Despite universities continuing to rise to the task of complying with the federal government’s increasing and everchanging Title IX requirements, much of the recent reporting regarding Title IX has focused on universities’ shortcomings, particularly with respect to the timeliness of their investigations. As a refresher, Title IX is the law that prohibits gender-based discrimination in education. Case law and federal regulations have dictated or “molded” the processes by which universities are required to adjudicate complaints of sexual or sex-based treatment or misconduct.

Our firm does several types of Title IX work, including investigations, hearings, appeals, and decision making. It is all too common to see these matters not be finally resolved until years after the underlying incidents took place. Often, there are substantial delays even before the matter has ever even been assigned to us – meaning that students might have a traumatic experience in the first semester of their freshman year and by their sophomore, junior, or even senior year they are still tied up in the process, reliving it over and over every time there is another step.

Why are Title IX matters often so delayed?

Unfortunately, the goal of reaching a timely resolution in Title IX matters is often at conflict with the need to have robust processes. Some of the common reasons for delay in the process include:

• Delays on the part of the parties
  • Complainant being indecisive regarding whether or not to file the complaint
  • Parties requesting a delay for mental health reasons
  • Parties requesting a delay until after finals
  • Parties requesting a delay to find an advisor
  • Parties requesting more time to review the evidence/provide a response
• Delays on the part of advisors
  • Advisors, especially attorneys, who delay the process because they are in trial, have limited availability, etc.
• Delays due to holiday breaks
  • When school breaks for summer and winter it can be even more difficult to get in contact with witnesses, also, faculty witnesses won’t be required to participate when they are off from work
• Delays in the investigation process
  • Unavailability or unresponsiveness of witnesses
  • Delays caused by the need to cooperate with law enforcement
  • Evidence review process leading to additional evidence gathering
• Delays on the institution’s end
  • Not making a timely determination whether or not Title IX applies and/or whether to investigate
  • Not timely assigning or hiring an investigator to investigate
  • Not issuing timely notices to the parties
  • Not assisting the investigator with scheduling interviews
  • Not being timely with getting the investigator-requested documents
  • Delays in getting back to the investigator after receiving a draft report
  • Delays in scheduling a hearing after the investigation is concluded

What steps can institutions take to limit delays?

Delays in the Title IX process have negative impacts on investigators’ ability to gather evidence, the reliability of evidence, and the ability of a hearing officer to evaluate the evidence. Moreover, these delays take a mental and emotional toll on the involved parties and compromise the overall trust between the parties and the institution. Delays can also increase costs for the institution, and even increase the risk of litigation.

As Title IX practitioners through our work as investigators and hearing officers, the OIG team members have acquired insights into some of the ways institutions might work to streamline the Title IX process to avoid unnecessary delays.

Here are some ideas an institution might consider:

• Title IX staff should be prepared to determine after an initial intake meeting whether a complaint meets the threshold for investigation. Complaints that meet the threshold should be immediately referred to an investigator.
• The decision whether to retain an external investigator must also be made promptly. External investigators are often utilized when the matter presents a conflict of interest for internal investigators, or the bandwidth of the internal investigations team is limited.
• Maintaining a list of vetted external investigators, or even an ongoing contract with an investigations firm, can expedite the vetting and retention process for externals.
• The notices of investigation should clearly set forth the allegations which, if true, would violate the institution’s policies, and list those relevant policies. This is not only required by federal regulations but, if written clearly, this document serves as important guidance for the investigator, setting forth the investigative scope and policy definitions.
• Developing consistent protocols for investigations – for example, protocols on whether to record interviews, and on who may accompany parties during interviews – will reduce the need to make ad hoc decisions on such matters during the investigation.
• Likewise, consistent policies regarding matters such as when to accommodate a party’s request for an extension or how to respond to a request by law enforcement to delay an investigation will, again, reduce the need to make ad hoc decisions.
• Investigators should be provided all relevant documentation at the outset of the investigation. Organizational charts and student rosters, if applicable, are also time savers.
• Title IX staff who assist the investigator by distributing notices, making introductions, and effectuating the evidence-review process can help keep an investigation on track if this work is done promptly. If the institution expects the investigator to fulfill these responsibilities unassisted, that should be made clear at the outside.
• Utilizing templates for notices, investigation reports, and other documentation saves time and ensures conformity with university policy. If the investigator is not being provided with a report template, a discussion of expectations regarding the investigative reports should occur at the outset.

• Title IX staff and the investigator should be transparent with the parties regarding how their proactive participation and responsiveness can go hand-in-hand with the timeliness of the Title IX process.
• Title IX office staff should have ongoing communication with the investigator regarding the responsiveness of interviewees. At times, it can be effective for a Title IX staff member to follow up with non-responsive interviewees. Other times, an investigator may need to make a timely decision on whether to move forward without interviewing that person.
• The institution should provide timely feedback to the investigator regarding any draft reports submitted. Many investigators submit draft reports as a courtesy, but this should not be a source of delay to the evidence review process or conclusion of the investigation.

All in all, thinking ahead to what the institution can do to minimize delays and streamline communication is beneficial to everyone involved. At OIG, we continue to see how adjusting and streamlining certain processes can have a positive impact on the timeliness of a Title IX matter and hope that institutions can continue to work toward this goal.