What to Expect: The Process of a Title IX Investigation

Recent Federal regulations were enacted in 2020 which provide certain requirements which all schools must follow in their Title IX grievance process.  While some aspects of particular school’s Title IX Policy will vary, these regulations provide clear and consistent framework that all schools who receive Federal financial assistance must follow.  Most importantly these regulations require Due Process in the Title IX grievance process.  The college or university is required to conduct the Title IX investigation in a timely manner and must reflect a good faith effort to conduct a fair and impartial investigation.

Below Is an Overview of the Four Primary Steps in a Title Ix Investigation.

Step 1: Notification

Once a Title IX complaint has been filed, you have the right to be notified promptly of any accusations.  Under Federal Title IX regulations notice of the allegations of sexual harassment, must include sufficient details of the conduct allegedly involved.  At a minimum this includes the identities of the parties involved in the incident, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident.

It is very important not to wait. If you think there may be a Title IX complaint filed against you, contact us. If you hear a rumor or chatter that someone is making these allegations against you even before receiving a formal complaint, it is important to take action in order to protect yourself.

You will also be notified that an investigation has begun and usually, you will be supplied with the name of the investigator. You will be advised that an investigator will be contacting you and that you are required to cooperate with the Title IX investigation. In many cases you will be given a limited amount of time to prepare a written response to the allegations. However, in most cases, you will not be given the chance to see the accuser’s full statement prior to your interview with the investigator.

Interim Measures included in the Official Title IX Investigation Notification

Interim measures or demands are generally required under Title IX. The main purpose is to ensure that the accuser, witnesses and all other parties involved in the Title IX investigation continue to feel safe and secure until a final determination can be made. While interim measures can include informing the parties of available campus resources, such as counseling, advocacy groups, campus and local police resources, the primary focus is to restrict contact between the parties.

Common Interim Measures Imposed on an Accused Student Can Include:

• Issuance of a “No Contact” order with certain parties or witnesses
• Change in housing, including the accused being ordered to different on-campus housing or off-campus housing
• Restricted access to activities and locations (i.e., cannot attend same class or events with certain parties)
• Removal from campus until investigation is complete (temporary suspension from all school activities)
• Protection for the accuser

These interim measures should be as least restrictive as possible to ensure the safety of those involved in the Title IX investigation. It is important to note, you must comply with interim measures.

We will work with you to make sure you understand those measures and ensure compliance that will have the least detrimental effect on your education and your case.

Taking Quick Action is Critical

While the actual timeline will vary depending on your school’s Title IX policy, you usually only have about five days to write a response to the allegations. It is important to note that the time periods for a response set out in the policy will rarely be amended or extended to accommodate you, your advisor or attorney’s schedule. It is critically important to take immediate action and is strongly recommended that you do not try to defend yourself in a Title IX investigation process.

Now is the time to secure a proven, experienced criminal defense attorney to be in your court. Contact Michael Contant at Contant Law immediately. Do not proceed in the process described below on your own. Because of the demands and nuances of the Title IX process, it is vital to contact Contant Law for advice and guidance. What you might consider a harmless move, could jeopardize your case and your future.

Being accused of a Title IX violation is upsetting, confusing and in some cases, comes as a complete surprise. The sooner you secure expertise to defend your rights, the better.

Step 2: Secure Contant Law as your Advisor and Start Planning your Defense

In our first meeting, we will have you describe in great detail (a) your history with the accuser; (b) what you remember happening on the date or dates in question; and (c) why you think this accusation has been filed against you. You will need to discuss every detail of the alleged incident, so you will need to come ready to answer many questions. This is your defense, so being prepared and organized is in your best interest. We will review your college or institution’s Title IX policy. We’ll walk you through the Title IX investigation process and help you interpret just what is required by your school to help you better understand key considerations in defending a Title IX accusation.

In this meeting, we will advise you concerning time sensitive matters and reiterate how you must adhere to the demands in the notification. We will also explain and advise you regarding any actions that could be perceived as retaliation.

Retaliation

We will advise you on what you can and cannot do on your own behalf. Actions such as contacting your accuser or witnesses when done by you may be construed by the college as retaliation and could subject you to further discipline.

From this point forward, our focus will be on preparing for the investigation and hearing. We will immediately begin our own investigation in order to find and preserve evidence that can be used on your behalf. It is our practice to conduct our own investigation, which may include a deep dive into the social media accounts of all parties involved, interviewing potential witnesses, obtaining relevant text messages, emails, photos, videos and visiting the scene of the incident, if appropriate. The sooner you gather and preserve any evidence, such as photos, text messages, emails, social media posts, names of witnesses, etc. the better.

We will assist you through every step in the process including helping you craft any appropriate written response and oral statements. As your attorney, we will help to investigate the allegations and seek to understand prejudicial evidence.

Planning Your Defense

You will most likely be involved in several meetings throughout the process to prepare for your defense. We will go through every detail of the alleged incident, starting with a determination of whether you were even at the location at the time the accuser claims. Most sexual assault and sexual harassment cases require an almost uncomfortable level of detail to adequately defend so you will be asked to remember, as best you can, every aspect of an alleged incident.

We will continue to meet to gather as much information as possible to help you prepare for your defense. In certain cases, we may also have you submit to a polygraph, which can sometimes be used in a Title IX proceeding.

We will prepare you for both the investigation process as well as the hearing process. That includes both written and oral preparation.

Step 3: Investigation is Conducted

Under Title IX, the investigation is required to be fair and equitable. Any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms. Once an accused is notified, an investigation will soon after commencing by an investigator who is employed by or retained by the college or university.

Investigators and other Title IX personnel must be trained on impartiality.  New Title IX regulations require all Title IX personnel to be trained on impartiality.  Further, these training materials must be available to the parties to review. Having such materials will aid the accused in ensuring that the investigation is conducted in a fair manner, consistent with the required training.

Trauma Informed Investigation:

Title IX requires that an investigator be “trauma informed.” This requires investigators to be trained in the neurobiology of trauma and how it may affect the accuser’s actions during and after the alleged assault. Some of the so-called neurobiological responses to trauma alleged can include:

• Fight, flee or freeze (tonic immobility, collapsed immobility)
• Having a fragmented (non-linear or incomplete) memory of the incident
• Have a specific memory of certain details
• Victim makes no immediate report and resumes apparent functionality
• Victim reveals almost no emotion about the incident (i.e., “may not seem like a victim.”)
• Victim may be hostile or uncooperative

Many of the neurobiological responses which the investigator’s trauma informed training makes them identify as relating to a trauma, are also factors which are normally used to assess a witness’ credibility. Generally, the same responses are often used to detract from a witness’ credibility. However, the trauma informed investigator will use them as a means of corroborating the accuser’s version of the events.

For instance, the trauma informed investigator is trained to find that an alleged victim whose memory of the events is spotty; delayed several weeks to report the incident; shows no or little emotion in speaking about the incident; and is uncooperative likely suffered a trauma and that this somehow corroborates their story. What causes concern is that this same investigator may find that when the accused or another witness exhibits such traits, that he is being evasive, lying or simply not credible. In a nutshell, having a so-called trauma informed investigator flies in the face of the other mandates under Title IX, which is that the process is fair and equitable.

What the Investigator Does:

The investigator may obtain and study police records, social media posts, campus security reports, videos, text messages and emails. They will also want to speak with anyone that might be a witness. Of course, they will also speak with you and the accuser. It is important to note that just because you or the accuser suggest a witness to be interviewed, that investigator does not have to speak with that person. The investigator is given wide discretion on how the investigation is conducted. Some investigators will record interviews, while others prefer not to record anything. There is no strict policy as to how each investigation must be conducted, so long as it is fair and equitable to each party.

It is extremely important that you be thoroughly prepared for your interview with the investigator. The more prepared you are to defend yourself, the better. Attorney Contant and his team will advise you and help you to prepare every step of the way. Michael Contant and his team treat every case like a criminal investigation, even though you are not afforded all the rights given in a criminal proceeding. You must be prepared not only for any possible questions that may be asked, but the potential ramifications of the statements you make and in what ways they may be used against you in both the Title IX investigation and any possible criminal investigation.

This is your opportunity to state your case in a well thought out manner. Depending on the way in which the inquiry is conducted, investigators can accept either written statements, oral statements or both. This is why it is imperative that you work with your attorney to be as organized and ready as you possibly can. Michael Contant will be by your side every step of the way, but you will need to speak for yourself.

There is no fixed time limit for how long an investigation should take. The only requirement is that the school, college or university, conduct the Title IX investigation in a reasonably prompt and timely manner and must reflect a good faith effort to conduct a fair and impartial investigation.

Title IX Case File

Once the investigator has completed their investigation, they must make their entire case file available to both the accused and accuser.  This case file should include all information / evidence obtained by the investigator.  Items, such as copies of the complaint documents; statements of all parties and witnesses; and copies of all documents reviewed by the investigator.  The case file will be sent to both you and your advisor.  All parties will then have at least ten (10) days to file a written response to the case file.  This response may suggest that additional witnesses be interviewed, other leads be followed or comment on the evidence collected to date.  The investigator is supposed to consider this response in drafting their investigation report.

Title IX Investigation Report

Once the official investigation has been conducted, the investigator will draft a Title IX investigation report concerning the alleged violation. Just like the investigation process, the report is supposed to be fair and unbiased.  The purpose of the report is to fairly summarize the relevant evidence.

The report should outline a number of details collected during the progression of the investigation. Of course, it will outline the accusations, but it should then go into more detail from a number of sources that lays out relevant evidence.

A Title IX investigation report can include any number and variations of evidence collected during the process. First, it should outline the accusations. From there, the report can contain everything from police reports, security recordings and building access logs, and other official documentation from local law enforcement and/or campus security.

Other evidence collected can be everything from electronic evidence such as text messages, mobile phone photos, social media captures, voice mails and any other electronic data available to the investigator.

A Title IX report should detail the investigator’s notes, all interviews, both written and taped interviews, written statements from both parties and any other documents related to the accusation and the findings of the investigation. If you are an employee of an institution, portions of your personnel file may end up in the report.

Report Available for Review by Accused and Accuser

After the report is written, it must be sent to all parties and their advisors at least ten (10) days prior to any hearing.  You will have the ability to provide a written response to the report, if you like prior to the hearing.  Such a response may detail any inaccuracies of the report and argue for it to be amended.

The final report and case file is submitted to the Title IX coordinator and hearing panel.

Step 4: Title IX Hearing

Under the new Title IX Federal regulations, all colleges and universities must have a live hearing, with decision-maker(s) (i.e., hearing panel, judge, etc.) who cannot be either the school’s investigator or Title IX Coordinator.  Effectively eliminating the “judge, jury and executioner” days of the single investigator model.  Some of the more important requirements of the hearing include:

• Give all parties an equal opportunity to present both fact and expert witnesses, as well as any other inculpatory or exculpatory evidence;
• Live oral cross-examination, including relevant follow-up questions to be asked by the party’s advisor to any other party or witness;
• If a party or witness does not submit to cross examination, the decision maker(s) cannot rely on any statement of that person in reaching a determination regarding responsibility.
• Hearings can be done in person or virtually (such as over Zoom, Google Meet or other virtual platforms)
• School must create a record of the live hearing, which can be either audio, audiovisual or a transcript.
• Following the hearing the decision-maker(s) must issue a written decision, which must include:
• Finding as to whether respondent is responsible for the charges;
• Findings of fact and conclusions about whether the conduct occurred;
• Rationale relating to each allegation;
• Any disciplinary sanctions to be imposed; and
• Any whether any remedies will be provided to the complainant.

Title IX Investigation – Possible Punishments

If you are found to have violated the school’s Title IX sexual misconduct policy, you will receive some type of punishment. This punishment is determined by your school’s Title IX panel who heard your case.  The panel has wide discretion on what type of punishment to impose.

Typical punishments may include:

• Expulsion (or termination if an employee)
• Short- or long-term suspension
• Probation
• Restrictions from participating in certain school events or functions

Punishment will vary depending on the specific circumstances of each case. For instance, a person found responsible for a violent sexual assault is likely to have a much greater punishment than someone who made a lewd comment.

Step 5: Appeal

Either party may appeal the outcome of the hearing or dismissal of the case prior to hearing.  However, the appeal is not meant to be a rehearing of the factual disputes in the Title IX hearing.  The appeal is limited to:

• Procedural irregularity that affected the outcome of the matter;
• New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and / or
• Conflict of interest or bias for or against a party by the Title IX Coordinator, investigator or decision makers that affected the outcome of the matter.

All parties must be notified when an appeal is filed and be given a copy of documents submitted for the appeal.  The party opposing the appeal will be given a reasonable opportunity to submit a written response to the appeal.

The decision maker(s) for the appeal will not be the same decision maker(s) from the hearing.  A written decision on the appeal will be provided to both parties simultaneously.  The decision must describe the result of the appeal and the rationale / reasons for that result.