Planning an Appropriate Investigation

1. Planning an Appropriate Investigation NCDPI/Title IX Training September 21, 2007

2. An incident is reported . . . NCDPI/Title IX Training September 21, 2007

3. If the incident was criminal in nature . . . • District should notify the local police. BUT, • District must still do its own investigation, and • Make its own determination (although it might well want to coordinate with police investigation) NCDPI/Title IX Training September 21, 2007

4. Planning an Investigation Planning an Investigation • Carefully interview the person bringing the complaint (complainant) • Take time to identify the specific allegations • Clarify what is being said in order to focus the investigation NCDPI/Title IX Training September 21, 2007

5. Questions to consider … What evidence may be available? What experts may be needed? • Whom to interview? • What documents to gather? NCDPI/Title IX Training September 21, 2007

6. Next Steps • Establish interview order • Prepare questions in advance of the interviews • Follow the rules (Some districts already have policies in place – Q: why should the district’s policies be broad rather than specific?) NCDPI/Title IX Training September 21, 2007

7. District (or School) Policies and procedures • Should broadly apply to all investigations • If the policies are too detailed, it may be necessary to deviate from them, which may open the district or school if the complainant later sues (the atty can argue that the rules were not followed) NCDPI/Title IX Training September 21, 2007

8. What to gather Gather everything relevant • District policies (what are the rules, what are the punishments) • Personnel files • (of accuser and accused, and maybe even witnesses) • Former complaints • Disciplinary files • Emails, letters, diaries, work logs NCDPI/Title IX Training September 21, 2007

9. What to look for • Evidence of a person’s credibility • Links between accuser, accused, witnesses • A history of filing complaints • Bias NCDPI/Title IX Training September 21, 2007

10. ‘Need to Know’ Rule When a complaint is filed, notify only those who ‘need to know, ’ i.e., Title IX Coordinator Top administrators Alleged Harasser NCDPI/Title IX Training September 21, 2007

11. Maintaining confidentiality • Do not disclose name of complainant to witnesses unless it is necessary • (OCR: sometimes it is necessary) • Do not disclose specifics to witnesses • Telling too much can open the school or district to defamation lawsuits NCDPI/Title IX Training September 21, 2007

12. In certain cases, Complainant may request to handle the issue alone (BUT, district or school may not be absolved of responsibility) • In all cases, school should inform the student that confidentiality request may limit the school’s ability to respond • Also, inform student: Title IX prohibits retaliation, the school will take steps to prevent it, and will take strong responsive actions should it occur NCDPI/Title IX Training September 21, 2007

13. However, if . . . • Nature of the conduct doesn’t warrant an inquiry but there is a need to do something . . . • Discuss appropriate behavior with the offender and caution against any retaliation • Not necessary to say that a complaint was made but make it clear what is expected from the alleged harasser • If this is done, be sure to let the complainant know beforehand NCDPI/Title IX Training September 21, 2007

14. Rule of thumb . . . • Evaluate the confidentiality request in the context of the school’s responsibility to provide a safe and non-discriminatory environment to all students NCDPI/Title IX Training September 21, 2007

15. Selecting an Interview Site • Best conducted on site • Minimize disruptions • Select a room away from prying eyes • Avoid room where people feel trapped • May be necessary to choose a neutral site NCDPI/Title IX Training September 21, 2007

16. Other guidelines . . . • Exercise care in separating people; don’t move the complainant unless that person wants to be moved • Place employees on leave, but don’t dock pay (unless particularly egregious and in full view) • Stress that leave is in best interest of accused • Advise accused to not contact anyone involved (applies to complainant and witnesses as well) • Explain that full cooperation is expected NCDPI/Title IX Training September 21, 2007

17. Another rule of thumb … • An investigation that recognizes the due process rights of the accused will likely result in the strongest, most supportable outcome NCDPI/Title IX Training September 21, 2007

18. Separation may be necessary IF: • there are allegations involving • touching • physical harm/violence • discomfort working together • ongoing harassment NCDPI/Title IX Training September 21, 2007

19. Questions to ask Complainants: • Who is the harasser? • Do you know him/her? How? • When and where did each incident take place? • What was said and done by each party? • What was your reaction? NCDPI/Title IX Training September 21, 2007

20. Questions to ask Complainants: • Did you let the person know the behavior was unwelcome? • How were you affected? • Did anyone else witness the incidents? • Have you talked to anyone else about the incidents? • Is there any documentation of the incidents? NCDPI/Title IX Training September 21, 2007

21. Questions to ask Complainants: • Do you know if this person is doing this to anyone else? • What do you want to happen as a result of this inquiry/investigation? NCDPI/Title IX Training September 21, 2007

22. Questions to ask Accused: • Do you know this person who brought the complaint? How? • When and where did each incident take place? • What was said or done by each party? • How did the complainant react? • Did the complainant let you know the behavior was unwelcome? NCDPI/Title IX Training September 21, 2007

23. Questions to ask Accused: • Did anyone witness the incidents? • Have you spoken to anyone else about the incidents? • Is there any documentation of the incidents? NCDPI/Title IX Training September 21, 2007

24. Finally, • Keep a complete and accurate record of the investigation: • Who was interviewed • Witness statements • Document the decisions that were made NCDPI/Title IX Training September 21, 2007

25. Questions? • Belinda Black – bblack@dpi.state.nc.us • William Hatch- whatch@dpi.state.nc.us • Laurie Mesibov – mesibov@sog.unc.edu • Howie Kallem – hkallem@gmu.edu NCDPI/Title IX Training September 21, 2007