Title IX Corner: Choosing an Investigator

Welcome to our first Title IX Corner blog post, helping you stay informed and in compliance with Title IX.

When determining how to structure your educational institution’s Title IX processes, many questions can arise as to who should be performing investigations into sexual misconduct allegations. Here are our thoughts on a few of those questions.

What is a Title IX investigator?

When allegations of sexual assault or sexual harassment are made in an educational setting, schools (including K-12 school districts, colleges, universities and any other educational program) that receive any form of federal funding have an obligation under Title IX to investigate and respond. The form that investigation takes looks different depending on each school’s policies and procedures.

One model used by many schools includes bringing in a trained outside investigator to conduct the investigation and provide an opinion as to whether the school’s sexual misconduct policy or discrimination policies were violated. To be properly qualified, these investigators should have training and experience specific to the dynamics involved in sexual assault, harassment, stalking, intimate partner violence, and other sex-based or gender-based misconduct.

Why use an outside investigator rather than a school employee?

Using an outside investigator is not a requirement of Title IX; however, there can be many benefits to choosing a qualified outside investigator rather than using a school employee.

One benefit is the avoidance of bias and of the appearance of bias. Oftentimes, at smaller schools in particular, students, faculty and staff know one another and may have relationships that would affect judgments made about one another. An outside investigator is a neutral third party who comes to the investigation free of any preconceived opinions about the parties and witnesses involved. So generally, a school community tends to view an outside investigator as a more reliable judge of the evidence than an investigator who may have direct ties to the people or departments involved. This is particularly true when a party to the investigation is a faculty member, coach, star athlete, or part of a family known to donate to the school. In those cases, the appearance of bias or of a pre-determined outcome is a particular risk when an internal investigator is used.

Another benefit is the ability to take advantage of an outside investigator’s training and experience. An outside investigator often comes to the table with more experience and training on sexual misconduct investigations than an employee who handles Title IX investigations while simultaneously trying to juggle their other administrative or academic roles. This is particularly true at smaller schools, where the volume of cases is lower and a full-time investigator is not practical.

Can a Title IX Coordinator act as an investigator?

Sometimes Title IX Coordinators act as investigators as well. This is not prohibited by Title IX, but it can raise some issues as to conflict of roles.

The Title IX Coordinator is responsible for overseeing investigations. If the Title IX Coordinator is also the one conducting the investigation, they are left to oversee their own work. This can be addressed by involving a trained hearing panel with the responsibility to accept or reject the Title IX Coordinator’s findings and to determine sanctions, and by removing the Title IX Coordinator from the appeals process as much as possible. Under these circumstances, the Title IX Coordinator can serve as the investigator, but the overlap in roles is not ideal.

If budget constraints require a Title IX Coordinator to also fill the role of investigator, it may be helpful for the Title IX Coordinator to seek input from a legal advisor and/or outside investigator, who can assist by reviewing the investigation performed by the Coordinator and giving input on whether further areas of inquiry might be called for.

How can McCarty help?

McCarty is proud to offer Title IX services to school districts, colleges, universities and other education programs governed by Title IX, both by providing a qualified outside investigator to perform investigations of misconduct, and by providing legal counsel and advice to schools as they navigate investigations on their own. For further information, feel free to call us at 920-882-4070.

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Lora L. Zimmer

Health Law and Title IX Attorney at McCarty Law LLP
Lora focuses her practice in corporate and business transactions, with a particular focus on the business and regulatory needs of health care clients. In addition, Lora is a trained Title IX investigator, providing prompt, thorough investigations and objective reporting in response to alleged violations of schools’ sexual misconduct policies.
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