For students, sexual harassment impedes access to education and the opportunity to experience and participate fully in campus life. For staff and faculty, it contributes to unsafe working conditions, negatively affecting the ability to have a fulfilling work life.
But the negative effects extend beyond the direct victims. Schools that investigate incidents of sexual harassment and assault poorly (or worse, fail to investigate them altogether) drive away talented staff and students, affecting the school’s reputation and finances.
Colleges and universities must have robust processes to conduct better sexual harassment investigations. This guide walks through the stages of a thorough higher ed investigation—from the initial complaint to the finishing follow-up steps.
Universities and colleges seeking to conduct better investigations benefit from a campus-wide case management solution. This eBook explains how.
Receiving a Complaint
Before a school can conduct better sexual misconduct investigations, they need to provide safe ways for victims or witnesses to come forward. The investigation process can only begin if there’s a complaint.
It should be straightforward for potential complainants to look up what conduct is prohibited, what incidents merit an investigation and how to report a complaint. Experts and policy-makers recommend that universities and colleges create multiple avenues to file a complaint.
Provide a website form. Offer a phone hotline. Hire a dedicated Title IX Coordinator. Build a team of volunteers (professors, students and non-faculty staff) who can listen to victims and refer them to the right person. Make information and resources available.
During the initial stages of an investigation, the Title IX Coordinator assigns an investigator to meet with the complainant and issue a written notice concerning the investigation.
It’s important that both the Title IX Coordinator and the chosen investigator are knowledgeable about the unique laws that govern sexual harassment investigations on campus. These types of investigations differ greatly from the average workplace investigation.
Title IX of the Education Amendments Act of 1972
All staff and students are protected from discrimination because of Title IX of the Education Amendments Act of 1972. To ensure these protections, schools:
- Must have a policy in place prohibiting sex discrimination
- Must have a grievance procedure that provides a prompt and fair resolution
- Must take steps to stop the harassment when a report is received
- Should have a Title IX Coordinator to maintain compliance
The Clery Act
With regards to data reporting, the Jeanne Clery Disclosure of Campus Security Policy and Crime Statistics Act (known simply as the Clery Act) governs the disclosure of information about crime on campus.
Crime is not limited to sexual harassment and assault, it also includes robbery, burglary, domestic violence, stalking, aggravated assault and more.
Under the Clery Act, colleges and universities are required to:
- Publish an Annual Security Report
- Disclose crime statistics for campus incidents
- Issue timely warnings about Clery Act crimes
- Devise an emergency response and notification strategy
Higher ed institutions may be fined up to $35,000 per violation of the Clery Act.
Other Laws Governing Sexual Harassment Investigations on Campus
Universities and colleges must also protect victims and conduct investigations in accordance with:
- Title II of the Americans with Disabilities Act (ADA)
- Title VI of the Civil Rights Act
- Campus Sexual Violence Elimination (SaVE) Act
- Campus Accountability and Safety Act
Designating an Investigator
Upon receiving a report of sexual harassment on campus, the first step of a Title IX Coordinator is to assign an investigator to the case.
The coordinator will choose at least one investigator to gather and analyze the facts of the case and ultimately decide whether or not a policy violation occurred. The chosen investigator(s) can be internal or external, as long as they are fair and impartial.
Not sure if you’re picking the right person to conduct the investigation? Here are some tips.
Initial Meeting & Interim Measures
Once assigned to the case, the first step of an investigator is to arrange an initial meeting with the complainant to briefly discuss the allegations, as well as the need for any interim measures.
If the investigator finds that the reported conduct poses a threat and the complainant is at risk, they must take immediate steps to ensure their safety. Schools must provide accommodations and interim measures for victims of sexual harassment and violence.
At a minimum, the investigator will enforce a no-contact directive for the entire investigation. They may also request escort services to accompany the complainant around campus or modify course schedules. In extreme situations, the investigator may recommend that the perpetrator is suspended from school or work until the investigation is complete.
During the discussion, the investigator should inform the complainant of their right to speak with the local police. They should also take time to mention victim support services such as on-campus counseling and peer support programs.
The investigator will prepare an official notice to the complainant and perpetrator describing the allegations, potential violations of school policy and the investigation process.
The written notice neither confirms nor denies the reported conduct. It simply informs both parties of the existing allegations and their rights to:
- A fast and fair investigation
- Ask questions and receive information about the investigation
- Provide witness names and evidence
- Be informed of campus resources
- Have an adviser present at any meeting
In this case, an adviser may be present at all meetings and provide consultation but may not actively participate or speak on anyone’s behalf.
Retractions & Informal Resolutions
Depending on the severity and nature of the reported conduct, the complainant may have the option to retract their complaint.
On occasion, after discussing the investigation process and potential outcomes, a complainant may wish to retract their report. If so, the investigator will weigh the request against the legal obligations of the school to reduce harm and decide whether or not this is permitted.
Another option, again depending on the severity and nature of the reported conduct, is to seek out an informal resolution. Instead of a formal investigation, the complainant, the perpetrator and the investigator will use an informal conflict resolution strategy. If you’re not familiar with informal resolutions, here’s a cheat sheet explaining the most effective strategies.
Investigating Sexual Harassment on Campus
The investigation phase consists of conducting interviews with relevant parties, collecting and examining evidence, analyzing the credibility of interviewees, writing the investigation report and, at times, determining sanctions.
The investigator must meet separately with the victim, perpetrator and any witnesses named by either party. The goal of each interview is to gather necessary and relevant details about the sequence of events.
When interviewing about sexual harassment, the investigator should not question either party about their sexual history unless relevant. The investigator should also avoid presumptuous questioning and victim-blaming.
Incidents of sexual harassment or violence very rarely have a first-hand witness. Perpetrators of sexual misconduct know the behavior is wrong and will often wait until they’re behind closed doors to commit an offense. It’s up to the sexual misconduct investigator to think of unique ways to find corroborations or contradictions.
Collecting evidence is a large part of investigating sexual harassment and assault in higher ed. Common pieces of evidence include statements, medical documents, police reports, GPS data and social media activity.
Some victims will have reached out to friends or trusted relatives to discuss the inappropriate conduct. As an investigator, it’s important to ask these questions to remind the complainant of conversations they’ve had that could serve as corroborating evidence.
Every piece of evidence should be collected, documented and stored in a safe, organized place. If any evidence is lost, mishandled or damaged, it might be deemed unusable. If you’re working with limited evidence, this is critical.
As an investigator, it’s important to consider the credibility of your interviewees.
First, be able to recognize the signs of someone who may be lying (if you don’t know them, here’s a guide).
Second, make sure you have context. Would any of the interviewees have a reason to lie? Do they have a history of lying?
Third, look at the pieces of evidence and determine if any of it corroborates or contradicts what was said.
Meeting the “Preponderance of Evidence” Standard
A preponderance of evidence is the standard required in most civil cases. Also called a balance of probabilities, the legal standard is met if the allegations are more likely to be true than not true. This standard of evidence falls in the middle, requiring more proof than “probable cause” and less proof than “beyond a reasonable doubt”.
Currently, the U.S. Department of Education is proposing to change the required standard of evidence to be “clear and convincing” (but more on this later).
Writing the Report
An investigation report will typically include sections regarding:
- Executive summary
- Preliminary case information
- Summary of allegations
- Detailed case notes
- Description of interviews
- Analysis of credibility
- Summary of evidence
Save time by using an investigation report template made specifically for higher ed schools, like this one.
It is good practice to allow both parties an opportunity to review the report and make notes about its content. Based on the comments made, the investigator can decide if an additional inquiry is required.
Concluding the Investigation
Some schools choose to have a Determination Panel (DP) determine violations and sanctions. In these situations, the DP will review the final report and either accept it or request further details.
Either way, the DP is ultimately responsible for reaching a determination of responsibility. The DP must provide a written notice that summarizes the allegations and the conclusion.
In other schools, the conclusion and determining of discipline is the responsibility of the Dean of Students (if the accused is a student) or the Dean of the College (if the accused is a faculty or non-faculty staff member).
When determining sanctions, there are several factors to keep in mind. Consider the nature and circumstances of the incident. Look at the impact that the incident has had not only on the complainant but on the entire community. Has something similar happened before? What were the sanctions imposed then?
Sanctions for students include:
- Restriction from extra-curricular activities
- Restriction from housing
- Restriction from employment
- Community service
Sanctions for teaching faculty include:
- Community service
- Non-renewal of contract
Additional remedies include:
- Extend or make permanent interim measures
- Broader remedial action such as increased monitoring
- Targeted education and prevention efforts
- Review of current policies and procedures
Investigation Follow-Up Steps
An investigator should notify the parties involved about the conclusion of the investigation and inform them of the appeal process.
Notify anyone with a legitimate interest in the incident of the outcome. For example, if there is a sexual harassment investigation into a campus doctor, their other patients will have a genuine interest in the outcome of the investigation and should be kept in the loop.
Proposed Changes to the Law
The U.S. Department of Education has proposed a number of changes to current regulations.
The new regime significantly narrows the definition of sexual harassment. For conduct to be considered sexual harassment, their behavior would have to be so objectively severe, pervasive and offensive that it “effectively denies a person equal access to the recipient’s education program or activity”.
Under the new regime, a university or college can only begin an investigation if the complaint is:
- Filed with a designated official such as a Title IX Coordinator or Title IX Office.
This significantly narrows the circumstances under which an investigation can begin.
Schools will not be required to investigate incidents that occur off-campus. It’s unclear whether schools could, if they chose, investigate incidents off campus or if they’re legally not allowed to.
One of the more controversial changes has to do with victim questioning. Under the new law, the accused is allowed to choose a third-party person, such as an attorney or advisor, to cross-examine the victim.
There may be a number of changes about how to conclude an investigation. As stated earlier, a preponderance of the evidence is the legal standard currently for determining the outcome of an investigation.
Instead, the Department of Education investigators would require “clear and convincing evidence” that the incident occurred. In other words, the evidence must be substantially more probable to be true than not.
Advantages and Disadvantages of the Changes
The proposal has received both criticism and praise.
Advocates for the proposed changes argue that the accused are finally receiving the rights to which they’re entitled. Those in favor believe that this new regime will provide justice to what has been an unfair process for several years.
Advocates against the proposed changes argue that this is a large step backward just as we are beginning to acknowledge the sexual misconduct problem on campus. They believe schools will become more dangerous and survivors will be fearful to report their experiences.
Whether or not these legal changes come to fruition, it’s important for universities and colleges to develop precise, clear expectations for employee and student behavior. Equally important, higher ed institutions should design their own campus-wide procedures for sexual misconduct investigations.