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Prevention and Protection Episode 34 Transcript

Host: Hello and welcome to Prevention and Protection, the United Educators (UE) Risk Management podcast. Today’s guest is Jody Shipper, managing director at Grand River Solutions, a consulting firm providing support to schools with all forms of equity work ─ from conducting investigations and hearings to filling in for or providing direct support to Title IX and EEO directors whenever there is a gap. Jody is joining Heather Salko, senior risk management counsel at UE, to discuss conducting remote Title IX investigations during campus closures related to the COVID-19 pandemic. Before we begin, a quick reminder that you can find other UE podcasts and general risk management resources, along with resources related to COVID-19, on our website, edurisksolutions.org. This and all other episodes of Prevention and Protection are also available on iTunes. Now, here’s Heather.

Heather Salko: Jody, thank you so much for taking the time to join us during what is a difficult time for everyone, the COVID-19 pandemic. It’s tough, including for our UE members, and so we do appreciate you sharing your expertise on this important topic. Let’s focus today on the issue of how to best conduct Title IX investigations while campuses are closed and the majority of student and employee populations are working and learning remotely.

Jody, let’s just start out quickly. We know that the obligations regarding protecting students from harassment do not stop just because people have moved physically off campus but are continuing to learn online. And therefore, the related Title IX investigations should also continue. Some institutions seemed, at least early on, a little bit panicked by the prospect of completing an investigation, perhaps one that’s already begun on campus, but perhaps one fully from start to finish, entirely remotely. What would you say to that?

Jody Shipper: There are definitely some technological hurdles to figure out. That’s for sure. There are a number of video conferencing services and so you’d need to work, any school, with their IT people, to make sure that they are using the one that best works with the systems or the suite of systems they already have. And depending on your community, because every campus community is so different, you might also need to think about how to help people become comfortable with using video conferencing. Although a few have had a really seamless transition, I [don’t] know of many. And then it’s not just the interviewing, but how are you going to do things like evidence review. If you’re thinking you’re simply going to email out what is very sensitive information, I encourage people to think about other ways they might do that using some of the more secure servers that enable them to share everything that needs to be shared just as you used to do it before, but in a really secure manner. So there are a number of hurdles that schools need to think through.

Heather Salko: Okay. Then if schools have thought through these hurdles and they’re prepared technologically, what should they do if their Title IX policy doesn’t explicitly address something like a remote interview? Should schools be doing something to change their policy before they go ahead? Or do they just need to memorialize in some way their new procedure and the reason for the change?

Jody Shipper: People need to remember that many have done remote interviews in other situations. If a student was abroad, if a witness or a participant couldn’t come to campus, this might not actually be the first time a school has done a remote interview. Unless your school policy specifically states that all interviews will take place in person, you’re really not changing your policy. You’re simply effectuating it differently. It can be really helpful to make sure that everyone, both participants and the investigator, have some training on or information about how this will take place. It might be an FAQ or a similar explanation, thinking through how you’re going to handle things like failed connections and what are those expectations for where people will conduct those interviews. What if someone lives in an environment where there are a lot of people in a small space? How are you going to handle those things? So these are all parts of how you effectuate your policy, but you shouldn’t actually be changing your policy unless, of course, your school policy specifically states it will take place in person. You want to be giving everyone all of the same process that you’ve already been giving them and simply effectuating it a little bit differently given the times that we’re in.

Heather Salko: Okay. That’s very helpful. Let me just ask a quick follow up then. What kind of notice should be given to the parties, and should you be giving it to both of them at the same time? Just an email, saying we will be doing all interviews remotely, or something like that?

Jody Shipper: I think it’s really important to let people know that you will be continuing on and to give them information as to how you’ll be doing it. I’m finding, and a lot of my colleagues are finding, that when we simply say, ‘Oh yeah, we’re going to continue doing this through remote technology,’ it causes an immediate pushback unless you’re explaining more details about how you’re going to handle things, that people can still take a break, for example, to speak with their advisor or support person and that they can mute themselves and, by the way, reminding them that they should mute themselves and take themselves off video and then turn it back on. Thinking through all of the parts of the process and then letting them know that you have thought about it and this is how you’re going to proceed. People need information, especially in anxious times like these. And so what will you do if the connection drops? What will you do if there’s poor Wi-Fi? What are you going to do in various situations? And some kind of notice to them that’s not just, ‘We’re continuing on, trust us,’ but something that has a lot more helpful information, I think, is really important at these times.

Heather Salko: Great, thank you. Like you, I’ve heard some anecdotes that some accused students who are involved in an investigation are objecting or raising an objection to participating remotely because they fear they may not have access to their advisor of choice or that this will somehow paint them in an unfair light. Do you have any tips beyond what you’ve said to schools on how to proceed if they encounter an objection from an accused student?

Jody Shipper: It’s really important to have a conversation with them of some sort to communicate and find out what the real problem is. Maybe they actually don't have good Wi-Fi where they are. This might require some brainstorming with them. Maybe they’re afraid that being on video will expose how they live. So this might also take some conversation with them and making sure that also no one is judging, and this applies not just to respondents but to complainants and witnesses and everyone else. Maybe helping them understand that they can put up a fake background on certain technologies, and do you want to be encouraging or allowing people to do that?

But certainly some fear they won’t be able to connect with their advisor during a break. I think you really need to talk them through ways they are able to do that and how they will request a break. Every technology has slightly different mechanisms; make sure that also the person doing the investigation understands how that can happen and has really communicated that well with the person being interviewed. You know, this idea that people will come across poorly because they’re being interviewed remotely, everyone is being interviewed remotely, and so no one is being advantaged. I have heard some say, ‘Well, the complainant’s already met with an investigator in person before we all moved to remote access, and so they had some advantage.’ And I would say to that, ‘Investigators, good investigators, as always, need to be neutral. There should not be any bonding taking place during an interview, and no interviewer should be engaging in any kind of connecting with somebody on that level.’ Ensure people that, ‘We’re really looking at the evidence. We are looking at the testimony provided, and we are not looking at the kind of person you are, because that has never been a part of the process. So someone who comes across well isn’t a factor here. If someone is worried that they’re very charismatic in person and less so remotely, that would never have been a factor anyway.’ It’s really important to talk to them and communicate with them to really figure out what’s at the heart of it. But of course, there are some who are simply hoping to use this as a reason to delay the entire process. And at that point, you also need to have communications with them about what it will mean if they choose not to participate.

Heather Salko: Okay. Similarly, although in a slightly different vein, what if the complainant doesn’t want to participate? Perhaps now because they’re living at home and maybe they have not told their parent or housemate what’s happened to them and they fear that their situation could be exposed in a way that they didn’t want to happen. Do you have any tips on that and similarly also with witnesses?

Jody Shipper: For complainants, and this could also very well have been the case with respondents, there isn’t a place where they can connect and not be overheard by parents or roommates or siblings or people whom they didn’t want to disclose this to. So again, talking to them about whether there are ways they can do this interview, is there. I’ve spoken to people who sat in a car to have a conversation with me. Not ideal, but that was where they felt most comfortable and happy to brainstorm with them how to make this happen.

Sometimes it’s a question of an investigator being willing to have an interview at a nontraditional time because maybe somebody knows that they’re going to be most comfortable speaking with an investigator while the rest of their family is having dinner and then they’re not going to be interrupted and that might be after normal business hours.

Is an interviewer willing to do that? I think these are times that call for us all to really be thoughtful and see if there is a way that we can help accommodate all of these special needs and not just complainants but respondents as well.

As for witnesses, sometimes the issue there is they’re unreachable because they didn’t understand that they would still need to be involved in this process. If a witness is currently unreachable, I think it’s important to do a little extra legwork and make sure they did get your messages and that they do understand that processes need to continue. So if you do all of your work emailing, maybe this is the time to try to reach out to them by phone and make sure that you’re doing everything that you can to really try and connect with people who might not realize why you’re reaching out at this time and might think that these weren’t emails they needed to pay attention to.

Heather Salko: Okay, that’s a fair point. So as investigations move forward, in your experience, what are some of the things that investigators should keep in mind now that they may be conducting the entire investigation remotely because they can be getting a brand new complaint today?

Jody Shipper: Absolutely. First of all, investigators need to pay attention to their backgrounds and environments. By the way, this isn’t just what an investigator sees when they interview someone. Just because we’re working remotely, students deserve, and this applies to employees as well, no less respect and formality. So you might have slippers on your feet, but you do need to be appropriately dressed and try your very best to avoid being distracted. I know everyone these days might have a cat or a dog who decides to make their presence known or a child who pops in, but I think it’s really important for investigators to do everything they can to show as much respect as they always would have shown in any of these processes when they were doing the work in person.

Another issue is to really make sure you can actually see the person you’re interviewing. If you’re taking notes and you have your computer pulled close to you, they might be looking up your nose. So let’s be thoughtful about how we come across as well. If you can’t see the other person, you might need to ask that they push their computer back a bit. Don’t be shy about that.

A couple other things that I’m hearing from investigators: some are really concerned that the person being interviewed might be getting notes or texts during the interview, or that a witness might be getting prompts. If you really think that’s going on, maybe ask them to push their laptop back a little bit farther so you can see their upper body somewhat.

The other part of this again goes back to how you’re going to share evidence. There’s some evidence that is just fine to email back and forth, but if it is something particularly sensitive, I’m not sure that you want all of that going back and forth by email. Really think through how you’re going to gather [evidence] and then how you’re going to have a meaningful evidence review process so that the parties can also be seeing all of the evidence that has been gathered as part of the process. These are all things to really think through before you start.

Heather Salko: Beyond just evidence, do you have any tips for our listeners on overall recordkeeping now that everything will be electronic and a lot of these will be, as you said, not telephonic but rather video interviews?

Jody Shipper: A couple things. First of all, some people have started recording now because it’s so easy with Zoom. I caution people, if you haven’t been recording in the past and you’re now doing it, then that is a change in your process. And are you going to continue doing that once we all return to doing our work in person, when we’re back on campuses someday? What are you going to do with this recording? Are you going to share it with each party? How are you going to do that? Are you just going to send it out? How are you going to store it? So these are things, just because you can hit a button and record it, I really encourage people to think about why they’re doing that and then what they’re going to do with this recording. Because once you've created it, you have an obligation and a responsibility to figure out what you're doing with it. And of course, to make sure anybody being recorded knows that they were being recorded.

Really great practices that people already should have been using are important here ─ taking really good notes and then sharing your notes back with the person whom you just interviewed to make sure that they can verify them. This adds to transparency and faith in the process and, quite frankly, if you’re going to do all of the work and gathering facts and making conclusions based on those facts and it turned out later that you had a completely incorrect piece of information because you didn’t have something verified, that can be a big problem later on. So all of these really good processes about taking good notes, having those notes verified, I think those need to continue and be part of your process. Making sure you understand how evidence came in, that’s always been part of the process. And that needs to continue.

One of the issues that we’re finding more of is people communicating by text with a party or with a witness now because it’s easy and you might have their cell number. You need to be saving those or screenshotting them and make sure that they are part of the file. There is a tendency now that we’re seeing for some people to become a little too informal. We need to remember that this is a formal process, and we need to treat it that way with our records and, of course, in all our interactions.

Heather Salko: Oh, great. These are really great tips. Before we wrap up, Jody, [are] there any other pitfalls that you might want people to be on the lookout for as they are doing these remote investigations?

Jody Shipper: As I said earlier, we need to remember that remote is not informal. That’s a big piece. You need to be following your policies, you’re just effectuating it differently. One newer concern that we’re hearing a lot about is people worried that others might be sitting in on an interview, that they might have a friend or an extra person or family support sitting there or roommates who never should have been hearing some of this sitting in and sort of hidden, and you don’t know that because they're on video. And so some are making a recommendation that you have interviewees take their laptop and sort of do a 360 spin around the room just to show there’s no extra people there. That can be a really great thing to consider.

But I really encourage campuses to think about doing that and know your community. It can also be a really invasive thing, requiring that people show how they’re living. If you have a case involving some form of dating or domestic violence or stalking, it can put the person being interviewed at risk of showing their environment. So you might want to have people show the room that they’re in using their laptop or phone or you might prefer to address it by giving additional admonitions at the start, in the middle of every interview, just reminding parties, anybody being interviewed, of your expectations for the fact that they are not having others sit in and that they’re not sharing the information. It’s a balancing of risks, and that’s one thing where I think it also warrants discussions with counsel. But one thing I don’t advise is to make that up as you go along and do something like that in a few cases and not in others. If it’s a practice you want to institute, then make it a practice that you’re going to institute ─ and think it through ahead of time or think about other ways you might be ensuring sort of the integrity of the investigation process. And this just goes back to what we talked about earlier, that this isn’t a time to make up all new processes and procedures. This is a time when you need to be following all of that and maintaining your rigor, but you’re simply effectuating it differently, as best as we all can.

Heather Salko: Great. Jody, that’s a great way to end our conversation, to just remind people to not deviate from their procedures and their processes. I want to take this opportunity to thank you once again for sharing your time and your expertise and want to know how people can find or follow you if they have any other questions.

Jody Shipper: Sure. So I’m part of Grand River Solutions. We're just at http://www.grandriversolutions.com, and you can also find us on Twitter. Our handle is @grandriversols. We send out occasional helpful tweets and we try, when we see other organizations and individuals with helpful resources, to send those out as well. And we have a few free tips and sheets and short webinars that are going up, just for free resources for anyone who might like to access them. And if anyone wants to reach me, I'm always available by email, jody@grandriversolutions.com.

Heather Salko: Great. Thank you so much, Jody. Have a good day.

Jody Shipper: Thank you. You too.

Host: From United Educators Insurance, this is the Prevention and Protection podcast. For additional episodes and other UE risk management resources, please visit our website, http://www.edurisksolutions.org.