Three Best Practices Almost All Title IX Investigations Miss
After collectively conducting approximately 100 Title IX investigations in 5 states, Imprint Legal Group lawyers and DEIJ practitioners have seen school administrators and attorneys consistently make these 3 mistakes:
Yes, this is what we look like when we conduct our Title IX investigations.
MISTAKE #1: Not giving consistent updates to the parties.
When a formal Title IX complaint is filed, an investigation can take months. Title IX regulations (34 CFR 106.45(b)(5)(v)-(vii)) require the investigator to give the parties updates at specific times, such as written notice of meetings. But expert-level investigators (like, ahem, Imprint Legal Group’s Title IX investigators) keep the parties updated about the investigation’s progress on a weekly basis, even if there is no substantive update or legally mandated communication to give.
Re-assuring the parties that the process is still unfolding, even if they can’t see all the moving pieces, creates buy-in and comfort in a otherwise confusing and scary situation.
See a sample “Weekly Update” email below:
MISTAKE #2: Skipping obvious points in the investigation report.
Far too often, the Title IX investigator is a school administrator or school’s usual attorney who already knows the situation well. These people tend to skip crucial steps when writing an investigation report simply.
They’ll write: “Mr. Johnson told the Complainant to move to another lunch table.”
But WHO IS MR. JOHNSON?!
Well, everyone in the school district knows that Mr. Johnson is the assistant principal! He has been for twenty years! Duh!
But that’s not obvious to someone else reading this report in two years, who has never met the parties or seen the school environment. The investigative report must “fairly summarizes relevant evidence” (34 CFR 106.45(b)(5)(vii), but the investigator should draft the report for an audience that might include an OCR investigator, a judge, or an attorney in the future.
At a bare minimum, the investigation report should describe:
the parties’ and witnesses’ age, gender identity, and grades (or title for employees)
the school location, including a physical description of the location in which the alleged harassment occurred
all the folks in charge of the school location or incident, their names and titles
MISTAKE #3: Not casting a wide net for evidence.
Title IX regulations require the investigator to conduct “an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence.” 34 CFR 106.45(b)(1)(ii); 34 CFR 106.45(b)(5)(vii).
But in general, we see investigators cast way too narrow of a net.
Investigators need to cast a wide net when looking for potentially relevant evidence
Under 34 CFR 106.30(a), sexual harassment means “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity.”
Looking for evidence of “denying equal access” might include grades declining, attendance and/or participation in school (academics and/or extracurricular activities) declining, or even attendance and/or participation in a specific class declining.
Investigators should engage in a careful examination of a wide variety of potentially relevant school records, including but not limited to the parties’:
historical grades and progress reports
historical attendance reports
IEPs and Section 504 plans, if applicable
sports scores if the relevant individuals are student-athletes
visits to the school nurse or counselor/social worker
historical disciplinary reports, going back to initial enrollment of a student
Want to Know More?
Imprint Legal Group conduct Title IX investigations for K-12 schools, colleges, and universities nationwide. Imprint Legal Group is proud to sponsor the first inaugural Title IX in the 7th Circuit Regional Network for Title IX practitioners in Illinois, Indiana, and Wisconsin.
Imprint Legal Group advises schools on Title IX compliance and gender inclusive school cultures. To discuss any questions about your particular situation or training opportunities, contact: hello@imprintlegalgroup.com.
All posts of Imprint Legal Group and its authors are intended as information, not legal advice. This information is valid as of April 2024.
