You’re peacefully strolling across campus, reflecting on what a calm day it’s been, when a staff member with a concerned look on their face stops you. “We have a problem,” they say.
What follows is an allegation of student or staff misconduct. Perhaps it’s a violation of an internal rule, an anti-harassment policy, or even criminal law. If confirmed, the accused student or teacher would be subject to various disciplinary measures, ranging from minor sanctions to suspension, termination, and mandatory reporting.
Your day is suddenly less calm.
What happens next?
Some misconduct is straightforward and requires minimal investigation. A teacher comes to you and says, “I caught Rachel smoking a cigarette in the bathroom. She admitted to it and gave me the rest of her cigarettes.” The only question would be an appropriate sanction.
But what if, as so often happens, the story doesn’t end there? Let’s assume the teacher also tells you, “I heard a rumor that another teacher gave Rachel the cigarettes.” Before deciding on next steps, the school would have to conduct an investigation to confirm whether the allegation is true.
Fairness and due process
In public schools, employees and students are entitled to constitutional due process protections. Students and staff in private schools often have contractual rights to fair treatment. In either case, administrators must conduct unbiased investigations before imposing disciplinary measures. The accused must receive notice of the allegations, an explanation of the evidence, and an opportunity to respond and provide their side of the story.
"An investigation which amounts to little more than ‘going through the motions’ to justify a foregone conclusion does not pass the due process requirement of impartiality."1
You can use the following checklist to ensure your investigations are fair, unbiased, and thorough. Many school professionals will choose to keep a printout of this above their desk for quick reference.
Before the Investigation
1. If applicable, separate the complainant and alleged offender.
2. Decide whether to remove the alleged offender from the community while the investigation takes place.
3. Check if your organization has a policy to investigate student or staff misconduct. If a policy exists, be sure to follow it.
Begin the Investigation
1. Start a file to keep a record of the investigation.
2. Keep an open mind: Act fairly, don’t predetermine an outcome, treat all parties respectfully, and only draw conclusions that reasonably follow from the evidence.
3. Identify and gather all available documents and evidence.
4. Make a list of all relevant witnesses.
5. Make a list of questions. Ask open-ended questions rather than leading questions.
a. Good questions: What did you see? Who else was there? Have you seen similar behavior in the past? Anything else you’d like to tell me?
b. Bad questions: You think John did it, right? Did you see John harassing the complainant?
6. Interview the witnesses.
a. Have a third party present to observe each interview (subject to privilege considerations noted below).
b. Interview witnesses in a comfortable environment so they are calm and relaxed. If a witness has only been to an administrator’s office for negative disciplinary reasons, then the office is likely not the right location for an interview.
c. Speak with one witness at a time so each person’s views aren’t colored by the views of other witnesses.
d. Consider separating witnesses to cross-check statements, especially if you’re concerned that one witness might improperly influence another witness following the interview.
e. Consider whether a witness has a conflict of interest or any other reason to lie. Does a student’s statement exonerate the student while incriminating someone else?
7. Focus on eye-witness accounts of factual events, and try to ignore speculation: “I have a feeling it was John” is not evidence.
8. Summarize the interviews and add them to the investigation file.
Test witness claims and the investigator’s conclusions.
1. Visit the physical site of the event to look for evidence and test conclusions against physical realities.
2. Compare witness statements against the documents, other evidence, and statements of other witnesses.
Interview the alleged offender.
1. Ask them to present their version of events.
2. When presented with incriminating evidence and respectfully asked to explain, many people will simply tell the truth.
3. While deception is allowed when police and government officials interview the accused, it certainly raises ethical questions when working with students and has highly negative cultural implications for schools and summer programs.
a. Don’t claim to have security footage that doesn’t exist, don’t ask leading questions that presuppose guilt, and leave good-cop/bad-cop tactics to the police.
4. Especially when working with kids, the best approach involves building a relationship of honesty and trust, so they can be truthful and know they will be treated fairly.
Following the Investigation
1. Document your conclusions and the reasons behind them.
2. If the facts suggest that the accusation is accurate, then implement appropriate sanctions.
3. If the investigation shows that child abuse, neglect or a criminal violation took place, make sure to report it pursuant to mandatory reporting laws.
4. If the facts suggest that a legal claim is likely, then contact your attorney and insurance company.
5. If it’s a public institution and the facts suggest that the offender should receive a significant punishment (generally defined as suspension of 10+ days of suspension for students and termination of employment for teachers), then the accused can request a formal hearing.2
Who Should Conduct the Investigation?
For "small" to "medium" matters, ensure that your investigator is a competent and unbiased senior staff member who is an effective communicator, can keep a good record of the investigation, and will maintain confidentiality.
For significant matters, keep in mind the importance of attorney-client and work product privilege: When an attorney conducts an internal investigation, many aspects of that investigation may be privileged and not discoverable in litigation. So for investigations that may involve termination of employment, long-term suspension, potential violations of criminal law and reportable offenses, schools would be well-served to keep things privileged and hire an attorney.
For the smaller investigations, the checklist above will ensure that the investigation is fair, thorough, and leads to a just outcome.
1. Kaspari and Engdahl, Analysis of Investigation, Evidence, Communication and Implementation: Due Process Rights in Investigations, American Bar Association, November 8, 2007.
2. See John Dayton, Education Law 252-254 (Wisdom Builders Press 2012); and The Nuts and Bolts: How to Investigate Misconduct, Committee of School Attorneys (2015), https://www.nsba.org.