An Administrator's Guide to California Private School Law

Chapter 12 - Investigations

Case Study The complainant, a waitress, alleged she was repeatedly harassed during the lunchtime rush at a restaurant. The complainant further alleged that the harassment occurred during the “constant flow” of waitresses and customers at noontime. The claim was rejected because no individuals came forward to support the allegations, which was unusual given the number of alleged witnesses to the harassment. 1968

C. M AKE C ONCLUSIONS O F P OLICY O NLY – I F D IRECTED T O D O S O It is very important for the school, from the outset of the investigation, to provide clear and specific instructions to the investigator about the following:  Whether the investigator should only provide conclusions on factual findings;

 Whether the investigator should also provide conclusions regarding violations of school policy and if so, which school policy or policies.

Typically the school will only ask the investigator to make conclusions on factual findings, not as to whether one or more school policy was violated. Typically, the Head of School or other designated high level administrator will read the investigation report and determine whether any policy was violated. If the investigator does not fully understand the school’s policies or how they are applied, the investigator may make erroneous conclusions about violations of policy. The school will then find itself with an erroneous investigation report that could nonetheless prove extremely damaging at trial. The school administration is in the best position to understand its own school policies and how they are implemented and to then review the factual findings in an investigation report and determine whether school policies were violated. There may be occasions where the school asks the investigator to make policy determinations. For example, where an internal investigator (school employee) conducts the investigation, it may be more appropriate for that internal investigator to make determinations as to policy. When the investigator is only to make factual findings, the instructions to the investigator should clearly state that and specifically state the investigator should not make findings as to whether any policies were violated. The school may consult with its own legal counsel as to whether any school policies were violated and, if so, take appropriate corrective action. Investigators should not make legal conclusions. The instructions to the investigator should also clearly state that the investigator should not make any legal findings or legal conclusions. The school may also consult with its legal counsel as to potential legal risks based on a review of the information gathered during the investigation

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 472