This document has been formatted for printing from your browser from the Web site of the Illinois Association of School Boards.
COPYRIGHT NOTICE -- This document is © copyrighted by the Illinois Association of School Boards. IASB hereby grants to school districts and other Internet users the right to download, print and reproduce this document provided that (a) the Illinois Association of School Boards is noted as publisher and copyright holder of the document and (b) any reproductions of this document are disseminated without charge and not used for any commercial purpose.
Illinois School Board Journal
May/June 2005
Should we look into that?
Legal, practical and effective standards for investigations
by Brian A. Braun
Brian Braun is an attorney with the firm of Miller, Tracy, Braun, Funk and Guenther. He is author of Illinois School Law Survey, now in its eighth edition.
Rumors of a weekend drinking party involving football players are flying around the high school. Someone calls the district office to say they've seen a high school teacher out on what appears to be a date with a girl in the junior class. A school secretary has been in charge of an activity fund, but the bills haven't been paid and no one can locate the money.
School officials are often called on to investigate allegations of student or staff misconduct. Sometimes the alleged conduct is relatively minor, and the expected consequences no more serious than a short-term suspension. At other times, a parallel criminal investigation could lead to an expulsion or a teacher dismissal.
While most school administrators probably do not relish the role of investigator, the role is one that "goes with the territory" and that demands certain knowledge and skills. Unfortunately, such investigations often raise thorny questions, both legal and practical. For example:
Where school officials truly wish to hold their investigations to high standards for legal and practical effect, here are some issues they need to address:
Investigate — yes or no?
When allegations of student or staff misconduct come to the attention of the school official, the question arises: Is this something we need to investigate?
The answer depends on whether the misconduct is both serious and school-related.
No matter how serious the misconduct, an investigation is not appropriate if the misconduct or its effects have no significant relationship to school. Attempts to regulate private behavior of an employee or student invariably run into constitutional roadblocks.
Confusion most commonly occurs when truly ugly behavior is reported (and school officials are appropriately outraged), but the behavior has no reasonable connection to the school program. Common examples are an employee engaged in an extra-marital affair, or a student who posts a non-threatening but unpopular message on a personal Web site. School officials cannot, without negative consequence, regulate purely private behavior. Regulation of such conduct is properly left to parents, spouses and/or police.
On the other hand, school officials may be tempted to skip their own investigation and rely entirely on law enforcement agencies when criminal acts are alleged. That is almost always a mistake where the misconduct is school-related. That is, the school district may find itself without options if, for example, the state's attorney decides not to prosecute and the district has collected no evidence to support any kind of disciplinary action. Evidence too weak to support a criminal conviction might very well be adequate for a student expulsion or employee dismissal.* It is up to the school official to gather that evidence.
If school officials elect to leave all the investigative work to the police or criminal prosecutors, they often will be left without evidence to discipline an accused student or to suspend without pay or dismiss an employee. In any case, when it is possible and practicable, school officials should obtain witness statements and gather evidence for internal school proceedings before law enforcement officials are notified to begin their investigation.
In very high profile cases, particularly when DCFS may be involved, this may not always be possible. School officials should be alert to the implications when deferring to criminal authorities rather than gathering evidence internally first. This issue should be discussed with the school attorney.
* A criminal conviction requires proof of guilt "beyond a reasonable doubt." Disciplinary action by a school district requires proof "by a preponderance of the evidence," a somewhat lower burden of proof than that required for a criminal charge.
Rights of the accused
Lawyers representing students or employees will examine every aspect of the process school officials used to build their case. Did a witness have an ulterior motive? Did the accused
understand the charges? Was the accused provided representation? Was the accused intimidated? Providing more due process rather than less is always preferable to prevent procedural defects. There is seldom harm done in providing a hearing even when none is required or in encouraging representation even when the accused rejects help.
School officials must recognize that every student and employee has rights that must not be abridged. For example:
School officials should expect that the accused will deny wrongdoing. In a criminal context, the accused is constitutionally protected against self-incrimination, and school officials should proceed in their investigations with this principle in mind and seek other evidence to build a case.
Removal from school
There is sometimes a desire to remove the accused from the school population quickly, perhaps even prematurely. An arrest is not a conviction, a charge is not a conviction and the accused is innocent until proved guilty. Moreover, school officials can rely on a criminal conviction to discipline only if a connection to the school program can be shown.
The down side of waiting for another agency to do its work is that there is often a long delay between the underlying events and a conviction or final disposition. Unless school officials collect their own evidence and provide the accused with due process, the wait in such cases is mandatory. This means that an accused student remains in the school population and an accused employee continues to be paid. (School officials may be able to place such an employee on paid leave.)
The school board
Although some high-profile situations may tend to drag school boards into investigations of misconduct, school board involvement in gathering evidence can taint the due process to which an accused student or employee may become entitled. That is, the board serves as the "jury" in an expulsion hearing, for example, a role that requires a certain degree of impartiality that is not consistent with the role of investigator or prosecutor.
The best advice from both a legal and practical standpoint is to treat any investigation of staff or student behavior as administrative work and keep the school board out of it. The board must allow the school administrator to move diligently and patiently without pressure to be in a hurry.
Also, members of both the board and administration should resist the urge to express moral outrage at even the most egregious misconduct. Overreaction may be politically satisfying, but it never contributes to a satisfactory resolution of the problem.
The school attorney
It will seem a little silly to call the school attorney every time someone accuses someone else of doing something they should not do. Probably a good rule to follow is to involve the attorney immediately if an allegation that proves true would most likely lead to an employee dismissal (or suspension without pay) or a student expulsion. Such penalties for misconduct represent extreme deprivations that must be based on clear and convincing evidence, and the perpetrators must be provided with some form of due process.
Also, the attorney should be consulted where an allegation is serious enough to suggest criminal prosecution. Even if the police and state's attorney are likely to become involved, interests of the school district need to be protected with an internal investigation that involves interactions with outside agencies.
Investigative techniques
Because so few school investigations result in disciplinary actions that are challenged, school officials can get complacent. That is, student suspensions rarely require school board hearings (the first level of appeal), and employee disciplinary cases are subject to challenge only when the discipline is so aggressive that either the employee or the union feels threatened or believes an injustice has occurred.
However, the bad habits school officials can develop in low-profile cases can lead to disastrous results in serious discipline cases. If sloppy investigation techniques are employed in a teacher dismissal or student expulsion case where criminal charges are involved, procedural errors can be the difference between success and failure.
Good techniques include the following:
Be thorough
Sometimes, school officials are in such a hurry to get to a conclusion that they forget they are "building a case" and overlook the value of being patient. Being careful is usually more important than being fast. Although school officials should gather evidence as quickly, thoroughly and efficiently as possible, it is appropriate to take a few days to be sure that the facts are as they appear and that evidence is secure. It is almost never possible to complete an investigation in the same day, although school officials often feel pressure to do so.
Secure the evidence
In gathering physical evidence, school officials should secure the evidence they obtain (seal it, mark it and lock it away). They also should maintain a clear "chain of possession." (As few people as possible should have access, and everyone involved should be available to testify that no one had an opportunity to tamper with the evidence.)
When the evidence obtained is illegal for school officials to possess (marijuana, for example) it must be turned over to the police. School officials should obtain a receipt for the evidence, make arrangements regarding its disposition, and obtain a promise that the official who picks up the evidence will be available to testify if a hearing is necessary.
Avoid discussions with the accused
When an allegation of misconduct is raised against an employee or student, the administrator's first impulse may be to talk with that individual. Unfortunately, that is often the wrong thing to do. Rather, getting "the other side of the story" from the accused should be the administrator's final step, not the first step. That is, before the accused is approached, be sure that all the available evidence is gathered and secured and all witnesses are questioned first.
Frequently, the accused will realize an investigation is ongoing and will seek to speak with school officials before they are ready to speak to him. School officials should rebuff such approaches because they are likely to create legal impediments without offering any real help in arriving at the truth.
The response should be: "We are investigating, but we are not ready to speak to you now. We will want to hear from you when our investigation of the allegations is complete."
For one thing, the accused often seeks clarification of the charges or seeks to learn what school officials already know or don't know. A careless response to these questions by school officials may imperil the school official's case.
Furthermore, information volunteered by the accused in an early conversation may be rendered unusable if the accused later alleges that statements were made without legal advice.
Time works to the advantage of school officials in another way. After the accused knows his behavior is being scrutinized, he will feel pressure and will often make mistakes. He will talk to a friend and an admission or a useful inconsistency in his "story" will be the result, or he will try to cover up the behavior and his cover up will be helpful to the prosecution of the case.
Provide for representation
When it is time for school officials to approach an accused employee for an explanation of the events, union representation should be secured in every case. Even if the employee rejects a representation offer, and even if the employee is not a union member or is not represented by a union, a representative should be involved.
If an employee rejects representation, the best course is to ask a union representative to sit in — not to represent the employee, but to observe the process and represent the union's position (protection of other employees) with respect to the proceedings. If the group to which the employee belongs is not unionized, then a representative from another union (the teacher's union, for example) should be solicited to help.
In the case of students, no representation is necessary. However, securing parental cooperation early prevents conflict later. Often, the feeling that a child was not treated fairly is the motivation for challenge. Costly hearings and lawyers can sometimes be avoided by involving the parents in the school investigation at the same time union representatives would be involved in an employee case. There is no statutory or regulatory requirement that parents be contacted when children are questioned (even by police officers), but some school districts make it a routine practice to make such contact. (Policy should not require parental contact in every case, as that would undermine a student's report of parental misconduct.)
In deciding whether to involve parents in an investigation, school officials will have to consider the age of the child, the likelihood that the parents will be helpful to the investigation and the nature of the alleged wrongdoing.
Obtain written statements
Written statements are useful because they help witnesses remember what is fresh in their minds. But a written statement is not evidence and is not a substitute for investigation.
Written statements obtained from almost everyone (except the accused) represent hearsay and probably will not be admissible. Even police reports are hearsay, and school officials should be sure to obtain a promise to testify from a police officer and other individuals who witness the events.
Work with witnesses
In gathering evidence, school officials should not rely on written statements or promise anonymity to witnesses. Rather, it is essential to obtain commitments from witnesses to testify later. While rumors or anonymous reports might lead to an investigation, they will not support a serious disciplinary action. The accused has a right to confront the accuser.
Unfortunately, witnesses and victims often hesitate to become involved. In such cases school officials should make a strong case for coming forward, and failing that, steel themselves to the conclusion that no case can be made in most instances.
There are very limited exceptions to this principle. For example, if school officials can prove that the accused poses a real danger to the witness, a written statement may be allowed instead of direct testimony.
Assess credibility
Knowing the credibility of the witness is critical to finding the truth and proving what happened. Additional witnesses do not strengthen a case nearly so much as credibility does. Lots of witnesses may all be telling stories and are sure to remember details differently, which will ultimately undermine the school district's case.
Determining a witnesses' credibility is primarily a matter of asking the right questions. The questioner should always be thinking of inquiries that cover: "who, what, when, where, why and how?"
It's also helpful to think "outside the box." Instead of conducting a search for an object, for example, ask the witness what he expects you would find if you did search. Instead of going right to the thing you are looking for, ask questions around the perimeter of what you are looking for. If you are looking for something in a student's locker, ask the student when he last accessed his locker and who else has the combination to the locker.
Instead of trying to make a case by proving direct wrongdoing, look for inconsistencies in witness reports. Consistencies and inconsistencies help establish credibility or incredibility, which will ultimately be helpful in reaching a conclusion about what most probably did or didn't happen.
Choosing an interrogator
School officials often have the advantage of being able to choose a questioner who is known to and trusted by the person they wish to interrogate. Be sure to consider the question of trust in deciding who will handle an interrogation. The right choice can make a big difference in interview results.
Evaluate confessions
School officials often have high expectations that a confession will be obtained, or they rely too heavily on a confession they have obtained. Student confessions are particularly suspect, because students often recant after they have spoken to parents or friends. Their confessions also are often suspect because of the power difference between the questioner and the accused.
School officials should be certain that:
The best way to obtain a useful confession is to have asked lots of witnesses lots of questions before the accused is asked what happened. When the interrogator already knows what happened, a confession is much more likely and is much less likely to be recanted later.
Some special problems
Conflicting testimony
School officials should expect conflict between the witness reports of what happened and the accused's version of events. Even if there is a single witness and a single accused and the accused denies everything, the inconsistent reports do not cancel each other out. Such conflicts must be resolved by examining both the collateral evidence and the credibility of information received from all sources. All information should be received with skepticism, including reports from teachers and other sources that are usually expected to be credible.
Criminal charges
Investigations are particularly tricky when criminal charges are involved. While school officials, police officers, the Department of Children and Family Services (DCFS) and the state's attorney's office all may have similar objectives in seeing wrongdoing punished, they have different interests in reaching that end. Each may have a different view of what would constitute "justice," and will likely be protective of evidence it has gathered.
Prosecutors, for example, are interested in criminal convictions. The top priority of school officials, on the other hand, may be to remove the accused from the school population — and the sooner the better.
Outside agencies may initially be willing to share information, but will turn much more protective as a case progresses, particularly if a criminal prosecution is contemplated. Prosecutors do not want to give defense attorneys a chance to practice the case at an expulsion or employee dismissal hearing. Nor will they be happy about their witnesses telling their stories under oath more than once.
Police officers may make broad promises of cooperation at the time of the initial investigation, but they will often be unable to deliver on those promises when prosecutors become involved.
While cooperating with other agencies is an admirable goal, securing evidence and witness statements before competing interests ripen is an even better goal. However, this goal is sometimes impossible to achieve because school officials were not the ones who uncovered the problem or witnessed the events underlying the problem. Perhaps DCFS or the police initiated the investigation. Such a situation would result, for example, when a school is vandalized on a weekend and police officers interrupt the misconduct, or when a parent makes a report of employee misconduct directly to DCFS. In such cases, school officials are at the mercy of the outside agency. Sometimes, there is little to do but wait for the external prosecution to run its course.
In summary
Not every investigation, even those that are careful and thorough, will produce proof that supports what school officials believe happened. Our legal system is built on the principle that the innocent must be protected from unwarranted punishment, even at the expense of letting a small number of wrongdoers escape without punishment. School officials must be able to prove wrongdoing, not "just know it happened."
Getting the investigation process right will help to insure justice in the end — most of the time.
For additional insight into the rights of students accused of misconduct and procedures for suspensions and expulsions, see The School Official's Guide to Student Disciplinary Hearings, published by IASB and edited and updated in a Second Edition by Alan M. Mullins (2002). The book is available from IASB and may be ordered via the Online Bookstore at http://www.iasb.com/shop/.
Sidebar: Essential concepts for investigations
Sidebar: Dual role vs. due process