An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

misconduct is typically conducted when there is reasonable suspicion to believe a student has violated the school’s rules, code of conduct, or policies in the parent/student handbook, or has engaged in an otherwise wrongful act related to or impacting the school, its student, or employees. An investigation need not be conducted every time there is an alleged violation. Certain minor occurrences, where there is little room for dispute, such as an employee being tardy to work, or a student being late to class, do not call for an investigation, but should be documented and the employee or student should be notified of the violation. If these minor occurrences persist and there is an ongoing pattern, it may become appropriate to conduct an investigation, particularly where the conduct may result in discipline or non-renewal of employment. Investigations should also generally be initiated when there is a major violation of a policy or rule that may also result in discipline or non-renewal of employment, or where the school has an independent legal obligation to conduct an investigation, such as to protect students and employees from the type of conduct being alleged. For example, an anonymous letter claiming an employee has parked in the school’s “No Parking” zone typically would not justify an investigation. (But, the school should talk to the implicated employee about this.) Conversely, an anonymous letter alleging an employee in the school bookstore has been seen removing money from a cash register and putting it in his pocket should immediately prompt an investigation. If alleged misconduct involves harassment, discrimination, retaliation, or other illegal conduct including whistleblower retaliation, it is important that the school investigate and take prompt corrective action if warranted. Failure to conduct a prompt, fair, and thorough investigation in these circumstances could subject your school to liability under both federal and state law. B. W HEN T HERE I S A LLEGED O R S USPECTED H ARASSMENT , D ISCRIMINATION , O R R ETALIATION As part of a school’s obligation to take all necessary steps to prevent discrimination and harassment upon receiving a complaint or becoming aware of potential discriminatory, harassing, or retaliatory conduct, a school must investigate the allegations and not provide advantages to one side over another. 1920 The investigation must be prompt, fair, and thorough. 1921 The obligation to conduct an investigation is unequivocal. Case law establishes that once a school knows or should have known of possible harassment in the workplace, a failure to conduct any investigation at all may constitute an independent violation of state and federal law. 1922 Generally, a school must conduct an investigation anytime a complaint of harassment, discrimination, or retaliation is submitted, either formally or informally and either verbally or in writing. This is true even where the complaint appears to have no merit whatsoever.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 429