Death to the Single Investigator Model…Long Live the Single Investigator Model

Navigating the NPRM Blog Series - ATIXA
Navigating the Notice of Proposed Rulemaking (NPRM) Blog Series by ATIXA

By Brett A. Sokolow, J.D., Chair: TNG, ATIXA Advisory Board, NABITA Advisory Board

The “single investigator model” describes a practice by which a single individual investigates allegations of misconduct and the same person also makes the final determination of whether policy was violated. This model became somewhat popular in the wake of the 2011 OCR Dear Colleague Letter on Title IX and sexual violence, but it was never applied as widely as its detractors claim.

The main criticism of the single investigator approach is that the same person serves as investigator, judge, and jury. I am loath to describe the approach as the single investigator model, as the use of the term “model” implies that it’s a valid approach amongst other reasonable models. Perhaps it may be valid in corporate HR-based investigations, but not in any school or college environment, where contract terms, covenants of good faith and fair dealing, and due process rights may apply. In its purest form, when the investigator both investigates and makes a final determination without affording an appeal, I would not call this a model at all, or recommend that any school use it.

However, as noted above, the pure form of the approach was infrequently used, and was often coupled with a hand-off to an administrator to affirm the outcome. There are also variations on the model where the investigator recommends an outcome that could be contested through a hearing and/or appeal. In any model in which an appeal is available, the single investigator approach by definition implicates an additional decision-maker to review the determination after the investigator makes it, thus making the single investigator description inaccurate.

Regardless of its relatively infrequent adoption, the Trump administration targeted the single investigator model with the 2020 Title IX regulations, and by requiring a live hearing before a decision-maker who was not the investigator, effectively killed the single investigator approach for sexual harassment complaints. Now, the proposed Biden Title IX regulations quite clearly permit the return of the single investigator approach, unless a state statute or court decision imposes more formal due process requirements. Those regulations will likely take effect sometime in late 2022 or early 2023.

The purpose of this Tip of the Week is to review the single investigator approach and its relative merits and demerits. Those who criticize the single investigator approach do so because they feel that it produces more biased and less accurate outcomes than models that involve more rigorous due process. I use the word “feel” intentionally, because there is no data at all that shows whether decisions by a single investigator are more or less accurate than decisions made as the result of the use of any of the other models (e.g., the panel hearing model). So, opponents of the single investigator approach oppose it on principle, and on the assumption that a previously uninvolved decision-maker is inherently more objective than the investigator who investigated the complaint. Again, there is no empirical proof for that belief, but it runs deep with due process proponents because it is reflective of the separation of roles in the criminal justice system, where different individuals serve to investigate and prosecute, and still others separately serve in the roles of judge and jury.

Proponents of the single investigator approach cite its efficiency and the economy of staffing that results when one person plays multiple roles. For some smaller and less-resourced schools and colleges, the single investigator approach may be the only approach their resources will allow. That doesn’t make it more fair or less fair, it just makes it more feasible than other models. I’ve long contended that an investigator-based decision or recommendation can have advantages, mainly that it places in the decision-maker role the individual who is most familiar with the facts of the complaint, having investigated them, and gives the investigator an opportunity to observe the demeanor of the parties and witnesses over time, which a hearing officer or panel cannot do. Having a panel of separate decision-makers get up to speed on what is often a complex set of facts may bring value from the independence of the role, but it may decrease the accuracy of the decision simply because the decision-makers are not nearly as familiar with the key facts as the investigator would be. So, fairness cuts both ways. The single investigator approach may produce less accurate outcomes when the investigator is biased. The single investigator approach may produce more accurate outcomes when the panel is biased, or when the panel is not as familiar with the facts as the investigator would be. Thus, there is no inherent better/worse calculus to the various resolution models. There are simply trade-offs and varying potentialities with each.

As I’ve noted in many other forums over the years, good decisions on Title IX complaints result from good training, expertise, and objectivity. Those good decisions can be made by investigators or by independent decision-makers. I have seen investigators screw up and make bad decisions. I have seen Title IX coordinators screw up and make bad decisions. I have seen single hearing officers screw up and make bad decisions. I have seen hearing panels screw up and make bad decisions. I have seen appeal officers and panels screw up and make bad decisions. No model is immune from the potential for bias and for low-quality decision-making (decisions that don’t comport with the facts/evidence). Proponents of expanding due process protections often point to the criminal justice model, but data shows that we still have significant error rates in criminal proceedings. Prosecutors engage in misconduct. Jury tampering happens. Judges make bad decisions that are overturned on appeal. Investigators ignore critical evidence. There is no basis to conclude that the criminal justice system produces more or less accurate outcomes than administrative Title IX proceedings.

So, it all comes down to training, expertise, and objectivity. The model isn’t the most salient variable if the goal is the highest quality of decision-making. When the investigator has the requisite training, expertise, and objectivity, they can make high-quality decisions. When an independent decision-maker or panel has the requisite training, expertise, or objectivity, they can make high-quality decisions. The trappings of live hearings and more formal due process may offer some guardrails to keep decisions from jumping the tracks, but there is no amount of due process that is going to cause a biased decision-maker to make an unbiased decision. There is no amount of due process that is going to cause a fairer outcome when the decision-maker is poorly trained.

Would I ever endorse a single investigator approach? No. I’ll recommend it when a school has such limited staffing and resources that there really is no other choice, but that should be the exception, not the rule. OCR may be opening the door to resurrect the single investigator approach with its draft regulations, but that doesn’t mean schools and colleges won’t be sued for using it. They will be. Where live hearings are mandated by state law or court decisions, schools will need to provide for live hearings. Could the investigator serve as the decision-maker in the live hearing? Perhaps, though it creates a risk of lawsuits, and when that question is litigated, some courts in some jurisdictions will likely impose a requirement for independent decision-making. Could an investigator serve as one decision-maker on a panel of three? Perhaps. Again, future litigation will test the fairness of this approach.

What is ATIXA’s recommended model for decision-making in those jurisdictions that don’t require live hearings? We recommend that well-trained, experienced investigators make non-binding recommended findings and final determinations, that are then passed to a Title IX coordinator or other administrator for final review and implementation. That decision-maker could engage in additional fact-gathering as needed, including meeting with the parties and witnesses, if necessary. We also feel strongly that a robust appeal for all parties should be part of any fair model, thus the pure form of the single investigator approach (without an appeal) is never fair enough. This has long been ATIXA’s position, regardless of the variations in federal guidance and regulations over time.

While the debate on models will rage for many years to come, we hope it will come to be informed by clear data demonstrating what approaches produce the most accurate and reliable outcomes. Due process is, and always should be, balanced against other interests, such as administrative capacity, process efficiency, barriers to access, etc. As a professional who has conducted thousands of investigations and overseen hundreds of hearings, I can’t tell you that one model is more or less error-prone than others. People make decisions, and people vary widely in their skills and capacities. Thus, instead of hyper-focusing on the model, I suggest that we invest in making sure that schools employ or contract with decision-makers who have the requisite expertise, are very well trained, and are capable of the highest levels of objectivity that result in unbiased determinations.

Read more ATIXA Tip of the Week blogs here.