Checklist for Investigating Title IX Claims - Key Steps In Conducting An Investigation

 

A Title IX investigator must be well-prepared to fulfill her/his responsibilities. The following checklist should assist the investigator in fulfilling these responsibilities.  

  • Complaint investigations should be done both promptly and thoroughly.

The investigator should begin within a very few days after learning of a harassment situation and should finish with as much speed as possible, usually within a few weeks.

  • The investigator should plan all interviews carefully.

Prepare a list of detailed questions designed to gain information that might prove or disprove the complaint. The investigator should never attempt to rely on memory. She/he should avoid wasted time by determining in advance exactly what information is wanted from each person being interviewed. The investigator should be prepared for answers that lead into another angle of inquiry by predicting what the possible answers may be and planning how to pursue those issues.

  • Review the complainant’s statement.

Try to determine the basis for the complaint and gain an understanding of the issues presented. Keep notes regarding questions that arise when reviewing the statement so that they can be pursued during the investigation.

  • The complainant should usually be interviewed first to clarify the details of the complaint.

As a part of the interview, the complainant should be informed about the process that the investigation will follow. This includes the complainant’s legal rights, what the investigator will do, what will happen and when, the content and process of the investigation, and who will determine remedies following the investigation. Additionally, the investigator should ascertain whether the complainant has any immediate needs, such as fear, that might need to be addressed at once.

While maintaining a businesslike manner, the investigator should treat the complainant considerately and respectfully. The complainant should be encouraged to be as specific as possible in clarifying his or her statement including names, dates, frequency, places, and specific behavior (what happened, the complainant’s response, and the outcome) along with the names and location of any witness(es). The investigator should make careful notes during the interview, both of questions that she/he asks, as well as the complainant’s responses. A thorough written version of what is alleged to have happened based on the interview with the complainant, should be prepared, signed by the complainant, and placed in the file. This list of allegations will later form the outline for part of the investigator’s report.

An important part of the investigation is determining the effect of the harassment on the victim. The investigator should document whether the harassment is alleged to have had any negative effect on the complainant’s job or academic performance, or whether the harassment is alleged to have created a hostile climate.

The investigator should identify as specifically as possible the part or parts of the district policy or state/federal law that are alleged to have been violated. All interviews and efforts to obtain evidence should be aimed at proving whether the specified policy or law has been violated.

  • Assemble an investigative file and keep it in a secured location.

The file should be organized so that anyone opening it could determine the main issues involved in the case and the history of the investigation. Even while the investigation is underway, the file should be maintained so that if necessary another person could assist with or even assume responsibility for the investigation. The file can also serve as a memory device, enabling the investigator to ensure that no aspect of the investigation has been overlooked.

The investigator should keep a time line of what happened as part of the process. This helps set the events in the sequence in which they occurred. You can analyze this timeline in terms of what was happening in the workplace at the same time, looking at the big picture for possible motivating factors or triggering events. Testimony of witnesses can be added to the timeline as they are interviewed, adding a rich level of detail about what actually occurred.

  • Define and further plan the investigation.

The plan for the investigation should include the determination of who the alleged harassers were, when and where the incident took place, what was said or done by the parties, whether the incident was isolated or part of a continuing practice, the reaction of the complainant, how the complainant was affected, whether anyone else witnessed the incident, whether the complainant has talked to anyone else about the incident, whether there is any documentation of the incident, and whether the complainant has knowledge of any other target of harassment. 

The investigator should limit the scope of inquiry. Identify and exclude issues which are not disputed and/or have already been investigated. Screen out issues which are not relevant to district policy. Winnow the complaint down to the tightest possible list of issues for investigation.

It is helpful to prepare a step-by-step list of the investigation plan and check off each step as completed. This list should contain the names of all witnesses to be interviewed, as well as a list of all documentary evidence to be collected. Be sure to include everyone who may have information, especially the alleged harasser. Do not make the mistake of stopping the investigation once several witnesses or documents have been located that appear to substantiate or refute the allegations. This is especially true for the alleged harasser, as not interviewing this person could later be regarded as a weak point in the investigation. The list of witnesses may be supplemented during the course of the investigation as various interviews provide leads to other useful information or persons to interview. Similarly, the list of documentary evidence may grow as witnesses are interviewed.

  • Gather supporting documents and evidence.

It is prudent to gather these documents quickly before there is an opportunity for them to be removed from the files. The investigator should consider making unannounced visits to offices or other sites to obtain copies of documents. Another approach is to request that witnesses bring certain documents with them when they come to be interviewed, without revealing the purpose for the request. Some documentary sources of evidence include personnel file(s), student file(s), performance evaluations, and discipline records.

  • Visit the site where the harassment is alleged to have taken place.

Sometimes a visit can reveal specific information that tends to support or raise doubts regarding the allegations, such as physical layouts that would conceal actions from potential witnesses or make certain actions less likely to have occurred because there is no place for them to take place without witnesses. Occasionally, it can be determined that a specific action is physically possible or impossible based on site characteristics.

  • Conduct interviews.

When interviewing the alleged harasser, begin by briefing the person on the process that the investigation will follow. Avoid using the term harassment to describe the complaint, but tell the person that “a serious matter has been raised, that she/he has been connected to it and that it involves unwelcome behavior on his or her part.” It is also a good idea to be sure that the alleged harasser understands that the ultimate aim of the investigation is to “end the illegal or inappropriate activity, if there is any, and take preventive measures to see that it does not recur.” 

  • The investigator should be prepared to brief the alleged harasser on his or her due process rights.

The alleged harasser should be advised that the investigation will be conducted in a neutral manner, cautioned regarding confidentiality, and warned against engaging in or organizing retaliation. The allegations should be reviewed with the alleged harasser, and her/his version of the events should be elicited in the same detail requested of the complainant. Assertions that the complainant had a motive to lie or that the conduct was welcome should be explored, and available documentation should be secured. After the interview has been completed, a signed, written statement detailing all events that took place related to the alleged harassment incident should be prepared, signed by the alleged harasser, and placed in the file.

Elicit a description of what happened from the perspective of the complainant or alleged victim, alleged harasser, and witnesses. Whenever possible, information obtained in interviews should be substantiated by documentary evidence. As each person is interviewed, try to fill in chronological gaps in the timeline, clarify conflicting statements, examine inconsistencies in various witness statements, and clarify conflicts with information in documentary evidence. Pursue the facts upon which voiced opinions are based. If a person has difficulty remembering things, ask questions designed to refresh her or his memory such as “Was it before or after Spring Break?”

Witnesses can substantiate evidence, provide contradictory evidence, substantiate allegations, lead to other witnesses, direct you to other data, explain documents and other data, explain policies and procedures, and connect between policies and actual practice. Witnesses can include anyone who may have seen the alleged harassment occur and/or anyone who claims to have received the same treatment from the alleged harasser. Reliable witness information is firsthand knowledge, not something that someone else told them, unless witnesses are verifying that the complainant told them about the situation, which is a type of evidence.

It is important to realize that not all witnesses will want to be interviewed. If the initial contact is on the telephone, it is sometimes necessary to conduct the interview immediately, particularly if the witness seems reluctant. If an interview reveals that a witness may also be a perpetrator, stop the interview and review the person’s due process rights. Do not use group interviews, as each person’s testimony will taint the other’s recollections. After each interview is completed, a signed, written statement detailing the person’s testimony regarding all events that took place related to the alleged harassment incident should be prepared, signed by the witness, and placed in the file.

Once a preliminary round of interviews has taken place and documentary evidence has been perused, other questions or documents often come to mind, and the investigator should follow up on these in a systematic manner. Many experts recommend re-interviewing the complainant, the alleged harasser, and witnesses whose testimony is countered by other testimony or documentary evidence.

  • The investigator must be certain that the investigation is complete.

The investigator must be sure that evidence has not been overlooked and that all witnesses are interviewed. The investigation should not be stopped until all useful information has been explored even where it tends to duplicate other information already obtained. However, this duty to conduct a complete investigation should not be allowed to delay the prompt completion of the investigation.

Source: United States Department of Education

Scott Swier
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