An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

B. M AKE F ACTUAL F INDINGS

1. B ASIC F ACTUAL F INDINGS After gathering the relevant information, the investigator must make factual findings, and if requested, determine whether misconduct occurred in violation of the school’s policy. The determination of whether any school policies have been violated is typically made by the school, but in some circumstances, the school may ask the investigator to make that determination. Factual findings should:

 Address each factual allegation in the complaint or if there is not a written complaint, each allegation made by the complainant or another individual;  Identify any factual bases for any of the allegations;  Identify the absence of factual bases for any allegations;  Identify factual bases for any responses/counter-allegations raised by witnesses or accused individual; and  Identify the absence of factual bases for any responses/counter-allegations raised by witnesses or accused individuals.

2. B URDEN OF P ROOF There are different legal standards of proof. Investigators should make findings based on a “preponderance of the evidence” standard, also called the “more likely than not” standard. That is, “the investigator is making a finding that it’s more likely than not that the conduct alleged occurred, or more likely than not that the alleged conduct did not occur.” 1962 This standard has also been described as “fifty percent plus a feather.” 1963 The higher standards of proof, such as a “beyond a reasonable doubt” standard and a “clear and convincing” standard, are typically not used in investigations of workplace or student misconduct. The DFEH Workplace Harassment Guide addresses the standard of proof to be used in making factual determinations and explains:

Investigators should make findings based on a “preponderance of the evidence” standard. This is the standard that civil courts use in discrimination and harassment cases. This standard is also called “more likely than not” – the investigator is making a finding that more likely than not that the conduct alleged occurred, or more likely than not that it did not occur. Some workplace investigators make the mistake of applying a higher burden of proof, such as a “clear and convincing” standard or a “beyond a reasonable doubt” standard. Beyond a reasonable doubt is the standard used in criminal law, where a defendant is considered innocent until proven guilty and the consequence of guilt is a loss of freedom. Applying such a standard in a

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 469