The FLIPP! Methodology – Freeze, Leave, Implement Policy and Procedure
The Absolute Best Way to Conduct a Title IX Sexual Misconduct Investigation, Guaranteed!
By Amber Maiden, CEO Alchemy Enterprises
May 29, 2016
Source: Alchemy Enterprise Website
Contents
Taking Care with the Reporting Party. 3
Taking Care with the Responding Party and Witnesses. 5
The Discomfort of Investigations. 6
Typical Destructive Reactions to Investigation of Sexual Misconduct 9
Implementing Policy and Procedure. 11
The Importance of Procedures. 12
FLIPP!
There are very effective and efficient ways to conduct sexual harassment/sexual assault investigations, and then there are not. Unfortunately most colleges, universities and many employers have no idea what these ways are. More often than not, what they do instead, are all the wrong things. This of course makes everything much worse. What to do? Alchemy Enterprises has got you covered. Review, and review and review once again the FLIPP methodology described below. An organization that implements this method correctly, can be assured that it has done everything in its power to correctly handle these sorts of allegations, once received.
I have many years of experience overseeing and conducting investigations using the FLIPP model; which is a model that I created to deal with work groups who were particularly resistant to participation in these kinds of investigations. All the information that any Title IX coordinator overseeing these investigation requires is contained in my FLIPP model.
FLIPP is an acronym for: Freeze, Leave, Implement Policy and Procedure.
So, to keep it simple, all you really need to do to investigate a Title IX complaint efficiently and effectively, is freeze the “crime scene.” Think Law and Order. How do the detectives always begin an investigation? They isolate physical evidence by examining and taping off the crime scene. After that, they begin to go about the business of identifying witnesses and suspects and doing whatever is necessary to secure the participation of these individuals in their investigation. A civil /administrative inquiry into allegations of inappropriate behavior at a company or a university is not exactly the same, but there are parallels.
Perhaps some individuals will need to leave the campus. Once that is taken care of, it is simply a matter of the university implementing its policies and procedures; which is much easier said than done, but that is the basic framework of FLIPP.
Freeze
Freeze, please. As soon as allegations have been received and a conversation has been held with the Reporting Party where he or she has determined how s/he would like to proceed, the University should issue a “freeze” notice as quickly and politely as possible.
When these types of allegations occur, emotions are running very high. Actions and behaviors around these allegations can quickly become very destructive. For those in compliance positions within the university, you need to think of these allegations as hot embers or tricky, potentially explosive devices. It is your job to ensure that the embers don’t spark and spread and the bomb does not go off.
Interactions with the Reporting Party should proceed, very carefully. If a Reporting Party has experienced what s/he believes to be a sexual assault that person will be traumatized and will need to be handled carefully.
Taking Care with the Reporting Party
As a general rule it is best to be very clear with the Reporting Party[1] as to what you can and cannot do for him or her, in whatever role you serve in as you take the complaint. Who will receive a complaint from the Reporting Party? It could be any number of faculty or staff employed the college or university. The person who receives the initial complaint usually will not be the Title IX coordinator at the University.
This is the reason policy dissemination and training on the school’s sexual misconduct and intimate violence is so important
When it comes to these types of complaints any faculty, staff member or administrator who is in any type of position of power at the college or university has a duty to listen to the Reporting Party’s complaint of sexual harassment, fairly and objectively – and to then ensure that the Reporting Party very quickly has access to the adequate resources within the college or university. You do not want to wait on this. Think of these sorts of complaints as hot potatoes. Remember that game hot potato? You do not want to be caught holding it, because if you are, you lose.
Typically an investigator or an intake officer will be the first real official point of contact for a Reporting Party. The investigator or intake officer should explain to the Reporting Party very clearly that he or she is not the Reporting Party’s advocate, but rather, an independent unbiased fact-finder who will simply take the Reporting Party’s statement in order to begin the process of investigating the complaint the Reporting Party has brought forth
The Reporting Party has a variety of options he or she can pursue with regard to reporting an incident of sexual harassment, sexual assault and intimate violence. If the incident rises to the level of a crime, the Reporting Party has the option of reporting the incident to the local or campus police. If the Reporting Party has concerns about his or her identity being revealed, they may request to remain anonymous, but at the same time, this will cause difficulties with regard to investigating the complaint, and the Reporting Party should be made aware of this.
In many cases what a Reporting Party will want is to remain anonymous, but at the same time, will insist upon some corrective, remedial action to be taken to ensure that the same thing does not happen to the Reporting Party again or to another individual. This can be very difficult for the University to accomplish, but there are ways to go about this. What is key is timely responsiveness to any and all complaints. This shows that the University culture takes these sorts of complaints seriously. This will impact on student behavior.
The University’s Title IX coordinator has a great deal of responsibilities with regard to the Reporting Party, as it is his or her job to ensure that the Reporting Party is receiving everything that he or she is entitled to in the way of resources: counseling, housing, addressing safety concerns, addressing classroom accommodations, etc.
Putting in the time communicating with the Reporting Party very openly, honestly and directly about what faculty and staff can and cannot do, goes a long way toward eliminating future escalating problems with the Reporting Party in the future.
Most people who report these kinds of complaints want to be heard and treated fairly, and to take some kind of action to ensure that whatever is being complained about does not occur again.
There are many avenues that a complainant may decide to pursue, with regard to their allegations, from seeking counseling, to reporting the incident to the Title IX Coordinator.[2] Most seriously, a Reporting Party may decide to report the incident to the campus or local police. While the University is in the process of assisting the Reporting Party in pursuing whatever avenue of redress s/he feels is most appropriate, a Freeze notice should be issues to all involved parties.
The Freeze Notice
What’s a Freeze notice? A freeze notice locates all involved parties and requests that they freeze – so to speak- until the university can decide the best way to proceed with the investigation into the allegations. Freezing is crucial. Think of it this way, these allegations, when received, however they are received, are hot. It is the University’s job to cool them down. A lot of organizations believe the best way to cool the allegations down is to simply ignore them. This is a mistake that almost always has negative repercussions.
During the freeze process you have two concerns: evidence and people. It is important to quickly secure any physical evidence that is allegedly involved in the allegations of sexual misconduct. Evidence can be things like images on social media, clothing, objects or notices that are being used to harass individual, images of bruises, cuts or physical harm done to a person’s body, anything that indicates a crime may have been committed.
If the University is in receipt of or has been given notification of the existence of such evidence, it is probably best to involve the campus or local police in the investigation of the issue.
Taking Care with the Responding Party and Witnesses
But beyond the evidence, you have to consider the people who are to be involved in the oncoming investigation and what their typical reactions are going to be. I can tell you, from years of experience; most likely their reactions are not going to be pleasant.
The degree to which the university is prepared to deal with these kinds of reactions from respondents and witnesses greatly influences how successful their internal investigations will be.
Typically, individuals who will be in receipt of a freeze notice are the witnesses initially identified as well as the Responding Party[3].
It is very important, in this freeze notice, to inform all involved what the expectations are with regard to their participation in the impending investigation. The most important expectation is really that investigation participants freeze. This is to say in lay man’s terms, chill out, calm down, not react emotionally and wait for further instructions.
The Discomfort of Investigations
Have you ever been investigated? I have. It was a very interesting experience for me. Having a significant background in conducting and supervising EEO investigations, I typically find the experience to be very routine. I know what to expect. I know what to do at each stage. I know all the correct questions that should be asked. I know the applicable laws that must inform the manner in which the investigation must be pursued.
But during one particularly bad sexual harassment investigation (this was a case where, I had decided to bring in an independent investigative firm due to the severity of the allegations and the multitude of complainants and witnesses involved); I was called into the investigation as a witness. I was shocked. This had never happened before in any of the other investigations that I had overseen by outside firms.
What to do? Well, I certainly could not place myself above the organization’s EEO policies and procedures around this process (policies which I had a hand in drafting and refining); and so I cooperatively participated in the investigation by scheduling a time to be interviewed by the investigator.
I have to admit, the investigator’s questions were very unsettling. Five minutes into the interview, I knew exactly where he was going with his line of questioning. It was clear to me, from the types of questions that I was being asked, that someone had implied or stated that I knew about the inappropriate sexual conduct within the organization and that I had not taken appropriate remedial action, when that conduct had occurred (which was, my job.) This was uncomfortable.
My reputation was on the line and I worked in a field where my reputation meant everything. I wanted everyone in that organization to see me as fairly and impartially implementing the EEO policies and procedures. It was clear to me now that at least one employee did not see me that way; and as a result my actions were being investigated.
And so, for the very first time in my career, the shoe was on the other foot. I was on the receiving end of allegations of acting improperly. It was very uncomfortable. My law degree and experience in this field has shown me how crucial it is to thoroughly document almost every interaction I engaged in with every complainant, respondent and witness, as well as the necessity of having policy and procedures in place that are consistently followed and fairly implemented for every single case.
Because I had such a strong track record in both areas, I was able to provide evidence that the allegations being leveled against me were unfounded, but yet and still, that was a very unpleasant experience. It was an enlightening experience, however, because it gave me a better understanding of how it feels to be accused of something that you may or may not have done. I realized that when that happens, it’s natural to become defensive.
The emotions that most people experience when participating in an internal investigative process are: fear, anxiety, defensiveness, distrust, anger, sadness, outrage, irritation, discomfort, disorientation, uncertainty, confusion, aggravation and even rage. It is rare that people are on a totally even keel emotionally, when asked to participate in these kinds of investigations, emotions run high. It is best for the investigator to acknowledge that and ask that people, try to put their emotions aside and simply answer questions raised in the investigation truthfully and to the best of their ability.
The Rashomon Effect
In the area of sexual assault, sexual harassment and intimate violence, the investigation is further clouded by the fact that what actually occurred intimately usually between two (but sometimes more) people is not often clear cut. These experiences are shaped by perceptions and subjective interpretation.
Years of investigation have made me a student of the Rashomon effect. The phrase derives from the film Rashomon, where the accounts of the witnesses, suspects, and victims of a rape and murder are all different. It is a very powerful film that certainly reveals the complexities involved in a third party trying to determine what actually happened between two people when a sex act that is deemed nonconsensual by at least one party has taken place.
In teaching this film to my students, I was astounded by the variety of interpretations that film watchers have in response to the film about an alleged rape and an alleged murder. In watching the film, different people see completely different things. As film watchers, we are all cast in the role of judge and jury, and yet, I know from teaching the film in literature classes, there is a tremendous amount of difficulty around getting a consensus as to whether a rape (or even a murder) actually occurred. All we know for sure, (and can agree on as a group) is that a man is dead. The rest of the story is so tainted by so many other factors; it’s very difficult to determine what has actually occurred. And, facts and incidents in these kinds of investigations are usually just as tainted. In a situation involving two people and no witnesses, rarely is all of the evidence going to provide a clear cut answer as to what occurred and who is at fault for the breakdown in communication that occurred around the lynchpin of consent or consensual behavior versus unwanted and unsolicited behavior.
The Rashomon effect highlights why the freeze notice is so important. Most people who are asked to participate in an investigation are not armed with an in depth knowledge of the investigation process, a law degree, the psychological complexities of the Rashomon effect and are afraid that they will not be able to defend themselves and/or their reputations against allegations that can have serious life altering ramifications. Quite honestly these fears are not unfounded.
Additionally, an individual against whom the accusations are being leveled may honestly believe that he or she has not engaged in any sort of wrongdoing, and therefore, will be very angry once notified of the allegations and impending investigation. Essentially, he or she believes that he or she is being lied about and this is a very unsettling experience for an individual, about to be investigated, understandably.
These investigations are very, very serious and if a university wants to be fair, not only to itself and its own legal liabilities, but the legal liabilities that can attach to a number of people who will be involved in the process to a certain degree, it is critical, to keep the investigation cool by issuing the Freeze notice.
The Freeze notice should explain what the process is and how the college or university community expects notified individuals to participate in the process. The Freeze notice should explain best practices for participation in the process, and should also outline and describe behavior that will ultimately be damaging to the investigation and process.
One type of behavior that tends to be irreparably damaging to these kinds of investigations is talking about it, outside of official channels. Talking about the investigation should be strictly prohibited, because talking about the investigation or allegations, while they are under investigation, leads to defensiveness, anger, misinformation – and that usually leads to erratic, irrational behavior that makes the investigations extremely difficult to conduct and contain. Think of sexual assault and sexual misconduct allegations as burning embers…remember they are hot, but they are not destructive raging fires, and yet they easily have the potential to be.
Typical Destructive Reactions to Investigations of Sexual Misconduct
When a freeze notice isn’t in place, you will have people purposely fanning the flames and blowing on these embers in an attempt to start a fire. They will believe that they are defending themselves, their colleagues, their peers, their students, their friends – whoever. But really they are engaging in seriously potentially destructive actions. Even when a freeze notice is in place, emotions run very high when these types of allegations surface, and for that reason, you may still have people stroking the embers. Even when they have been clearly informed about the behaviors that they should and should not be engaging in, with regard to the investigation, there are those who will try to start a fire. This is a defense mechanism. When this happens, the best course of action is to ask those destructive elements to leave the institution, until the investigation can be appropriately completed.
Leave
Sometimes, in order to go forward such that the investigation has integrity, it will be necessary to ask individuals to leave the institution or to seriously limit the manner in which they are participating within activities at the institution, until the investigation is over and a decision has been reached.
With employees, the typical response of most employers is to place the employee on administrative leave. (This is leave with pay, so that they employee is not harmed until the issue has been clearly investigated and a decision about the propriety of conduct had been made.) Employees are positioned such that, for the most part, unless there are contracts in place that provide them with greater rights, they really cannot decline to do what is asked of them by their employer.
However, when it comes to students, the issue of requesting one to leave is much trickier. With regard to students and allegations of sexual misconduct, the Department of Education requires that colleges and universities take interim measures to provide for their safety. This may require allowing the reporting party to leave the university, (if they so desire) while the university shoulders the burden of limiting the negative ramification and impact that this absence and departure will have on the student and her education. However, a student who has reported these allegations should not be forced to leave against his or her will, as that can clearly be interpreted as being retaliatory. Any requests for the reporting party to leave should be very clearly backed up by sufficient evidence of conduct that is in violation of student conduct codes, or the Freeze notice.
When the student is not someone who has brought forth the allegations (either a witness or a responding party, or a friend of the responding party) and the issue is being destructive to the investigative process – what is critical, once again, is the freeze notice.
If the expectations are clearly outlined in the freeze notice and a student ignores and disregards those expectations, after being clearly warned – in writing – that failure to engage in the investigative process as expected could lead to disciplinary action against the student- up to expulsion, then the student should not have sufficient basis upon which to appeal the decision to ask him or her to leave the campus.
However, and this is a really important however, if these terms were not clearly explained to the student at the very beginning of the investigation, in a freeze notice, then the University opens the doors to counter suits of sexual discrimination and other legal charges, by the student who has been asked to leave.
This student will probably believe that rights of some kind are being violated – and these are typically due process sorts of rights, but they can also file complaints of gender discrimination under the Title IX of the Education Act of 1972. The counter suits along these lines sort of point to individuals being assumed guilty without due process, simply because they are male and have been accused of sexually assaulting a female.
Once you get passed the Freeze and Leave components of FLIPP, you move on to what can be the simplest part of the process, or the most difficult. It depends on what kind of infrastructure is in place around your policy and your procedure, and whether or not the infrastructure that you have in place will permit the Title IX coordinator or a Title IX investigator to correctly implement the policy and procedure.
Implementing Policy and Procedure
Let’s begin with the policy. One of the simplest things any college or university can do is assign a Title IX coordinator to draft a Title IX Sexual Misconduct policy (which, if one follows the Department of Education’s recommendation’s regarding the policy, the policy practically writes itself.) So if I were a typical decision maker at a college or university, it might be tempting to believe that all a University need do, in order to be in compliance with the new Title IX recommendations and guidance with regard to handling sexual misconduct is, write that policy and posted on the internet where everyone can access it. Easy-Peasy instant compliance, right? WRONG.
The Importance of Buy-in on Policy from Stakeholders
You can write a policy all day long. You can post it on your website, twitter, Facebook, on every door in every hallway all throughout the campus. For the most part, all of that will have very little effect if there isn’t an implementation mechanism in place that somehow alerts key stakeholders on the campus, that the policy is important. This is critical. Key stakeholders must understand that this policy is important, and not just another piece of paper, competing with the thousands of other pieces of paper, that they are often asked to push from one side of the room to another, without interacting with it, or reviewing it in a meaningful way.
Most institutions have hundreds, if not thousands of policies that are addressing various parts of the institution’s operational procedures. Not every policy is important to every single employee or student. What is very important with regard to the Title IX, sexual misconduct policy, is that the correct stakeholders (who will have some responsible for seeing that the policy is implemented correctly) be identified.
Please note that the Title IX coordinator is not, I repeat, is not the only stakeholder responsible for seeing that the policy is implemented correctly.
Stakeholders are everyone who may encounter these sorts of allegations from students in a variety ways. Stakeholders could be, for example, all the members of the counseling center who encounter and counsel people around issues of intimate violence and sexual assault, student health practitioners who provide birth control and other reproductive health services, the coaches of student athletes who have been accused of sexual misconduct, the PanHellenic counsels at universities where there are strong Greek systems in place, deans and assistant deans at all of the very schools, need to be aware of and understand the policy, and at the very least, need to know what first steps to take if they hear about or receive such allegations. Certainly, vice presidents of student affairs departments need to have a number of people in their departments aware of the policy and knowing enough about it to push the appropriate information through the necessary distribution channels.
Having a policy in place, and even having it correctly distributed an understood by all of the appropriate stakeholders is still not good enough to ensure that your institution has the capability to run an effective and efficient sexual misconduct investigation. What is absolutely critical to running an effective investigation is having thorough, detailed and very specific written procedures in place regarding how these sorts of investigations will be handled.
The Importance of Procedures
At the beginning of every Title IX investigation, all participants should be given a copy of the college’s or university’s Title IX policy on sexual misconduct and intimate violence, as well as the procedures of the pending investigation. The more information that individuals have about the process, the more willingly they will be to participate productively.
What is the difference between a policy and a procedure? A policy is general guidance regarding certain rules, principals, concepts, ideas a college, university, employer, organization or government agency is attempting to implement. A procedure is the way in which the policy is enforced and implemented. A university’s Title IX policy should be a broad set of general guidelines that establishes a general framework for the university’s Title IX compliance efforts. It should provide information, for example, on what sexual misconduct, including sexual assault and sexual harassment is. As well as a definition that describes the far more complex intimate violence. The policy should also include the kinds of resources and remedies that are available to students who are in need of assistance and want to file a complaint with the university administratively or with the local or campus police.
The policy should also serve as reference material for key university stakeholders who need to understand how to correctly implement the Title IX policy. This becomes incredibly important when dealing with difficult, controversial and/or high profile cases. In these instances, the policy will serve as the reference manual that informs the difficult decisions that will have to be made.
The procedures used to implement the policy, work best when they are incredibly detailed and take into account the many obstacles (and there are several) that will typically occur when the university is attempting to implement the policy. Procedures provide structure and integrity to the process. Procedures, when implemented fairly and consistently, for every single case, ensure fairness and respect for the process.
Procedures are absolutely the most critical component of the Title IX investigation. A strong Title IX policy that is supported by a strong set of procedures will almost always result in a high quality investigation, that appropriate Title IX administrators and other college or university stakeholders can rely upon to make informed decisions about how to go about taking appropriate remedial action.
Because strong policy and procedures are so very critical to adequate Title IX compliance, Alchemy Enterprises offers policy and procedural review. We will evaluate how effective an institution’s policies and procedures are in terms of FLIPP methodology as well as other crucial policy requirements.
AE will rate the policy/procedures on an A through F scale, and provide insight into what the policy does well, as well as provide recommendations as to how policy/procedures can be improved.
Any institution that is serious about its higher education compliance should seriously consider, at a minimum, purchasing a policy/procedure review. Or, in the alternative, if the Title IX coordinator has the time, he/she can conduct the review. A good starting place for a review is comparing your institutions policy, to other comparable colleges of universities, as well as other universities in the area, as well as nationally known universities.
Through a Title IX policy review for one of my first clients, I discovered that Norfolk State University has a very impressive and well developed set of Title IX policies and procedures. If a Title IX coordinator would like to begin a policy review for their university, I’d recommend using Norfolk State’s Policy as a benchmark for excellence.
Well that’s about all there is to the F.L.I.P.P. methodology. Stay tuned, for information on AE’s Tr.I.P.P., S.I.P and B.I.P. methodologies.
Best of Luck in all of Your Title IX Endeavors!
[1] (In the area of Title IX compliance, the term Reporting Party is being replaced by the more traditional term Complainant. Objections have been raised that the term Complainant diminishes the seriousness and severity of the problems around campus sexual assault. In order to side-step these objections of bias Alchemy Enterprises, has decided to use the more neutral term of Reporting Party.)
[2] Please note that a report of sexual harassment, sexual assault, as well as many other types of intimate violence requires, puts the University on notice to a serious liability issue and requires some degree of action
[3] Typically, a university’s policy will refer to the individual against whom allegations have been brought or accusations have been leveled as the Respondent, Responding party or the Accused, however at because the term Accused has negative connotations, Alchemy Enterprises, has decided to use the more neutral term of Responding Party.)
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