In 1971, only eight per cent of high school athletes were female. Four decades later, females account for 41 per cent, almost half, of high school athletes. Studies have repeatedly proven that Title IX has improved equality in sports, education and employment opportunities.
Title IX, which applies to all federally funded educational institutions, prohibits sexual discrimination, harassment and assault, domestic violence and stalking. Every institution experiences Title IX violations, but it’s the response and resolution that says the most about the school’s culture and leaders.
To ensure a just environment, and to see the endless benefits that come from one, it’s crucial to conduct Title IX investigations appropriately. This article breaks down each phase of a Title IX investigation, from the initial complaint to the appeal process. Continue reading to learn how to conduct an effective and compliant Title IX investigation.
When you mess up a Title IX investigation, your federal funding is in jeopardy. Mitigate that risk with this downloadable Title IX Investigation Checklist.
All federally funded universities and colleges are responsible for complying with Title IX. One stipulation of the law is that all higher ed schools must investigate any report of a gender-based incident.
A Title IX investigation examines allegations of sexual discrimination, harassment and assault, domestic violence, stalking or any other gender-based harm listed in the school’s anti-discrimination policy.
Because it examines policy violations, the investigation must occur independently of a legal investigation. It’s the school’s job to determine whether the incident violated school policy, whereas law enforcement’s job is to determine whether the incident violated the law.
The issue with higher ed’s administrative investigations is a lack of due process. Without a formal process, it’s tough for school officials to conduct a prompt, fair investigation that respects the rights of all parties, as required by Title IX.
Failing to respond to and fix a discriminatory environment may mean a loss of federal funding. To mitigate the risk, every higher ed institution needs a formal, thorough process for receiving, investigating and resolving Title IX violations.
Assign a Title IX Coordinator
The threat of losing funding has led to the creation of a Title IX specialist, titled the Title IX coordinator or compliance officer.
In addition to developing an investigation process, bring on at least one Title IX coordinator. For larger schools, having more than one specialist working in this area is ideal.
This person’s job is to ensure compliance with Title IX and related laws. They are the main point of contact for those with questions about Title IX. When necessary, the coordinator must work closely with law enforcement.
The coordinator may be tasked with monitoring enrollment and employment to identify disproportion. This person will also be responsible for monitoring investigations to prevent incidents from becoming a systemic problem.
The Title IX coordinator must know and understand school policies and participate in drafting, revising and implementing new ones to ensure they comply. The coordinator’s first task might be to draft a notice of non-discrimination.
Distribute a Notice of Discrimination
Title IX requires all federally funded schools to draft, publish and widely distribute a notice of non-discrimination.
The notice should explicitly state the school’s position on gender-based discrimination in all school activities, including education programs, employment opportunities and athletics. The notice must also include contact information for the school’s Title IX coordinator(s).
The statement must be available and accessible for students, parents, employees, unions and any other involved parties. Most schools include the notice in a handbook, code of conduct or annual security report, and include a downloadable copy on the school’s website.
Establish and Announce Reporting Tools
Schools are legally required to inform students and staff of their right, as a victim, witness or confidante, to file a Title IX violation.
Learn why schools across the country use case management software to conduct better Title IX investigations here.
Inform the school community of the reporting mechanisms offered internally and how to file a complaint with law enforcement. It’s in the school’s best interest to offer multiple reporting mechanisms including a hotline, webform or in-person meeting.
Title IX investigations are carried out similarly to any other. There is an informal process, where involved parties resolve their issues informally through mediation. This informal process is only appropriate in certain cases, but it’s alluring because it avoids the investigation, saving time and resources.
The formal investigation process is broken down into several phases:
- Notify the involved parties
- Gather the facts
- Review and analyze the information
- Determine whether a violation has occurred
- Write the report
- Notify the involved parties of the outcome
Each phase requires time and effort, but the Title IX investigator must be prompt in initiating the investigation. Unfortunately, the law does not specifically define the term “prompt”. The first step in initiating the investigation is notifying the involved parties.
Notify Involved Parties
The Title IX Office, consisting of the coordinator and other personnel, must notify the involved parties that a complaint exists and an investigation will begin.
The notice should include information about the investigation process, the allegations at hand, the complainant’s and respondent’s rights, the policy that alleged behavior violates and contact information for the investigator.
This notice is also a good time to schedule the intake meeting, either in person or via phone, to discuss basic information about the allegations and determine the next steps of the investigation.
The next step of the Title IX investigation process, if everyone has decided to proceed with it, is to gather information related to the allegations. Gather documents, files, audio recordings and video recordings, social media posts, cell phone records and more.
Interview the complainant and respondent. Ask them to explain their side of the story and their relationship with the other party. Ask for the names of potential witnesses or any other details that may be pertinent to the investigation.
Review and Analyze Information
Once you’ve collected as much information as possible, provide both the complainant and the respondent with an opportunity to review the information collected. A review may help trigger their memory, or they may want to address a discrepancy.
Then, the investigator should review the information and see if there is enough evidence to determine whether a violation occurred. Review, weigh, analyze and compare the information.
Determine a Violation
To determine that a violation has occurred, the information must meet the preponderance of evidence standard of proof. This level of proof means that the information gathered concludes that the allegations are more likely to have happened than not.
The standard requires more convincing proof than “probable cause” and less than “beyond a reasonable doubt”.
Write a Report and Notify Parties of Outcome
After making a determination, put together the final investigation report. The report must contain the initial allegations, the policy violated, the parties involved, the evidence gathered, a summary of the interviews and any other relevant information.
Send a shorter summary of the outcome to both parties. This notice should include information about the outcome, reasons supporting the determination and, depending on the conclusion, next steps in the Title IX process.
An investigation report template can speed this phase up. Download ours here.
After notifying the complainant and respondent of the outcome, either or both parties may appeal the decision and request an administrative review.
In this situation, a higher level of management will review the investigation process, the information gathered and the conclusion. This person will then issue a written decision that explains the outcome of the review.
If there is no appeal, and the allegations are true, the investigator will recommend a disciplinary sanction or forward the report along to the person in charge of discipline. Under the Clery Act, the Title IX office must advise victims of counseling resources, support services and the option to pass the incident on to local law enforcement.
Complainant and Respondent Rights
Title IX provides both the accuser and the accused with equal rights. Higher ed institutions must uphold these rights to ensure a prompt, fair and impartial investigation. The University of Texas, for example, awards both complainants and respondents the right to:
- a prompt, fair and impartial investigation
- receive information and ask questions about Title IX’s formal and informal processes
- have an advisor present during all meetings
- an equal chance to participate, including the opportunity to identify witnesses and relevant evidence
- file a complaint with local or campus law enforcement
- learn of and access to support services
In addition to assigning a coordinator, higher ed institutions must adequately train employees responsible for receiving and addressing Title IX complaints.
Both the Clery Act and Title IX Guidance have provisions requiring that any employee with the authority to address sexual violence knows how to do so appropriately. For example, make sure school counselors or therapists know the extent to which they must keep an incident confidential.