INVESTIGATION IN A BOX INVESTIGATION in a Box A TOOLKIT FROM THE ASSOCIATION OF TITLE IX ADMINISTRATORS By: Brett A. Sokolow, J.D. Daniel C. Swinton, J.D., Ed.D. Leslee K. Morris, J.D. Marianne E. Price, M.S. Michelle N. Issadore, M.Ed. INVESTIGATION IN A BOX NAVIGATING INVESTIGATION IN A BOX TABLE OF CONTENTS Title IX Overview 1 The Table of Contents A Note on Terminology 2 headers and page numbers Flow of Resolution in 5 Steps 4 serve as internal links; Model Variations — Investigators Making a Determination 4 Click on the TOC item Civil Rights Investigation/Resolution Process in 10 Steps 5 or page number to which Investigation Overview 6 you wish to go to be taken there directly. Preparing for the Investigation 8 Models of Proof 8 Investigator’s Preparation Checklist 11 Additional Planning for the Investigation 12 Reviewing the Policy: Parsing the Policy Elements 16 The Investigation Timeline 20 Investigation Timeline Compliance Example 21 Investigation Timeline Compliance Template 22 Sample Investigation Timeline (Civil Rights Model) 23 Editor: Sample Investigation Timeline (Hearing Panel) 24 Cynthia E. Gomez The Investigation File and Logs 25 Associate Editor: Investigator’s Checklist 25 Samantha Dutill Sample Communications Log 26 This toolkit is intended to provide Communications Log Template 27 assistance in conducting campus civil rights investigations. Organizing the Investigation File 28 It is not given and should not be taken Investigator’s Checklist 28 as legal advice. Initial Contact/Scheduling Witness Interviews 29 Before acting on any Initial Contact/Scheduling Responding Party 30 of the ideas, opinions, Notice of Investigation 31 or suggestions in this toolkit, Notice of Interview and Investigation 32 users should always check first Notice of Allegation 35 with a licensed attorney Notice of Hearing 37 in their own jurisdiction. Persona Non Grata 38 No-Contact Directives 39 ©2015, ATIXA. General Interview Questions 40 All rights reserved. Questioning Skills 42 Sample Questions Exercise 44 www.atixa.org ii INVESTIGATION IN A BOX TABLE OF CONTENTS (CONT.) Questioning Reminders 45 Interviewing the Reporting Party 46 Investigator’s Checklist 46 Potential Interview Considerations and Questions for the Reporting Party 48 Addressing a Reluctant Victim 50 Investigator’s Checklist 50 Template Letter To Reluctant Victim 51 Notifying the Responding Party of the Allegations 53 Investigator’s Checklist 53 Interviewing the Responding Party 54 Investigator’s Checklist 54 Potential Interview Considerations and Questions for the Responding Party 56 Release of Information from an Educational Record Protected Under FERPA 57 Interviewing Witnesses 58 Investigator’s Checklist 58 Sample Witness List 60 Flowchart of Witnesses 61 Witness List Template 62 Witness Rights Model Disclosure Template 63 Follow-Up Email to All Witnesses 64 Interviewee Verification: Email to Parties/Witnesses 65 Interview Question Examples: Initial and Follow-Up Interviews 66 Post-Interview: 5 Documents to Create 71 Other Evidence 72 Writing Investigation Reports, Making Credibility Determinations, Conducting Analysis, and Making Findings 73 Investigator’s Checklist 73 Weighing Evidence and Assessing Credibility 75 iii INVESTIGATION IN A BOX TABLE OF CONTENTS (CONT.) Sample Template for Investigative Reports 80 Sample Template for Investigative Reports II 84 Sample Investigation Report and Findings with Analysis 87 Investigation Report into Allegations of Hazing and Sexual Misconduct with Analysis 97 Drug-Related Assault Investigation 108 Post-Investigation: Outcome Letters 120 Communicating the Final Results to the Parties 120 Sample Outcome Letter for Title IX Resolutions 121 Sample Outcome Letter For Reporting Party 124 Finding and Sanction Letter Notification to Reporting Party 127 Finding and Sanction Letter 128 Notice Of Final Determination — No Appeal 129 Notice Of Outcome — Investigator Renders Finding 130 Notice Of Outcome — Hearing Board Renders Finding 131 Notice Of Appeal 132 Notice Of Final Determination — Post-Appeal 133 Appendix 1 134 Civil Rights Investigation Model Flowchart 135 Sample Pre-Investigation Action Plan 136 General Investigation Tips 140 12 Tips for Investigating Sexual Misconduct Allegations 141 12 Tips for Investigating Stalking Allegations 142 12 Tips for Investigating Intimate Partner Violence/Relationship Violence Allegations 143 Template Questions for a Reporting Party in a Title IX Case 144 Sample Timeline of Incident 147 ATIXA Gender-Based and Sexual Misconduct Model Policy 148 Best-Practice Checklist Related to Sexual Harassment/Violence 173 Appendix 2 177 Case Studies 178 Vignettes 225 iv INVESTIGATION IN A BOX TITLE IX OVERVIEW “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 1972 Implementing Regulations at: 20 U.S.C. § 1681 & 34 C.F.R. Part 106 1 INVESTIGATION IN A BOX A NOTE ON TERMINOLOGY Reporting Party: In this document, the person alleging to have experienced a violation of campus policy is referred to as the reporting party. Responding Party: In this document, the person who is alleged to have violated campus policy is referred to as the responding party. Examples of Conduct Covered by Title IX Sexual Misconduct: Sexual harassment § Hostile environment § Quid pro quo § Retaliatory harassment Non-consensual sexual intercourse Non-consensual sexual contact Sexual exploitation, including: § Voyeurism § Invasion of sexual privacy § Prostitution § Nonconsensual video or audio recording, or broadcasting of sexual activity § Exceeding boundaries of consent, such as allowing friends to hide in the closet to observe sexual activity without the consent of both parties § Knowingly transmitting an STI or STD The following common code violations could also fall under Title IX if severe or pervasive enough to cause a discriminatory effect on the basis of sex and/or gender: • Discrimination • Hazing (a form of sexual harassment) • Stalking (a form of sexual harassment) • Intimate partner/relationship abuse or violence (a form of sexual harassment) • Threatening physical harm • Causing physical harm • Extreme verbal abuse • Hate speech (on a private campus) • Bullying/cyberbullying • Vandalism • Public exposure (could also be viewed as sexual exploitation) • Destruction of/damage to property 2 INVESTIGATION IN A BOX • Intimidation • Conduct that may endanger the health or safety of others Additional employee/faculty policies • Consensual relationships (should be processed as employee misconduct, not as a Title IX matter, unless there is a quid pro quo element) 3 INVESTIGATION IN A BOX FLOW OF RESOLUTION IN 5 STEPS 1. Incident 2. Notice 3. Investigation 4. Finding (hearing, determination, and appeal) 5. Remedies for victim and community (begin upon receipt of notice and are implemented on an ongoing basis, often even after finding) MODEL VARIATIONS — INVESTIGATORS MAKING A DETERMINATION • Investigators gather facts only, making no assessment or analysis. A subsequent finding by the next decision-maker in the chain (e.g., administrator, hearing panel, etc.) is informed by the investigation. • Investigators gather and fact-find to include an assessment of credibility, triangulation of witness/evidence, and corroboration assessment. No determination is made by them. A subsequent determination by the next decision-maker next in the chain is informed by the investigation. • Investigators gather facts, then share informal (unwritten) opinions with the next decision- maker in the chain. • Investigators fact-find, then make a determination as to whether the reporting party violated the code in the form of a recommendation to the next level of decision-maker. • Investigators fact-find, making a determination that is subject to a hearing (does not have to be a hearing panel) at the next level of decision-maker. (In this model, the finding of the investigation is the subject of the hearing or determination.) • Investigators fact-find, then make a determination by a preponderance of the evidence. • Investigators fact-find, then make a determination by a preponderance and recommend sanctions, responsive actions, and/or remedies. • Investigators fact-find, then make a determination by a preponderance and decide sanctions, responsive actions, and/or remedies. 4 INVESTIGATION IN A BOX CIVIL RIGHTS INVESTIGATION/ RESOLUTION PROCESS IN 10 STEPS Most Title IX and other civil rights resolutions will involve the following 10 steps, although the ordering of some steps may occur differently depending on the specifics of the investigation. 1. Allegation/notice/grievance to school 2. Preliminary inquiry 3. Gatekeeper determination (as early as step 3 or as late as 9) 4. Strategize investigation 5. Formal comprehensive investigation 6. Notice of allegations to the responding party (could occur as early as step 3, but likely between 6–8) 7. Witness interviews 8. Evidence gathering 9. Analysis 10. Finding (followed by resolution and remedies, which are afforded throughout and could continue following conclusion of the resolution process) 5 INVESTIGATION IN A BOX INVESTIGATION OVERVIEW The investigation is the process of actively gathering information to determine if a school’s policies have been violated. The investigation involves the active accumulation of information by neutral investigators, who are either fact-gatherers