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Student Investigations:
What Administrators Need to Know
Presented by: Anne H. Littlefield, Esq. Colchester Public Schools
December 13, 2021
© Shipman & Goodwin LLP 2021. All rights reserved. Connecticut | New York | Washington, DC | www.shipmangoodwin.com
Agenda
Investigation Challenges
Connecticut Bullying Law
Targeted Harassment
Investigations
2 © Shipman & Goodwin LLP 2021. All rights reserved.
Investigation Challenges
© Shipman & Goodwin LLP 2021. All rights reserved. Connecticut | New York | Washington, DC | www.shipmangoodwin.com
Practical Concerns
• Time constraints
• Knowing (or NOT knowing) students’ prior history
• Institutional knowledge (i.e. how has this been handled before?)
• Should we call the police?
• Should we call DCF?
• Diverse populations
• I’m not a trained detective!
4 © Shipman & Goodwin LLP 2021. All rights reserved.
Practical Concerns
• Overlapping Policies
• Ever-changing legal requirements/procedural requirements
• Special education/504 issues
• Communications with parents
• Press/social media attention
5 © Shipman & Goodwin LLP 2021. All rights reserved.
Connecticut Bullying Law
© Shipman & Goodwin LLP 2021. All rights reserved. Connecticut | New York | Washington, DC | www.shipmangoodwin.com
2019 Changes to Bullying Law Effective
July 1, 2021 – Public Act 19-166
• No longer a requirement that both
the alleged perpetrator and alleged
victim be students attending school
in the same district.
• Removes requirement that the act be
“repetitive”
• Establishes a new harassment-like
standard, which requires that the act
be “severe, persistent, or pervasive.”
7 © Shipman & Goodwin LLP 2021. All rights reserved.
“Bullying” in Connecticut
“ • An act that is direct or indirect and severe, persistent or
pervasive, which (A) causes physical or emotional harm
to an individual, (B) places an individual in fear of
physical or emotional
Increased harm, or (C) infringes on the rights
Flexibility
or opportunities of an individual at school.
This new definition was part of changes to the bullying law in 2019
and became effective on July 1, 2021
“
8 © Shipman & Goodwin LLP 2021. All rights reserved.
“Bullying” includes:
A written, oral or electronic communication or
physical act or gesture
based on any actual or perceived differentiating
characteristics, such as race, color, religion,
ancestry, national origin, gender, sexual
orientation, gender identity or expression,
socioeconomic status, academic status, physical
appearance, or mental, physical, developmental or
sensory disability, or by association with an
individual or group who has or is perceived to
have one or more of such characteristics.
9 © Shipman & Goodwin LLP 2021. All rights reserved.
“Cyberbullying”
“ Cyberbullying is explicitly defined as “…any act
of bullying using the internet, interactive and
Increased
digital technologies,
Flexibility cellular mobile telephone or
other mobile electronic devices, or any electronic “
communications.”
10 © Shipman & Goodwin LLP 2021. All rights reserved.
On school grounds
Bullying At a school-sponsored or school-related activity, whether on
or off school grounds
MUST
be investigated
when it occurs… At a school bus stop or on a school bus or other vehicle
owned, leased or used by district
Through the use of an electronic device or mobile device owned,
leased or used by local or regional Board of Education, AND
11 © Shipman & Goodwin LLP 2021. All rights reserved.
Outside of the school setting if any of such bullying
fulfills any of the following 3 characteristics:
AND Creates a hostile school environment for the
Bullying victim
MUST
be investigated
when it occurs… Infringes on the rights of the victim at school OR
Substantially disrupts the education process or the
orderly operation of a school
12 © Shipman & Goodwin LLP 2021. All rights reserved.
Anonymous Reports By Students
Must be investigated, while maintaining the student’s name and identity
confidential
Investigation may be limited, as appropriate in view of anonymity
Anonymous victim should be informed of this at start of investigation
Must be investigated to the extent possible
No discipline may be implemented based solely on an anonymous report
13 © Shipman & Goodwin LLP 2021. All rights reserved.
When the Investigation is Complete…
• No written report required. However, district must have procedures to
document and maintain records of complaints and investigations.
• Must have list of verified incidents.
• Within 48 hours of the completion of the investigation, school officials must
notify parents of any student who commits a verified act of bullying and the
parents of any student against whom such act of bullying was committed.
• Verbally and by electronic mail, if such parents' or guardians' electronic mail
addresses are known, that such parents or guardians may refer to the plain
language explanation of the rights and remedies available under sections 10-4a
and 10-4b published on the Internet web site of the local or regional board of
education
14 © Shipman & Goodwin LLP 2021. All rights reserved.
When the Investigation is Complete…
• Parents of a student whom such act was directed must be invited to a
meeting where the school communicates the measures being taken by
the school to ensure student safety and prevent further acts of
bullying.
• Parents of a student who commits any verified act of bullying must
be invited to a meeting to discuss specific interventions undertaken
by the school to prevent further acts of bullying.
• Meetings with each set of parents should be separate and distinct.
15 © Shipman & Goodwin LLP 2021. All rights reserved.
What are my responsibilities for intervention?
• When acts of bullying are verified, school officials must develop
“student safety support plans for students against whom an act of
bullying was directed that address safety measures the school will
take to protect such students against further acts of bullying.”
• When there are repeated verified acts of bullying against a single
individual student or recurrently perpetrated bullying incidents by
the same individual, school officials must develop case-by-case
interventions that may include both counseling and discipline.
© Shipman & Goodwin LLP 2021. All rights reserved.
16
What are appropriate consequences for
bullying?
• The notification to parents of a student who committed a verified act of
bullying must include “a description of the response of school employees
to such acts and any consequences that may result from the commission
of further acts of bullying.”
• Consider need for:
▪ Increased supervision
▪ Separation of students involved
▪ Computer restrictions/loss of privileges
▪ Counseling
▪ Formal discipline (ISS, OSS, expulsion)
© Shipman & Goodwin LLP 2021. All rights reserved.
17
Historically Poor School Responses
• Mere suspension of students involved
▪ Limits student’s ability to receive positive
support for behavioral changes
▪ Likely bullying/harassment will persist
• Schools must take more proactive preventative
approaches to bullying and harassment
▪ Not doing so may expose districts to liability
18 © Shipman & Goodwin LLP 2021. All rights reserved.
Hot Topic: Bullying and FAPE
• School administrators must be aware of overlapping responsibilities
regarding FAPE and bullying
▪ Appropriate topic for discussion at PPT meeting?
▪ Impact on FAPE for student victim?
▪ Impact on FAPE for student perpetrator?
▪ Are more or different supports needed?
▪ Placement considerations?
19 © Shipman & Goodwin LLP 2021. All rights reserved.
Targeted Harassment
© Shipman & Goodwin LLP 2021. All rights reserved. Connecticut | New York | Washington, DC | www.shipmangoodwin.com
School Climate
Public Act 19-166
Requires school district to post on
their internet website training
materials for school administrators
“regarding the prevention of and
intervention in discrimination
against and targeted harassment of
students” based on such students’
actual or perceived differentiating
characteristics.
The discrimination or harassment may also be based on a student’s “association with
individuals or groups who have or are perceived to have one or more of [the]
characteristics” defined on the next slide
© Shipman & Goodwin LLP 2021 21
Differentiating Characteristics
(actual or perceived) include:
Public Act 19-166
Race Gender Identity
Color Gender Expression
Religion Socioeconomic Status
Ancestry Physical Appearance
National Origin Mental or Physical Disability
Gender Developmental Disability
Sexual Orientation Sensory Disability
22 © Shipman & Goodwin LLP 2021
What is Targeted Harassment?
Targeted harassment includes three elements:
1 verbal or physical act toward a student based on such
students actual or perceived differentiating
characteristics, or association with individuals or
groups with one or more of such characteristics,
2 that is threatening, harmful, demeaning, or
humiliating, and
2 creates a hostile environment that interferes with or
limits a student’s ability to participate in or benefit
from the services, activities, or opportunities offered
by a school.
23
© Shipman & Goodwin LLP 2021
“Targeted Harassment” Does
NOT Require:
Intent to harm
Harm directed toward a particular student
Repeated incidents*
* To meet the “hostile environment” standard, a single incident would have to
be sufficiently severe so as to alter the student’s access to education.
24
© Shipman & Goodwin LLP 2021
Harassment vs. Bullying
Harassment v. Bullying
Concerns any individual
Act directed at protected class
Direct or indirect and severe,
persistent or pervasive
Need not be directed at a student;
no intent to harm required;
one act sufficient
Physical or emotional harm
Threatening, harmful, demeaning or
humiliating act
Or reasonable fear of harm
Hostile environment: must be severe, Or infringes on the rights or
persistent or pervasive opportunities of an individual
at school
25 © Shipman & Goodwin LLP 2021
Hostile Environment
Depends on ”totality of the circumstances,” including but not
limited to:
How much of an adverse effect the conduct had on
student’s education;
The type, frequency, or duration of the conduct;
The identity, age, and sex of the harasser(s) and the victim(s), and the
relationship between them;
The number of individuals who engaged in the harassing conduct and
at whom the harassment was directed;
The way in which the incidents occurred; and
Whether other incidents occurred at the school involving different
students
26 © Shipman & Goodwin LLP 2021
What does harassment look like?
Severe physical
Name calling, act of violence
including
racial slurs Jokes or
offensive Embarrassing,
gestures threatening, humiliating,
patronizing, or
intimidating remarks
Graphic statements, Spreading a
which may include malicious, Mocking others’
use of cell phones, unfounded rumor accents or mimicking
internet, social the way they speak
media
27 © Shipman & Goodwin LLP 2021
Responsible Employees
Employees who are responsible to take immediate
and effective corrective action include any
employees who:
1
Have the authority to take action to redress the
harassment, or
Responsible
Employees 2 Have the duty to report to appropriate school
officials harassment or any other misconduct by
students or employees, or
3 Any individuals who a student could reasonably
believe have this authority or responsibility
OCR Dear Colleague Letter (October 2010)
© Shipman & Goodwin LLP 2021 28
Responsible Employees
Must immediately report the misconduct so that the
school may begin an investigation.
• Reach out to safe school climate specialist, and district’s
Title IX and Section 504/Title II coordinators, as
appropriate.
Should report even just one act, as an investigation may
discover additional acts that, together, may constitute a
hostile environment.
Be aware of warning signs, such as behavior and
attendance issues, that may signal that potential
harassment is affecting a student’s ability to participate in
his/her educational program.
29 © Shipman & Goodwin LLP 2021
District Liability
Peer-On-Peer Harassment
Schools may be found liable for
failing to prevent peer-on-peer
harassment.
Responsible employees must
appropriately respond when they
become aware, or are provided with
“notice.”
© Shipman & Goodwin LLP 2021 30
Notice of Peer-on-Peer Harassment
• May include obvious signs, such as harassment occurring in
hallways, during academic or physical education classes, during
extracurricular activities, at recess, on the bus, or through graffiti.
• May be less obvious, such as student misconduct, which triggers
an investigation that could lead to the discovery of additional
incidents.
• Prior notice of a student’s past harassing conduct may trigger a
school district’s obligation to prevent recurrence of harassment
on future victims, but only if the school has actual notice of such
prior history.
© Shipman & Goodwin LLP 2021 31
Multiple Responsibilities
• Student conduct may trigger responsibilities to investigate and respond under:
▪ Bullying law/safe school climate
▪ Civil rights laws for protected-class harassment (e.g. Section 504, Title IX,
Title VI)
▪ Student Discipline Policy (generally)
• Bullying behavior directed toward students with disabilities may trigger
additional obligations related to the student’s right to a free appropriate public
education (FAPE):
▪ Section 504, IDEA
© Shipman & Goodwin LLP 2021. All rights reserved.
A Word About Title IX
• Prohibits recipients of federal funds from
discriminating on the basis of sex (but not
sexual orientation)
• Prohibits sexual harassment of students by
school employees, other students and third
parties because such conduct denies students
the benefits of an educational program
• Most common cause of action among
bullying/harassment cases.
▪ Much peer-to-peer banter, including that
constituting bullying or harassment, involves
offensive words with sexual connotations
33 © Shipman & Goodwin LLP 2021. All rights reserved.
New Final Regulations
• New Title IX regulation holds schools
accountable for failure to respond
equitably and promptly to sexual
misconduct incidents.
• Final Regulations are a significant change
to how Title IX is managed and include
extensive procedural requirements.
34 © Shipman & Goodwin LLP 2021. All rights reserved.
New Final Regulations: What’s New?
A definition of sexual harassment
A duty for schools to only investigate complaints of conduct that
occurred within their program or activity
Adoption of an “actual knowledge” and “deliberate indifference”
standard
Under the Final Regulations, if a school district has actual knowledge of sexual
harassment in a district education program or activity, the district must respond
promptly in a manner that is not deliberately indifferent.
A detailed grievance process for formal complaints of sexual
harassment – specific roles for administrators in grievance process
35 © Shipman & Goodwin LLP 2021. All rights reserved.
“Sexual Harassment”
“ …Conduct on the basis of sex that satisfies one or more of the
following:
▪ An employee of the District conditioning the provision of an aid, benefit,
or service of the District on an individual’s participation in unwelcome
sexual conduct (i.e., quid pro quo);
▪ Unwelcome conduct determined by a reasonable person to be so severe,
Increased
pervasive, and objectively
Flexibility offensive that it effectively denies a person
equal access to the District’s education programs or activities; or
▪ “Sexual assault”* (20 U.S.C. 1092(f)(6)(A)(v)), “dating violence”* (34 U.S.C.
12291(a)(10)), “domestic violence”*(34 U.S.C. 12291(a)(8)) or “stalking”*
(34 U.S.C. 12291(a)(30)).
“
*These definitions can be found in Appendix A of the
Shipman & Goodwin model Administrative Regulations.
36 © Shipman & Goodwin LLP 2021. All rights reserved.
Key Personnel – Title IX
Title IX
Coordinators
Appeal
Decision-Mak Investigators
ers
Key
Personnel
Informal
Decision-mak
Resolution
ers
Facilitators
Advisors
© 2021 Shipman & Goodwin LLP. All rights reserved.
“Actual Knowledge”
“ In elementary and secondary schools, the District is
deemed to have actual knowledge when notice of sexual
harassment or allegations of sexual harassment:
1. is given to the TitleIncreased
IX Coordinator
Flexibility
2. is given to any official of the District
3. is given to any employee of an elementary or
secondary school.
“
© 2021 Shipman & Goodwin LLP. All rights reserved.
General Response to Sexual
Harassment
If the District has actual
knowledge of sexual The District must respond
harassment in a District promptly and in a manner that
education program is not deliberately indifferent.
or activity…
The District’s response must treat The District is deliberately
complainants and respondents equitably by
offering supportive measures to the indifferent only if its response
complainant and by following the grievance to sexual harassment is clearly
process outlined here before the imposition
of any disciplinary sanctions or other actions
unreasonable in light of known
that are not supportive measures. circumstances.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Types of Sexual Harassment
Unwelcome
conduct so severe, Sexual assault,
Quid Pro Quo pervasive and dating violence,
“This for offensive that domestic
it effectively denies a
That” person equal access to violence,
the District’s education stalking
programs or activities
© 2021 Shipman & Goodwin LLP. All rights reserved.
Quid Pro Quo
“This for That”
• When a teacher or other school employee conditions an
educational decision or benefit on the student’s submission to
unwelcome sexual conduct.
▪ Submission to such conduct may either be made
explicitly or implicitly.
▪ If this occurs, it does not matter whether the student
resists and suffers the threatened harm or submits to
and avoids the threatened harm.
• Quid pro quo harassment can also occur when a District employee
conditions a benefit or service on another employee’s submission
to unwelcome conduct.
41
© Shipman & Goodwin LLP 2020
Severe, Pervasive, Offensive
Unwelcome Conduct
When a teacher, school
employee, other student, or third
party engages in unwelcome
conduct that is determined by a
reasonable person to be so
severe, pervasive, and objectively
offensive that it effectively denies
a person equal access to the
District’s education program or
activity.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Sex-Based Offenses
“ ▪ “Sexual assault” (20 U.S.C. 1092(f)(6)(A)(v)), “dating
violence” (34 U.S.C. 12291(a)(10)), “domestic
violence” (34 U.S.C. 12291(a)(8)) or “stalking” (34
U.S.C. 12291(a)(30)).Increased
Flexibility
“
© 2021 Shipman & Goodwin LLP. All rights reserved.
Examples of Sexual Harassment
Unwanted sexual advances, requests for sexual favors, or other verbal,
nonverbal, or physical conduct of a sexual nature including:
• Statements or other conduct indicating that a student’s submission to, or
rejection of, sexual overtures or advances will affect the student’s grades
and/or other academic progress.
• Unwelcome attention and/or advances of a sexual nature, including
verbal comments, sexual invitations, leering and physical touching.
• Display of sexually suggestive objects, or use of sexually suggestive or
obscene remarks, invitations, letters, emails, text messages, notes, slurs,
jokes, pictures, cartoons, epithets or gestures.
• Touching of a sexual nature or telling sexual or dirty jokes.
44
© Shipman & Goodwin LLP 2020
Examples of Sexual Harassment
Unwanted sexual advances, requests for sexual favors, or other verbal,
nonverbal, or physical conduct of a sexual nature including:
• Making sexual comments, jokes or gestures (written or
verbal).
• Distributing sexually explicit images such as drawings or
pictures, or written materials (including cyber-distribution).
• Transmitting or displaying emails or websites of a sexual
nature.
• Calling students sexually charged names.
• Spreading sexual rumors.
45
© Shipman & Goodwin LLP 2020
Grievance Process for Allegations of Sexual Harassment
District receives notice or actual
knowledge of sexual harassment
District offers supportive
measures
Formal complaint is filed by the
complainant or signed by the Title IX
Coordinator
Informal Resolution
Investigation
Process
Decision Regarding If no agreement is
Responsibility reached
Appeal
© 2021 Shipman & Goodwin LLP. All rights reserved.
Principles Under the New Final
Regulations
Focus on Due Process
• Treat complainant and respondent equitably
• Fairness to complainant and respondent
• Formal grievance process must be followed before
discipline can be imposed
No Bias – Must be Neutral
• Between men/women
• Between complainants/respondents
• Not based on stereotypes
© 2021 Shipman & Goodwin LLP. All rights reserved.
Title IX Coordinator: Obligations
• The District must designate and authorize at least one employee
to coordinate its efforts to comply with its responsibilities under
Title Title IX. This is the “Title IX Coordinator.”
• This specific title must be used to identify this individual.
• Must be trained on Title IX policies and procedures.
• All training materials must be posted on the District’s
Training website.
• Monitor the District’s compliance with Title IX.
• Ensure appropriate education and training is provided.
Obligations • Coordinate the response to all reports of sex
discrimination and sexual harassment.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Title IX Coordinator:
Responsibilities within the Grievance Process
Contact each complainant (defined as a person who is alleged to be the
victim of sexual harassment) to discuss supportive measures and inform
the complainant of the availability of these measures with or without
filing a formal complaint
Consider the complainant’s wishes regarding supportive measures
Explain to the complainant the process for filing a formal complaint
Follow grievance process before imposing disciplinary sanctions if
respondent is found responsible
If respondent is found responsible, then effectively implement
remedies for the complainant, designed to restore or preserve the
complainant’s equal educational access
Must be impartial, unbiased, and free from conflicts
© 2021 Shipman & Goodwin LLP. All rights reserved.
Supportive Measures
The Title IX Coordinator must promptly contact the complainant to discuss the
availability of supportive measures, consider the complainants wishes with
respect to supportive measures, inform the complainant of the availability of
supportive measures with or without filing a formal complaint, and explain to
the complainant the process for filing a formal complaint.
Non-disciplinary
Non-Punitive
Individualized
(as appropriate and reasonably available)
Without fee
(to complainant or respondent)
Before or after filing of formal complaint or
where no formal complaint is filed
Supportive Measures
50
© Shipman & Goodwin LLP 2020
Formal Complaint
The filing of a formal complaint triggers the beginning of the
formal grievance process.
Ensure Signing of
Inform
Jurisdiction Formal
Complainant
under Title IX Complaint
• Title IX Coordinator • At the time of filing, • When the Title IX
will inform the complainant must Coordinator signs a
complainant about be participating or formal complaint,
the right to file a attempting to he/she is NOT the
formal complaint participate in the complainant or
• But, will not District’s education otherwise a party
encourage or program or activity
discourage a person • Formal complaints
to file a formal can be filed by a
complaint student’s parent or
the Title IX
© 2021 Shipman & Goodwin LLP. All rights reserved. Coordinator.
Grievance Process: Basic
Requirements
The filing of a formal complaint is the first step in the formal
sexual harassment grievance process. The process must treat
complainants and respondents equitably by:
Providing Remedies to
Disciplinary Sanctions ONLY
Complainant if/when
Following Grievance Process
Respondent is Found Responsible
• Remedies must be designed to • Grievance process must be
restore or preserve equal access to followed before any imposition of
the District’s education program or any disciplinary sanctions or other
activity actions that are not supportive
• Remedies may include supportive measures against a respondent
measures; however, remedies • Grievance process must be
need not be non-disciplinary or reasonably prompt
non-punitive and need not avoid • Presumption of innocence
burdening the respondent
© 2021 Shipman & Goodwin LLP. All rights reserved.
Grievance Process: Basic
Requirements
Without Bias or
Evaluation of Evidence
Conflict of Interest
• The grievance process • The designated Title IX
requires an evaluation of all Coordinator, investigators,
relevant evidence – decision-makers, and
including both inculpatory informal resolution
and exculpatory evidence. facilitators must not have a
• Credibility determinations conflict of interest or bias
may not be based on a against complainants or
person’s status as a respondents generally, or
complainant, respondent, an individual complainant
or witness. or respondent
© 2021 Shipman & Goodwin LLP. All rights reserved.
“Conflict of Interest”
“ A conflict of interest occurs when it is proven that the Title
IX Coordinator, investigator(s), and/or decision-maker(s)
have personal, financial and/or familial interests that
affected the outcome of Increased
the investigation.
Flexibility
“
© 2021 Shipman & Goodwin LLP. All rights reserved.
“Bias”
“ Bias occurs when it is proven that the Title IX Coordinator,
investigator(s), and/or decision-maker(s) demonstrate
actual bias, rather than the appearance of bias. Actual bias
includes, but is not limited to, demonstrated personal
Increased
animus against the respondent
Flexibility
or the complainant and/or
prejudgment of the facts at issue in the investigation.
“
© 2021 Shipman & Goodwin LLP. All rights reserved.
Notice of Allegations
Upon receipt of a formal complaint of sexual harassment, the District
must provide a written notice to the known parties and provide the
parties with a copy of the grievance process.
• The information to be included in
the notice can be found in the
Final Regulations
• Sample notice is included in the
Shipman & Goodwin LLP model
administrative regulations
If, in the course of an investigation, the District decides to investigate
allegations about the complainant or respondent that are not
included in the notice, the District must provide an additional notice.
56 © Shipman & Goodwin LLP 2020
Investigation
Upon a formal complaint being filed, one or more investigators will be
assigned to gather relevant evidence and draft an investigative report.
Equal No
Burden of
opportunity restrictions on
proof
for parties either party
• Burden of proof and of • The investigator(s) • The investigator(s)
gathering evidence sufficient must provide an may not restrict the
to reach a responsibility equal opportunity for ability of either party
determination rests on the the parties to present to discuss the
District and not on the witnesses, including allegations under
parties. fact and expert investigation or to
• The District must obtain witnesses, and other gather and present
voluntary, written consent
inculpatory and evidence.
(or consent of a
exculpatory evidence.
parent/guardian) to obtain
medical records to be used in
the grievance process.
57 © Shipman & Goodwin LLP 2020
Investigation: Right to an Advisor
Both the complainant and the respondent must
have the same opportunities to have others
present during any part of the grievance process,
including an opportunity to be accompanied by an
advisor of their choice. This person can be, but is
not required to be, an attorney.
The District may establish restrictions
regarding the extent to which the advisor
may participate in the proceedings, as
long as the restrictions apply equally to
both parties.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Investigation
For any meeting or investigative interview, the investigator(s) must provide
a written notice to any party whose participation is invited or expected.
The notice must include:
Date
Time
Location
Participants
Purpose
© 2021 Shipman & Goodwin LLP. All rights reserved.
Conducting a Thorough Investigation
1Conduct Investigation Interviews
• Interview of the parties
▪ What happened? When did it happen? Where did it happen? Have you
talked to others about what happened? Did you write down what
happened?
• Witness interviews/statements
▪ Do you know what is alleged to have happened? Where were you when it
happened? Do you know the respondent and/or complainant? For how
long and how would you describe your relationship with them (friend,
acquaintance, etc.)?
• Listen carefully to answers. Ask follow up questions.
• Start with broad, general questions, then narrow the questions. Avoid
yes/no questions.
60 © Shipman & Goodwin LLP 2020
Investigation: Review of Evidence
• The investigator(s) must provide both parties an equal opportunity
to inspect and review any and all evidence obtained as part of the
investigation that is directly related to the allegations in the formal
complaint.
• This includes any evidence upon which the investigator(s) does
not intend to rely and any inculpatory or exculpatory evidence.
• The investigator(s) must send to each party (and the party’s
advisor, if any), the evidence subject to inspection and review in
either electronic format or hard copy.
• The parties must have at least 10 days (10 school days in the
Shipman & Goodwin model Administrative Regulations) to
submit a written response.
• The investigator(s) must consider these written responses prior to
completing the investigative report.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Investigation: Investigative Report
• The investigator(s) must
create an investigative report
that fairly summarizes the
relevant evidence and must
send the report to each party
(and the party’s advisor, if
any) in electronic format or
hard copy.
• Each party can then provide a
written response to the
investigative report.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Decision-Maker
• The District shall appoint a decision-maker(s), who
must be someone other than the Title IX
Coordinator or the investigator(s).
• The investigator(s) and the decision-maker(s) shall
not discuss the investigation’s facts and/or
determination while the formal complaint is
pending.
© 2021 Shipman & Goodwin LLP. All rights reserved.
Decision-Maker – Written Questions
• After the investigative report is sent to the
parties, the decision-maker(s) must afford
each party the opportunity to submit
written, relevant questions that a party
wants asked of any party or witness.
▪ The opportunity to submit written questions
must be afforded to the parties even if the
District provides a live hearing.
• The decision-maker(s) must then provide
each party with the answers and allow for
additional, limited follow-up questions
from each party.
• The decision-maker(s) must explain to the
party proposing the question any decision
to exclude a question as not relevant.
© 2021 Shipman & Goodwin LLP. All rights reserved.
What is Relevant Evidence
Investigators preparing an investigative report and
decision-makers allowing questions must determine if the evidence
is relevant.
• Evidence is relevant if it has a tendency to make something more or less
probable than it would be without the evidence and it is of consequence
in determining the question of sexual harassment.
▪ Relevance is broad and can include questions about the who, what, when,
and how of the allegations, as well as issues related to motive or bias,
among others.
▪ Relevant evidence includes both exculpatory and inculpatory evidence (i.e.
must look at evidence that is both favorable and unfavorable to any party).
• Evidence that constitutes or seeks disclosure of information protected
under a legally recognized privilege
(i.e. attorney-client or doctor-patient)
cannot be required, allowed, or relied upon unless
the person holding the privilege has waived the privilege.
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Rape Shield
Investigators and decision-makers are not allowed to ask
questions or seek evidence about a complainant's prior sexual
acts because such acts are deemed irrelevant. The parties may
not ask these questions of each other.
Unless… the evidence is used to prove:
• someone other than the respondent
committed the alleged offense, or
• specific incidents of past sexual behavior
between the complainant and
respondent and is offered
to prove consent.
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Decision-Maker: Responsibility Determination
Decision-makers must weigh the relevant evidence and decide whether
it meets the standard of evidence to demonstrate that sexual
harassment occurred.
▪ Preponderance of the evidence standard = more likely than not
responsible.
▪ Clear and convincing evidence = highly probable to be true
The decision must be based on an objective evaluation of the
evidence, and the decision-maker must be able to explain his/her
rationale based on the evidence.
Decision-makers need to use independent judgment and be free from
conflict of interest and bias.
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Decision-Maker: Responsibility
Determination
The decision-maker(s) will issue a written determination regarding
responsibility. The written determination will include:
Identification of the allegations potentially constituting sexual harassment;
1
A description of the procedural steps taken from the receipt of the formal complaint through the
2 determination, including any notifications to the parties, interviews with parties and witnesses, site
visits, methods used to gather other evidence, and hearings held (if applicable);
3 Findings of fact supporting the determination;
Conclusions regarding the application of the District’s code of conduct (student discipline policy) to
4 the facts;
A statement of, and rationale for, the result as to each allegation, including a determination
regarding responsibility, any disciplinary sanctions the District will impose on the respondent, and
5 whether remedies designed to restore or preserve equal access to the District’s education program
or activity will be provided by the District to the complainant; and
The District’s procedures and permissible bases for the complainant and respondent to appeal.
6
The written determination will be provided to both parties simultaneously.
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Appeals
Either party can appeal from a responsibility determination or a
dismissal of a formal complaint on the following bases:
New evidence that was not reasonably available at the time the
determination regarding responsibility or dismissal was made, that could
affect the outcome of the matter;
Procedural irregularity that affected the outcome of the matter; or
The Title IX Coordinator, investigator(s), and/or decision-maker(s) had a
conflict of interest or bias for or against complainants or respondents
generally or the individual complainant or respondent that affected the
outcome of the matter.
The District may add other bases for appeal so long as they are
offered equally to both parties.
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Appeals
When an appeal is filed, the District:
Provide notice to the other party in writing and implement appeal
procedures equally for both parties;
Ensure that the decision-maker(s) for the appeal is not the
investigator(s), Title IX Coordinator, or decision-maker(s) for the
responsibility determination;
Give both parties a reasonable, equal opportunity to submit a written
statement in support of, or challenging, the outcome;
Issue a written decision describing the result of the appeal and the
rationale for the result; and
Provide the written decision simultaneously to both parties.
Supportive measures for either or both parties be continued
throughout the appeal ©process.
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How To Serve Impartially
• Everyone designated as an investigator, decision-maker,
appeal decision-maker, informal resolution facilitator, or
Title IX Coordinator must serve impartially and must avoid
prejudgment of the facts at issue, conflicts of interest, and
bias.
• Investigators and decision-makers cannot evaluate or collect
evidence in a way that is based on stereotypes or that favors
complainants over respondent or men over women
NOTE: Different treatment of complainants and
respondents due to sex-based stereotypes about
how men and women behave with respect to
sexual violence violates Title IX.
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Responding to Potential Harassment Claims
Recognize
that student-on-student
Remember
conduct may constitute
that misconduct need
Involve
racial, sexual or
disability harassment not be directed at a
particular student to relevant District
(or other personnel (Title IX,
protected-class constitute
discriminatory Title VI, or Section 504
harassment), and may Coordinator)
implicate harassment fostering
anti-harassment hostile environment
policies
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Harassment Directed Toward Students
with Disabilities
May trigger additional
obligations related to the
student’s right to a free Notify the student’s
appropriate public case manager and/or
education (FAPE) the district’s Section
504 coordinator
• Section 504
• PPT process
73
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Practical Suggestions
When reviewing “bullying” complaints always ask whether the conduct at
issue may be based on a protected class. Is the alleged bullying based on:
• Race, national origin or color?
• Sex?
• Disability?
• Other protected classes under state law? (e.g. gender identity or
expression, sexual orientation?)
If so, conduct BOTH
bullying and
discrimination/harassment If you observe even just one
investigations. incident of harassment (calling a
student a racial slur), report it;
an investigation should occur.
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Investigations
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Before You Start Investigating
• Understand the allegations/complaint
▪ What is the question(s) I need to answer?
▪ Is how the student characterized it accurate?
• Prioritize
▪ Any immediate safety issues? Need to call 211? Police? Parents?
• Identify relevant policies (Title IX, Non-discrimination, 504 etc.)
▪ Contact relevant coordinators
• Does student have IEP/504 Plan?
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Elements of Fair Discipline Process
• Prompt, thorough, fair
• Objective
• Opportunity to be heard
• Don’t prejudge; don’t rush to judgment
• Compile as much “proof” as reasonably possible
• Document (and date)
• Save evidence
• Be a critical thinker – does the information support the conclusion/meet the
standards you need to prove
• Be patient
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How Should the Complaint Be Investigated?
Be mindful of:
Promptness
Neutral Fact Finding
Identify and Gather Relevant Evidence
FERPA and Confidentiality
Considerations
Document the investigation thoroughly!
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Check Yourself
• Do I have a clear understanding of allegation?
• Am I going in with a preconceived idea as to what
happened? Why?
• Do I have any idea “why” this happened?
• Has this happened before? Prior history?
• Who might have relevant information I need to talk to?
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Relevant Questions: Bullying/Harassment
• Was the student’s conduct harassment?
▪ Was it due to the victim’s race, national origin,
religion or disability? If so, conduct BOTH bullying
and discrimination/harassment investigations
(applying all relevant policies).
▪ Was it sexual harassment – Title IX procedures
needed
• What has been the impact? Does the conduct seem to
deny or limit the student's ability to participate in or
benefit from the educational program?
▪ In other words, has the school environment become
a hostile environment?
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What Does An Investigation Look Like?
• Who do you talk to (first)?
• What if the student is not in school?
• What evidence do you collect? How?
• Should I collect statements?
• Can a parent prevent you from talking to the
student?
• What should be documented?
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Investigating Cyberbullying
• Were school electronic devices used?
▪ On or off campus?
• What is the impact on the victim in school?
• Does the cyberbullying do any of the following:
▪ Create a hostile environment for the student at
school?
▪ Infringe on the rights of the victim at school?
▪ Substantially disrupt the educational process or
orderly operation of the school?
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Electronic Communications: Side Note
Electronic communications are the “Means” not the
“Conduct”
Address behaviors for their Content,
not their Form
Electronic Communications Give:
• Better Documentation
• More Widespread Distribution
• Adverse Effects are Greater
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How to Write a Summary/Report
If a report is needed:
Include findings of fact
Include a determination of whether acts of
bullying/harassment were verified
Include recommendation for intervention, which may include
disciplinary action
If NOT found to be bullying/harassment, still appropriate to set
forth supports/interventions as needed.
Avoid making legal conclusions
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Common Pitfalls in Investigations
• Failing to be prompt
• Missing class-based harassment red flags
• Failing to follow appropriate complaint
procedures
• Not communicating with parents/sharing
findings of the investigation
• Prejudging/incomplete investigation
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Remedial Actions
Vary widely as bullying/harassment takes many forms, but at minimum, MUST:
Develop an
Inform Hold a
Parents Meeting Intervention
Plan
• Other possible remedial actions:
▪ Implementation of positive behavioral interventions and supports process
▪ Discipline
▪ School-wide seminars/presentations
▪ Counseling
▪ Adequate adult supervision of outdoor areas, hallways, the lunchroom
▪ Inclusion of grade appropriate bullying education and prevention curricula
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Interventions for Victims of
Harassment/Bullying
• Intervention strategies for a harassed student may include:
Counseling
Increased supervision and monitoring to observe
and intervene as appropriate
Encouragement of student to seek help when
victimized or witnessing victimization
Peer mediation, where appropriate
Student safety support plan
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Decision Making
In making a decision about discipline, consider:
Do I have all the facts?
Is a manifestation determination needed?
Is there need for referral?
Is a risk assessment needed?
How do facts match up to policies and rules?
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Decision Making
In making a decision about discipline, consider:
Age, grade, developmental stage
Severity of misconduct (frequency, intensity)
Discipline history
Pattern and intent
Culture and communication factors
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Decision Making
In making a decision about discipline, consider:
Standard for removal, ISS, OOS, Expulsion
Legal restrictions on OOS Suspensions
District responses in other similar cases
Is response discretionary or mandatory?
Are alternatives available that might be effective?
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Questions?
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