Emerging Trends in Title IX Investigations
When Title IX regulations were finalized in 2020, schools became legally required to reinvent their investigation processes.
From the submission of a formal complaint, to the delivery of the decision notice, each piece in a formal Title IX case became highly prescribed and comprehensive–all while limiting the scope of sexual harassment defined by law.
In required correspondence, equal rights of all parties, and processes like the directly related evidence phase and live hearing, Title IX investigations are more advanced and detailed than ever before.
After more than two and a half years of these regulations in-practice, two trends appear evident.
Investigations last longer than ever.
Before the Trump era of regulations, Title IX investigations were to be completed in 60 days, unless a legitimate cause of delay occurred, such as an overwhelming number of witnesses to interview, a winter or summer break interrupting the semester, or a prolonged party absence.
This deadline included the entire investigation-Notice of Allegations, fact-finding and interviewing, and a live hearing if applicable.
Now, complete formal investigations can last a full semester, academic year, or even longer.
It’s not that investigators and Title IX Coordinators have become less efficient, but that more intensive procedural steps are required to complete a case. The Directly Related Evidence phase, where all evidence is collected, reviewed, and responded to in a 10 day period, is an example of such an extension.
Of course, institutions may choose to resolve cases informally, but this option leaves parties without a true finding of responsibility, which may not prove ideal depending on the severity of the allegations, the complainant’s preference, or institutional risk.
The added length of these investigations surely add to the existing mental and emotional fatigue among parties, which presents new challenges for Title IX professionals, mental health advocates and counselors, and crisis-response staff.
More Opportunities to Determine Credibility Exist.
Despite investigations’ added length and complexity, parties are not without some added benefits.
Longer, more emotionally consuming investigation processes do allow for greater opportunities surrounding party credibility.
For example, not only do complainants and respondents participate in one (or more) investigative interviews, but they have the opportunity to review evidence and respond to it within 10 days.
The regulations “Restores fairness…by upholding all students’ right…to submit, cross-examine, and challenge evidence at a live hearing.”
This evidence includes everything from word-for-word interview transcripts to text messages or recordings between parties, security footage, or any other applicable information. Allowing ample time to review evidence means that a party can challenge any statement by another party or witness and has more opportunity than ever to support their own statements and challenge those of others.
After the investigation and evidence review is complete, parties have yet another chance to speak on their own experiences during a federally required live hearing.
Through opening and closing statements, answers to cross examination questions, and questions they ask of others, involved parties can communicate with and create a lasting impression for a decision making panel.
At the end of a live hearing, decision makers should ideally have no more questions regarding the case, evidence, or party credibility.