As OCR complaints and civil lawsuits continue to pile up against institutions, many colleges and universities are still searching for ways to further insulate themselves from liability in the Title IX process. One of the more popular emerging practices asks students to sign a form (or several) during the intake meeting, acknowledging that Title IX personnel have explained reporting options, potential interim measures, resources for support, and other important considerations.
From a legal standpoint, the practice seems sound. It clearly lays out some of the most important considerations for complainants before pursuing a formal investigation. It also provides respondents with actual knowledge of their rights rather than merely asserting that they have constructive knowledge of procedures that may be buried in some web page, handbook, or overwhelmingly lengthy document. These intake forms also provide a practical guide for Title IX personnel to ensure that important talking points are not overlooked during an intake meeting.
But in their quest for a legal shield, administrators should also bear in mind that the process exists to serve the students and employees of the institution and to create a truly safe space for reporting discriminatory conduct. Asking participants to jump into the quasi-legal process of signing forms during an informational intake meeting presents its own set of obstacles to that end.
Reporting an incident of sexual assault or gender violence is already an emotionally tumultuous process for survivors, such that rape continues to be a woefully underreported crime. After survivors of gender violence have summoned the courage to speak with administrators, asking them to initial and sign forms like they’re closing on a home loan may revive many of the reservations that they had to overcome in order to schedule the meeting in the first place. This request could also have an equally chilling effect on participation by respondents, forcing Title IX personnel to make determinations without the valuable information that a respondent’s perspective may offer.
A stock form and checklist also make it very easy for intake administrators to breeze through the list rather than have an authentic conversation about personal safety, reporting options, the investigative process, and resources for support. If done well, that conversation may take a different direction for each participant, based on his or her circumstances, and it cannot be captured in its entirety on a uniform checklist.
But where institutions believe that the benefits of asking for a signature are too essential to disregard, they may wish to consider incorporating the following measures in an effort to reconcile the competing interests at hand:
- Have a real discussion. While a form can be a great tool for guiding intake officers through the essential talking points, no form is an adequate substitute for a face-to-face dialogue. That discussion should be thorough, yet flexible enough to move in any direction necessary to address each participant’s needs and concerns. No part of the dialogue should be ignored on the premise that the signed form is deemed to be self-explanatory.
- Avoid “legalese.” Unfamiliar legal jargon and technical terms can be both confusing and intimidating. But when written appropriately, an intake form can be an extraordinary tool in helping participants unravel and decode complicated Title IX procedures. Use plain, simple language to give participants a realistic understanding of what to expect from the process. Where technical terms are essential, take advantage of the opportunity to define them.
- Address the needs of all participants. The knee-jerk reaction of institutions as they revamp their Title IX processes has been to focus on complainants, framing much of their Title IX literature around complainant FAQs and resources for support. Many intake forms exist for the purpose of ensuring that complainants receive this valuable information. But if you are asking complainants to sign an intake form, do the same for respondents and witnesses/interviewees. Also bear in mind that the needs and relevant resources may be different for each type of participant. Consider using different forms for complainants, respondents, and witnesses if necessary to adequately and efficiently address their respective needs.
- One signature is enough. Some intake forms request that participants initial each individual section of the form. The legal benefit of this practice, if any, is questionable in most jurisdictions. The detriment of such a practice is significant. The intake process should not be presented as being overly legal, nor should any part of it be written off or trivialized as a mere formality. Asking participants to initial or sign each and every provision opens the door to both. If a signature is essential, consider reducing it to a single acknowledgement at the conclusion.