So consider preparing and using such forms you can contact me if you would like help with putting them together. This practice takes the guesswork out of the issue for the investigator. How many times I wished that Title IX coordinators, investigators, and other administrators would prepare forms memorializing some of the most common conversations they had with reporting and responding parties and have the party sign off that the information was shared. While many of you are delivering this message, as an investigator, I often heard from the school that they explained this process to the reporting student but heard from the reporting student that the school did not. This includes retaliatory actions taken by the school and school officials. The school should also explain that Title IX includes protections against retaliation, and that school officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs. In the 2014 Questions and Answers on Title IX and Sexual Violence, for example, OCR explained that:įor Title IX purposes, if a student requests that his or her name not be revealed to the alleged perpetrator or asks that the school not investigate or seek action against the alleged perpetrator, the school should inform the student that honoring the request may limit its ability to respond fully to the incident, including pursuing disciplinary action against the alleged perpetrator. This is one of those times when Obama-era guidance is still helpful, even though it has been rescinded by the current administration. But many reporting parties who request confidentiality, later claim in OCR complaints that their institution did not complete a full investigation and did not clearly explain the impact respecting their request for confidentiality would have on the school’s ability to investigate and respond. And especially in the present climate when the due process rights of responding students are paramount in Title IX investigations, respecting a request not to release a reporting student’s name to a responding student, for instance, can all but foreclose the ability of a school to conduct an investigation and impose any meaningful consequences on the responding student. Unless denying such a request would hinder the school’s ability to provide a safe and nondiscriminatory environment for all students, the request must be respected. Students reporting sexual misconduct to schools, colleges, and universities sometimes want to stay anonymous. Let’s unpack these mistakes so that you can avoid them in your next Title IX investigation. Three of the most common repeat confidentiality concerns in Title IX investigations are the failure to adequately describe the impact confidentiality may have on an institution’s investigation, misunderstandings about the information that can be shared with a reporting party after resolution, and the assumption that OCR will not have access to identifying information during an investigation. Nowhere was this more evident than with confidentiality issues. As an Office for Civil Rights (OCR) investigator, I was surprised by the number of times I saw the same issues again and again in Title IX sexual misconduct investigations.
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