Title IX - A Review for South Dakota's Public School Leaders (Part 4 - Conducting Investigations)

Part 1 (Background), Part 2 (A School's Response to Sexual Violence), and Part 3 (Students Protected by Title IX and Procedural Requirements) of this series provides an overview of Title IX's legal principles. Part 4 provides a practical approach to dealing with alleged violations and the basics of conducting a Title IX investigation.   

What is a Title IX "investigation"?

An "investigation” refers to the process a school uses to resolve Title IX sexual violence complaints. This may include the fact-finding investigation and any hearing and decision-making process a school uses to determine: (1) whether or not the alleged conduct occurred; and (2) if the conduct occurred, what actions the school will take to end the sexual violence, eliminate the hostile environment, and prevent its recurrence.

What steps should a school’s Title IX investigation include?

The precise steps in a school’s Title IX investigation will depend on the type of allegations, the age of the students involved, the size and structure of the school, state or local legal requirements, and lessons from prior experiences. However, in every case, a school’s Title IX investigation must be adequate, reliable, impartial, prompt and include the opportunity for both parties to present witnesses and other evidence. Every person involved in conducting a school’s Title IX investigations must have training or experience in handling a complaint and a familiarity with the school’s grievance procedures.

The investigation may include (1) conducting interviews of the complainant, the alleged perpetrator, and any witnesses; (2) reviewing law enforcement investigation documents (if applicable); (3) reviewing student and personnel files; and (4) examining other relevant documents or evidence. Remember that while a school has flexibility in how it structures its investigation, a school must provide the complainant any rights that it provides to the alleged perpetrator. A balanced and fair process that provides the same opportunities to both parties will result in a sound and supportable decision.

How does a school's Title IX investigation compare with a law enforcement investigation?

A law enforcement investigation is intended to determine whether an individual violated criminal law. At the conclusion of the law enforcement investigation, if the individual is tried and found guilty, he or she will be subject to criminal penalties. The United States Constitution provides criminal defendants numerous protections, including the right to legal counsel, the right to a speedy trial, the right to a jury trial, the right against self-incrimination, and the right to confront their accusers. Also, government officials responsible for criminal investigations normally have discretion as to which complaints from the public they will investigate.

However, a Title IX investigation does not result in the incarceration of an individual. Therefore, the same procedural protections and legal standards are not required. Further, while a criminal investigation is initiated at the discretion of law enforcement authorities, a Title IX investigation is not discretionary - a school has a duty under Title IX to investigate and resolve complaints promptly, fairly, and provide a safe and nondiscriminatory environment for all students. Because the standards for pursuing and completing criminal investigations are different from those used in Title IX investigations, the termination of a criminal investigation without an arrest or conviction does not affect the school’s Title IX obligations. 

Scott Swier
Founding Member, Attorney At Law