8 Best Practices for Navigating Complex Title IX Investigations

Investigations of alleged violations of Title IX – particularly those involving sexual assault or other potentially violent behavior – are some of the most challenging processes a college or university may undertake. Title IX investigations frequently involve a complex interplay of federal regulations, school policies and procedures, and community relations. They require meticulous adherence to applicable procedures to ensure a thorough investigation that gives all parties an equal opportunity to participate without favoring any party. And they must be conducted in a manner that preserves confidentiality to the greatest extent possible, even while meeting community demands for transparency.

These and other complexities of the Title IX process can sometimes lead to inadequate investigatory methods that in turn could expose a school to a claim that its response to a complaint reflected “deliberate indifference” to the alleged assault. Indeed, even before an investigation, a school’s response to a complaint can expose it to a claim of deliberate indifference if the institution does not sufficiently notify parties of the requirements of the process or available options.

In recent years, courts have entertained claims based on various alleged failings by institutional actors. For example, in one case, campus police did not explain to the complainant her options for bringing a complaint. In another, a school did not “fully advise” the complainant of her “rights and options” for filing a complaint, including that she was required to file a formal written complaint, and the school did not start the investigation until she ultimately filed a written complaint months later.

Furthermore, an otherwise adequate investigative process can raise concerns if the institution fails to act impartially at each stage of the process, such as by not equally providing access to supportive measures or to evidence obtained in the investigation, or by failing to provide information about the status of the investigation to the parties.

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8 Tips for Navigating Title IX Investigations

The best way to guard against such claims is to map out and follow a deliberate and consistent process in all investigations by providing protection and support for all parties and witnesses before, during, and after an investigation. The process should include the following steps:

1. Conduct an immediate threat assessment when a complaint is filed to determine if there is an ongoing risk to the complainant or others in the community. Adjust any interim measures that have been implemented as needed during the investigation. For example, if a no-contact order is not sufficient, additional measures like changes to class schedules or housing, campus escorts, or other measures might be considered if needed for the safety of the parties, witnesses, and community members.
2. Implement processes for assessing whether a party or witness has indicated any potential threat of harm to self or others, either explicitly (e.g., if a party or witness reveals suicidal or other violent ideation) or implicitly (e.g., due to the nature of the conduct of which the respondent is accused), and for responding promptly and effectively when this occurs.
3. Train investigators to respond immediately to expressions of suicidal thoughts or threats of violence, including any that arise during an interview or that are reflected in a party’s or witness’s written submission.
4. Train investigators to regularly check with parties (e.g., during interviews) to ensure they are receiving the support they need and/or are aware of whom to contact to request support or raise related concerns.
5. Create and distribute easy-to-understand and readily accessible information about the Title IX process, such as FAQs, flow charts, summaries, comparison charts, videos, and the like. Ensure these are made available before any investigation begins, such as on a resource webpage and in new employee onboarding, and ensure they are provided again to anyone reporting a concern and to the parties at the start of an investigation.
6. Implement a standardized process to provide all parties with regular updates about the status of the investigation.
7. Provide the parties with the same process throughout the investigation, including providing access to evidence, issuing notices, and setting the length of time for review of evidence, extensions, and the like.
8. Regularly remind parties of policies relating to confidentiality and nonretaliation.

Using a consistent process and implementing these best practices, regardless of who the parties are or the nature of the investigation, will help colleges and universities ensure they are meeting their obligations under Title IX and provide assurance to all campus constituents that the institution is committed to a fair and effective investigative process.

Sasha Thaler, a partner at Constangy, Brooks, Smith & Prophete in Boston, has nearly two decades of experience advising and defending employers in matters ranging from compliance with an array of labor and employment regulations to alternative dispute resolution and employment litigation. She represents clients in a variety of industries, including education, staffing, manufacturing, software and hospitality. In addition, a significant part of Sasha’s practice involves conducting investigations of Title IX and other complaints at colleges and universities.

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