As the Title IX World Spins: Best Practices for Investigations

There is little certainty in Title IX these days, given that approximately half of the states are still abiding by the 2020 regulations and the other half by the 2024 regulations. Over 700 institutions of higher education remain affected by this split due to the U.S. District Court for the District of Kansas granting an injunction to Moms for Liberty, Young America’s Foundation and Female Athletes United blocking the enforcement of the 2024 Title IX regulations in any school attended by the children of the interest groups’ members. Given all of this uncertainty, what remains constant?

Understand the Policy

Everyone involved in an investigation, including the Title IX coordinator, investigator and advisers, must familiarize themselves with their institution’s Title IX policy and procedures. This includes understanding the timeframe for the investigation and calendaring the deadline by which the investigation must be complete. Title IX Coordinators should inform the investigator when they expect to receive the final investigative report. No one should be surprised by a deadline. All involved must also understand the relevant definitions and violations, as well as the applicable standard of proof.

Provide Clear and Accurate Notice

The parties involved in the investigation must receive clear and accurate written notice of the allegations. The notice must state the specific policy violations being investigated, the date and location of the incident(s), the parties’ identities and the details. An accurate notice is key for the parties and the investigator to understand what is being investigated. The notice must also state that the respondent is presumed innocent of the allegations until a finding of responsibility is made at the conclusion of the investigation. It should also include the standard of evidence and the next steps in the process. If new charges or policy violations arise during the investigation, the Title IX coordinator must send an updated notice to all parties.

The Title IX coordinator must describe what supportive measures are and offer these to the parties. Sometimes, policies set forth specific supportive measures available at that institution. During initial meetings with the parties, the Title IX coordinator can provide examples of supportive measures to be offered to the parties. For example, no contact orders, counseling services, changes in housing, class and parking and police escort services. The Title IX coordinator should also regularly check in with the parties to ensure they know and receive the necessary support, as needs can change.

Maintain Impartiality

All involved from the institution of higher education must remain impartial throughout the investigation. This includes using neutral language and avoiding terms like “victim” or “perpetrator.” Both parties—the complainant and the respondent—should be treated with respect and made to feel welcome and assisted throughout the process.

Develop an Investigation Plan

Investigators should develop a plan by identifying the relevant oral and written evidence needed. They must identify individuals with pertinent information, consider the order of interviews and prepare interview questions. It is crucial to prioritize interviews with individuals who have direct knowledge of the alleged incident, as parties sometimes identify multiple witnesses with relevant knowledge of the same facts. Investigators should also ask the parties why they are naming each person and their relevancy. This will assist in conducting a more efficient investigation. Re-interviewing parties and witnesses is sometimes necessary.

Conduct Effective Interviews

When conducting interviews, investigators should be prepared with relevant documents and questions, remain attentive to the interviewee’s responses and maintain a neutral demeanor. It is important to define terms used in the investigation to ensure everyone’s understanding of the terminology. Inform parties and witnesses about the school’s amnesty policy, if available. This will assist in obtaining more honest testimony.

Gather All Available Evidence

In addition to oral testimony through witnesses, the investigators must also determine the world of relevant written evidence, including social media posts, texts, emails, transcripts, academic or housing records and security footage. It is important to request video footage as soon as possible, as some systems only store footage for a limited time.

Maintain Communication With the Title IX Coordinator

Investigators should keep the Title IX coordinator updated on the progress of the investigation and discuss any necessary timeframe extensions. Investigators should also inform the Title IX coordinator of any additional charges that require the need to issue an updated notice.

Fairly Summarize the Relevant Evidence

Investigators are responsible for drafting a comprehensive investigation report that fairly summarizes the relevant evidence, including stating the undisputed facts as well as resolving the disputed facts. They should use their institution’s template, if available—or create one if it does not exist yet—so there will be uniformity in the institution’s reports. The language of a policy (and whether the 2020 or 2024 regulations are in effect) will dictate if the report determines responsibility or will leave that for a decision-maker to decide.

Finalize the Report

After providing the draft report to the parties and their advisers for review and comment, the investigator should incorporate the feedback and finalize the report.

Maintain Ethics Throughout the Investigation

The investigator must maintain an ethical investigation and not allow anyone at the university, including the Title IX coordinator and the office of general counsel, to influence the outcome of the investigation.

By following these best practices, investigators can ensure that Title IX investigations are conducted fairly, thoroughly, and in compliance with the school’s policy and whatever regulation is in effect at that school, be it the 2020 or 2024 regulations.