.ncherm.orgwww.atixa.org
MEET YOUR PRESENTERSBrett A. Sokolow, J.D. is a higher education attorney who specializes in high-risk campus health and safety issues. He is recognized as a national leader on campus sexual violence prevention, response and remediation. He is legal counsel to 35 colleges, and is the founder and managing partner of NCHERM and Executive Director of ATIXA.
© 2012 ATIXA all rights reserved 2
Saundra K. “Saunie” Schuster, J.D. is a Partner with NCHERM. She was previously General Counsel for Sinclair College and Senior Assistant Attorney General for the State of Ohio. Prior to practicing law she was Associate Dean of Students at Ohio State University. She is an author, and consultant focusing on higher education legal issues.
© 2012 ATIXA all rights reserved 3
Leslee Morris, J.D. is the Investigator in the Student Conduct Office at the University of Colorado at Boulder. She investigates and adjudicates cases of sexual assault, sexual harassment, and gender violence. She previously worked as an attorney in the Office of University Counsel at the University of Colorado.
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Belinda Guthrie is Associate Dean of the College and Director of Equal Opportunity at Vassar College, and is responsible for overseeing the investigation of complaints of alleged harassment, discrimination, and sexual misconduct. She has over 15 years experience in student and academic affairs, and previously worked at Smith College directing their student disability services.
© 2012 ATIXA all rights reserved 5
Title IX
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“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any educational program or activity receiving federal financial assistance.”
Title IX of the Education Amendments of 1972Implementing Regulations at:
20 U.S.C. § 1681 & 34 C.F.R. Part 106
The IX Commandments
Thorough
Reliable Impartial
Prompt Effective
Equitable
End the Discrimination
Prevent its Recurrence
Remedy the effects upon the victim & community© 2012 ATIXA all rights reserved
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Investigation
Process
Remedies
The Process
Incident Notice to Title IX Officer, Strategy Development
Investigation Informal Resolution, Administrative Resolution
or Formal Resolution? Investigation and Report (and in some
cases…) Hearing
Finding Sanction
Appeal
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Equity By And Through The Process
You will get this right when you can do equity through equity.
Each party’s rights, privileges and opportunities need to be balanced.
Not exact parity, but equitable procedures that reach equitable outcomes that impose equitable remedies.
Equitable = fair under the circumstances What you do for one party, ask whether
you need to do for the other(s)© 2012 ATIXA all rights reserved
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Training Is Critical
In order for investigations of sex discrimination complaints to be thorough and reliable, any individual who conducts them must have relevant and in-depth training and knowledge.
Establish competencies and minimum training schedule Update and refresh
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Training Should Also Include
The institution’s policies and procedures Applicable legal standards and framework Applicable federal and state law and court
decisions Investigative techniques including specifically
interviewing witnesses Cultural sensitivity; diversity competence How to analyze evidence in relation to the
standard How to synthesize evidence, write reports,
make findings © 2012 ATIXA all rights reserved
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Strategy is Key
The investigation team, in consultation with their supervisors, and/or the Title IX Coordinator strategizes the entire investigation. This includes: What Policy(s) elements may have been violated? What are the undisputed facts? Which ones are
significant to the investigation? What are the facts in dispute? Which ones are
significant to the investigation? Who do you need to interview? What should be the order of the interviews
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Other Elements to Consider in Strategy
What are the key issues involved? What additional strategies do you need to
address key issues? What additional documentary evidence
will be important to the investigation? Discuss your Methodology for this case
(what approach will you use?) Timeline (within 30-60 days will vary by
case)
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Team Investigation Approach
Challenges with Single Investigator Model
60 day time limit: Strained resources and ability to conduct investigation(s) efficiently and effectively
Potential conflicts of interest
When Title IX and Title VII collide
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Team Investigation Approach
Advantages of Team Investigation Model
Greater opportunity for strategic investigations Greater opportunity to gather maximum
amount of relevant information to inform finding
Affords opportunity draw from a diverse pool of trained investigators with different skills, knowledge and experience
Investigators learn from taking part in investigations and from each other
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Informal And Formal Resolution Process
OCR endorses and encourages informal resolution, and we believe it is a best practice, as long as it is voluntary
Some minor incidents can be resolved through confrontation and/or intervention
More significant discrimination can also be resolved informally, by a process in which the accused individual accepts responsibility, and/or by some forms of ADR or conflict resolution. Mediation not appropriate for sexual assault
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Gatekeeping
As the investigation unfolds, the investigators should determine if there is reasonable cause to believe that policy has been violated.
If that threshold is reached, the investigators should communicate with the Coordinator to ensure a formal charge ensues.
If investigation cannot produce sufficient evidence of reasonable cause, the investigation should end prior to the issuance of the formal charge, and no hearing should be held.
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Gatekeeping
Whether your goal is equity, due process, essential fairness, equal dignity, or a process infused with the humanity of the participants, it is unfair for an accused individual to be dragged through a process without substantiating evidence.
Significant reputational harm can result from allegations of sexual harassment, etc.
A charge (complaint) must be supported by reasonable cause to permit its full pursuit.
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Demeanor of Investigator
Work to establish a baseline of relaxed conversation
Maintain good eye contact Listen carefully to the answers to your question
Avoid writing while they are talking, if possible Do not be thinking about your next question while
they are talking Ask questions in a straightforward, non-
accusatory manner Nod affirmatively to keep witness talking
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Interview Skills
General Interview Skills: Outline your interview questions but be flexible Plan the order of interviews; may be beneficial
to interview Respondent last Most beneficial to conduct interviews in person Interviews should be conducted in a neutral,
quiet and private setting with a minimal or no likelihood of interruptions
Explain process, your role as a neutral fact finder, and privacy protections and limitations
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Interview Skills
Discuss thoroughness and the need for completeness; make sure parties don't leave facts out because they are afraid of getting into trouble
Create comfort with language and sensitive subjects
Establish rapport before questioning Ascertain who the individual is and their relation
to the other parties in the case Document whether the individual is cooperative
or resistant Be professional: gather the facts, make no
judgments, make no statements about the parties
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General Interview Skills (cont’d)
Pay attention to alcohol / drug consumption and timing of consumption
Be cognizant of the difference between what was “heard” (rumor) and what was “witnessed” (facts)
Ask who else you should talk to and ask for any relevant documentation (i.e. texts, emails)
Let parties know you may need to follow up with them as the investigation progresses
Recommend that the parties and witnesses not discuss the investigation
Discuss non-retaliation Obtain FERPA releases© 2012 ATIXA all rights reserved
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Remember: As an investigator, you have
no “side” other than the integrity of the
process!
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Establish Pre-interview Ground Rules
Can subject record? Who will attend? How will records be kept? Advisors Attorneys Roommates, Parents, etc. FERPA/confidentiality
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Questioning Guidelines
Take the complaint from start to finish through a process of broad to narrow questions and issues that need to be addressed
Engage in a matching process Ask questions about the allegations and the
evidence and the policy elements Focus on areas of conflicting evidence or gaps
of information Drill down on timelines and details Don’t leave a question or gap unanswered
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© 2012 ATIXA all rights reserved
Interviewing Witnesses
It may be helpful to not label the allegations as “sexual misconduct” or “sexual harassment” but to describe it in terms of the behavior.
Ascertain relation to the other parties in the case
Ask questions; address the need for complete truthfulness
Ask for opinions Ask if either party spoke about the incidents
after they happened. Did they see any change in behavior?
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Interviewing Witnesses
Ask if they have been contacted already by one of the parties
Ask if they have made any previous statements, such as to private investigators
Ask if there is anything you should know that has not been covered or if there is anyone else they think that should be contacted
Discuss non-retaliation and give examples of it as some people only see it as threats
Discuss privacy; execute FERPA release Ask all interviewees to contact you if they
remember anything else or want to add to their interview.
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Witness Lists And Flowcharts
Witness lists and flowcharts are important identify the role/involvement of the witness
and his/her relation to other parties specify how the witness was identified
(referred by a party or on your own) keep track of statements / compare
accounts as between witnesses document your outreach attempts quickly locate how to contact a witness
Timeline of incident also very helpful© 2012 ATIXA all rights reserved
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Provide Information to those Interviewed
Each party should receive: a copy of the policies alleged to have been
violated a copy of the procedures that will be used
to resolve the complaint, including the rights that extend to the parties
Consider providing parties with your non-retaliation provision.
Keep a copy of all applicable policies and procedures in the investigation file.
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Analyzing the Information
Examine only actions that have a direct relation to the situation under review
Explore motivation, attitude and behavior of complainant, accused and witnesses
Apply relevant standards: Force, Consent, Incapacity Unwelcomeness; reasonable person;
discriminatory effect Analyze the broadest, most serious
violations first and make a determination of each and every violation alleged
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Making A Finding
Review the policies in play Weigh evidence (relevance & credibility) Determine whether more likely than not
policy (policies) has been violated
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What Kinds Of Notes Should Be Kept?
Assemble an investigative file and keep it in a secure location.
Keep a timeline of the steps in the process, including dates of all meetings and interviews.
Interviews - notes vs. recording Interviews - hand written vs. computer Interviewee verification Records of all contacts including e-mail and
phone calls with all parties© 2012 ATIXA all rights reserved
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Note-taking
Taking notes may slow down the interview in a good way- may help detect deception
Use pre-prepared numbered questions as a framework, but be flexible
Note-taking should occur throughout the entire interview, not just when the accused individual makes a pertinent disclosure or an “incriminating”
Documentation is critical: you are creating the record of the complaint (consider appeals and court challenges)
Remember that a student has the right to inspect their education record under FERPA
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Note-Taking
Notes should be complete and detailed Important for assessing credibility Decision may turn on small details
Where possible, include verbatim statements on critical issues – use their words, not yours
Keep notes on what is told to the complainant, respondent and witnesses
Summarize perceptions of credibility, honesty, etc.
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Note-Taking
“Sole possession” FERPA exception is very limited Date all records and include who was present at
any meetings; number pages Review your notes before the interview concludes Clarify anything you are unclear about Document any refusal to answer, evasion or
refusal to participate Capture key quotes Review and finalize notes immediately upon
completion of interview
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Note-Taking
Make notes as to credibility and reactions/demeanor, generally and to specific questions
Have parties review notes Record any requests or unusual
interaction with interviewee Notes should be free from bias and
subjectivity Identify any delays in the process and
reasons for the delays If it isn’t written down, it didn’t happen
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The Investigation Report
The investigation report is the one comprehensive document summarizing the investigation, including: Results of interviews with parties and witnesses Results of interviews with experts Summary of other information collected, i.e.
information from police reports including pretext calls, medical exams, video surveillance and photographs, copies of text, email and social networking messages, etc.
Assessment of weight, relevance and credibility of information gathered
Assessment of credibility of parties
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The Investigation Report
Helpful to have a “skeleton” outline of what report will include
The report should: Detail the allegations and how they were
brought forward Explain the role of the parties and witnesses,
and any relations between them Summarize information collected Address evidence collected (direct,
circumstantial, documentary, expert)
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© 2012 ATIXA all rights reserved
The Investigation Report
Assess weight, relevance and credibility of information gathered
Assess credibility of parties Explain unsuccessful attempts to collect
information and/or interview witnesses Highlight key factual findings for each
allegation The file should contain all policies and
procedures currently applicable.
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© 2012 ATIXA all rights reserved
The Investigation Report
Question-are prior, similar acts by the respondent relevant? To what?
Measure the information gathered against the policies alleged to have been violated, applying the standard of proof (analysis)
Recommend a finding on whether the policy has been violated, or make the finding, depending on your process
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THANK YOU!
Questions?
[email protected]@atixa.org
[email protected]@gmail.com
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