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Upon receipt of a concern, complaint, or rumor, a school district must conduct a timely, comprehensive, and impartial investigation. The investigation should be well documented and may include notices, transcripts, documents, and/or an investigation report. Failing to investigate concerns, complaints, and rumors properly can result in continued harm to students or staff and costly legal settlements or jury verdicts. Thus, it is important that all concerns, complaints, and rumors are taken seriously and responded to adequately.
Receiving a complaint
Concerns or complaints may come from students, staff, parents, or members of the public and they may be received verbally (i.e. in-person or by phone) or written (i.e. email/letter). It's important to be prepared for how to handle and process complaints so they are properly recorded and promptly and thoroughly addressed. All complaints should be directed to the case manager for your school, which is often the school principal. A problem arises when a staff member receives a concern or complaint but does not inform the case manager, resulting in not logging that concern or complaint in the school or district's centralized record-keeping or tracking system, not conducting a thorough investigation, and the case manager being unaware of patterns of behavior.
To best prepare, school administrators should be familiar with their policies regarding investigations for sexual harassment, misconduct, bullying, and discrimination - and put systems in place to follow them. Each of these policies has different requirements for notice, investigations, and the appeals process. You should discuss a system for record-keeping – where will concerns and complaints be documented? Where will investigation files be documented? Failing to properly follow your district policy and to keep a paper trail of concerns and complaints and their thorough investigations can result in legal liability.
Who Should Investigate?
Ensure that the person handling grievances is well-versed in their duties. Under Title IXRegulations, an investigator must complete 8 hours of training and participate in follow-up sessions. Other policies typically note that an investigation must be conducted by a "trained investigator." Investigators should be able to create comprehensive reports that concisely articulate their findings while also maintaining confidentiality in all matters. These characteristics are essential in resolving both simple and complex cases of harassment, discrimination, or bullying.
Thorough Investigations
A thorough investigation will involve an investigator gathering statements and facts, interviewing the complainant and respondent, interviewing witnesses, and creating a summary investigation report. A decision-maker will then assess the facts presented and make a determination on whether a policy was violated and what interventions should be taken if any. Lastly, an appeals officer will provide notice of appeal, and if either party disagrees with the initial outcome and it meets the grounds for an appeal, a newly written determination of results will be made. To summarize, the five stages of an investigation include:
Gathering relevant information
Searching for any records or evidence that may be helpful
Writing a detailed investigation report based on these findings
Writing the decision-maker report/deciding if a policy was violated or not
Taking the appropriate follow-up actions.
Before beginning any investigation, there are eight key points to bear in mind. These initial considerations will ensure that the investigative process is conducted according to legal standards.
Respond promptly to the allegations of wrongdoing.
Notify all involved parties of the investigation.
Maintain a secure record of the investigation.
Ensure that interviews are conducted in an appropriate setting for confidentiality and privacy.
Examine all relevant documents pertaining to the case.
Follow the organization's existing policies, rules, and regulations.
Seek input from the relevant faculty members such as school administrators, teachers, and coaches.
Do not limit interviews to just the complainant and the alleged perpetrator/respondent.
It is essential that the investigation process include more than just interviews with the complainant and the respondent. Consider all aspects of the case, even if the facts presented are uncontested.
If you suspect abuse of a minor or that a crime has occurred, it is essential that you alert the police and/or child protective services. However, involving law enforcement or child protective services does not relieve the school district of its duty to also complete an investigation. School administrators must conduct their own internal investigation to determine if a policy has been violated or a hostile environment is present. These separate investigations should be navigated in collaboration with law enforcement and social services.
Interviewing Essentials
An effective investigator must possess strong management abilities, as well as a sensitivity to the issues surrounding harassment and bullying. They should be non-judgmental when gathering facts and have the skill to conduct interviews in potentially delicate situations. Prior to conducting an interview, an investigator should get written statements from the complainant and respondent, and all witnesses. This helps to ensure that you have each person's account of what happened in their own words and will help to identify questions that need to be followed up on. Interviewing can be likened to a sport or a form of communication requiring finesse and expertise. To reach the pinnacle of success, it is crucial to learn the fundamentals and then hone those skills by practicing them repeatedly. Keeping up with the basics will lead to a polished interviewing style.
Preparing for the Interview
Before an interview is conducted, it's important to have a clear understanding of the goals of the interview as well as any relevant information or materials that may be needed. Draft an interview protocol prior to your interview.
Conducting the Interview
When conducting an interview, it's essential to maintain a proper demeanor in order to create a comfortable atmosphere where witnesses or participants feel respected and secure in providing accurate information. This includes building rapport, being non-threatening, and staying emotionally connected while remaining factually objective. Begin interviews by explaining the purpose and use of the interview. Next, ask background questions to help "break the ice" with the interviewee. Throughout the interview avoid leading questions and do not paraphrase.
Investigators need to gather the facts about what happened including questions about the 5 senses. If a clear picture of the incident is not provided, clarifying or probing questions need to be asked such as "tell me more about that", "can you walk me through" and "what did you mean by". Investigators should also ask questions about the impact and the totality of the circumstances. For example:
How did the remarks /actions affect you?
When you say you were upset, can you explain what you mean by upset?
How did you act afterward? Did you experience any change in behavior?
Did you miss any school days?
Have your studies/duties or school/work-related activities been affected? If yes, how?
Include the context/totality of the circumstances
Has it happened before
Who witnessed it?
Have they been trained on it before?
Did they tell anyone?
Analyzing Each Interview
After completing an interview, properly record and document the interview and then adequately analyze all information obtained from the interviewee in order to summarize the facts and identify any next steps.
Document Collection
A thorough investigation will include the collection of additional documents and tangible evidence. While no cases are the same, some documents to consider collecting may include:
Academic or performance records
Discipline or personnel records
Emails
Attendance records
Video surveillance
Electronic/web content
History or conflicts or problematic behavior
Police report
Medical information
Environmental scanning
Environmental scanning involves surveying and interviewing a group of people regarding the environment in which they go to school, take classes, or work. This could include asking about their perception of the climate and atmosphere at the site. It is important to not directly question individuals about any incidents under investigation or persons involved; instead, you should ask general questions like how people feel about school and if there is anything that makes them uncomfortable.
If someone brings up any issues related to bullying or harassment, then you can probe further with appropriate questioning techniques. An example of a question when conducting an environmental scan could be: "What have you observed to be the overall atmosphere in this school/workplace?" This will help you gain insight into how people feel about their environment and if there are any potential issues.
Reporting - Putting it all together
An investigation report summarizing the facts gathered from the interviews, documents collected, and environment scan is the last, but most important step of an investigation. The report should clearly describe the facts of the case, but not make a decision about if a policy was violated. If it is a Title IX case, the investigation report should be shared with both parties for inspection and review and allow 10 days for a response. A separate decision-maker will draft a written determination that outlines the rationale for the findings and is also shared with both parties. All evidence and reports should be filed and documented in the school district's centralized record-keeping or tracking system. While current Title IX regulations require keeping investigation files for 7 years, we recommend keeping investigation files indefinitely because many civil cases are not filed until decades after the abuse took place. McGrath Training Solutions is a trusted partner for hundreds of educational institutions in the US and Canada. We can help train your investigators on how to conduct prompt, thorough investigations of concerns and complaints and how to have an effective documentation system.
We are here to help your district stay compliant and reduce potential harm and liability. Sign up today. The McGrath Response System provides an intake and investigation system with forms and tools to guide your investigators.