Finding the Facts - Disciplinary and Harassment Investigation

setting face unique challenges when called upon to interview students. First, given the power relations involved, students are often fearful to speak out regarding employee misconduct. This is true in both the K-12 and community college setting. Second, with young witnesses, investigators must be particularly careful not to lead the witness, because young witnesses will tend to be more impressionable and eager to tell the investigator what the witness believes the investigator wants to hear. Thus, in addition to the strategies and protocols discussed above, investigators should utilize the following steps when interviewing students:  Remember that the district may utilize a non-disciplinary, paid administrative leave of the accused employee to create a less threatening environment within which to conduct the investigation. (However, also check the applicable CBAs to ensure compliance with any contractual obligations.)  Where it will not affect the integrity or required timelines of the investigation, consider delaying student interviews until the student is no longer subject to the authority/grading of the teacher. For example, if it is only a week until the end of the semester, the investigator might consider ordering the interviews such that the student is interviewed after the semester end and grades are submitted. (This assumes the investigation involves the teacher of the student/witness.)  Take particular care in admonishing the accused regarding the prohibitions against retaliation and advising the student/witness of what to do if he or she feels retaliatory conduct is occurring.  When interviewing a minor, have another neutral adult present. If the student has a trusted adult at the school, you may consider using that adult. However, this will generally not be appropriate if the trusted adult is a peer and colleague of the employee being investigated. Depending on the nature of the conduct being investigated, and the age of the witness, techniques may include: asking the witness first to write down in his or her own words what occurred (or state it verbally while you write it down), and then asking questions based on the written/oral statement; asking the witness to draw a picture; or asking the witness to act out or show you what occurred.  When interviewing a minor, parental consent is not required. Whether you contact a parent before the interview should depend on your assessment of whether this will facilitate the interview. Where you believe that the parent’s presence will put the student at ease and assist the fact gathering process, then contact the parent first. However, if you have reason to believe the parent will ask you not to speak to the student, or will interfere in the process, the better practice is to interview the student first and then advise the parent that the interview occurred. In particular, investigators should be careful where the facts are still largely unknown and there is a possibility that a student is accusing an employee of conduct that is actually occurring in the home.  When interviewing a minor, ask open-ended and non-suggestive questions.

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 52