Checklist for Investigating Title IX Claims - The Role and Responsibilities Of The Complaint Investigator

 

This article provides a checklist of needed skills of a school district's Title IX complaint investigator. 

COMPLAINT INVESTIGATOR: ROLE AND RESPONSIBILITIES 

  • The investigator must be knowledgeable.

The complaint investigator should have written materials to assist her/him in investigating cases and receive training in investigation techniques. She/he should especially know the content of the district harassment policy, related state and/or federal laws, procedures for investigating cases, due process issues, methods for minimizing district legal liability, and requirements of the Freedom of Information Act. The complaint investigator should also know how to protect her/himself against charges of defamation, malicious interference with employment, and invasion of privacy charges arising from the investigation.

  • The investigator must be culturally sensitive.

If the complainant [or alleged harasser] is someone whose background might include culturally different ideas about touching others, the proper amount of physical space between individuals in the workplace, eye contact, or other aspects of physical relationships between relative strangers . . . [the investigator should] learn what baseline assumptions or ideas play a part. The investigator must also be sure she/he is communicating with the complainant, alleged harasser, and witnesses effectively. If there is a communication difficulty due to language differences, lack of speech, or developmental disabilities, an interpreter (who is a neutral party and not a family member) should be used.

  • The investigator should use a developmentally as well as culturally appropriate approach.

When interviewing children, it is especially important to avoid leading them to make statements. Additionally, when interviewing students, the investigator should give them more time at the onset to become comfortable, so that they are able to tell their story as freely as possible.

  • The investigator is a neutral fact-finder.

The investigator must keep her/his opinions private, even when hearing details of alleged behavior that are personally repugnant or seemingly unbelievable. Expressions of distaste or disbelief cause the appearance of prejudice and should be avoided. This can be particularly difficult when interviewing distraught persons where there is a strong urge to be sympathetic. The investigator should be sensitive without expressing conclusions and maintain a clear presumption of the accused harasser’s innocence, balanced with concern for the alleged victim.

  • The investigator must make a complete and careful investigation.

A complete investigation identifies instances of harassment, protects the school district from being sued over incidents they should have known about, intercepts false charges, protects the school district from liability for erroneous discipline, reduces or eliminates the amount of any damages that may be obtained by the complainant, protects possible future victims, and retains local control by avoiding court ordered remedies. The investigator must realize that a court appearance may result from the complaint investigation process and be prepared to testify regarding the preparation, objectivity, and thoroughness of the investigation.

It is not necessary to receive a formal complaint. The investigator must investigate all complaints. Even if a fearful complainant requests that the district not investigate, or is unwilling to file a formal complaint, the courts have found that districts are responsible for knowing about harassment through effective utilization of their complaint procedures and have held them responsible. However, this responsibility should not be used to elevate a relatively minor situation to the full investigation level if the problem can be solved by a simple intervention. For example, the complaint manager can go and look at graffiti in a rest room, determine whether it is offensive, and if so, have it promptly removed. In this specific situation, it is not necessary to open a file and investigate, although the situation should be monitored.

  • The complainant and witnesses should also be protected by school district policy against retribution from accused harassers or their supporters.

The investigator has the duty to inform them of this and to monitor the situation during and following the investigation.

Source: United States Department of Education

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We recognize the needs of South Dakota's school officials to obtain first-rate legal advice on a broad range of issues. Our attorneys provide creative, timely, and cost-efficient legal strategies that balance the needs of students, parents, employees, and citizens with the interests of keeping a school district on solid legal footing.

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