Educational institutions have always been plagued with incidents of conflict that can escalate 
into more serious issues such as bullying and assault (both actual and alleged) that may occur in a place where young people are brought together for instruction, but when formal complaints and allegations of harassment, discrimination, retaliation or negligence are made, a decisive response is vital. Conducting an internal investigation is absolutely necessary, not just for correctly resolving the issue, but also to protect your institution from litigation. However, an internal investigation doesn’t just consist of finding and talking to the people involved in the issue. Here are some of the steps you need to follow:
- Create an Internal Investigation Plan Before You Begin
A written internal investigation plan will help you ensure the investigation is conducted in a thorough and fair manner and will ultimately help you avoid claims of negligence.
To create an internal investigation plan, define key personnel, key documentation, and create a detailed account of internal policies and procedures to be referred to in the case of particular incidents. Keep in mind your obligations in relation to external regulations such as protecting student privacy based on FERPA. A proper internal investigation plan will also help you avoid collateral consequences.
- Designate Personnel to Conduct the Investigation
First of all, it’s essential to designate specific people who will conduct internal investigations. Internal investigations must be launched by people who possess the necessary skill level to gather evidence and make determinations based on facts. This could be a representative from your HR department, HOD of the relevant department or even the Head of Student Services. It must be absolutely clear who is in charge and has responsibility for directing the investigation.
- Engage Internal or External Legal Counsel
Often, when issues of discrimination or harassment reach the courts, there are issues regarding attorney-client privileges and especially in the case of educational institutions, problems regarding privacy of information. It’s best to be clear from the start whether you will engage outside counsel in the matter or not. Depending on your resources, and in the interests of conducting an unbiased investigation and to avoid conflicts later, it’s essential to understand whether the right people exist inside the organization or outside help is required.
To avoid the spread of malicious gossip, bullying and even retaliation after a complaint, have in place an early action plan for communicating with concerned parties. Reach out, request cooperation, and ensure preservation of electronic and paper documents and forensic evidence.
- Develop a Procedure for Handling Witnesses—Before the Fact
Develop procedures for interviewing key people and procedures to avoid bias such as avoiding one-on-one situations. Have procedures in place for recording and documenting everything, especially interactions with witnesses and engaging legal counsel. In some cases, pooling legal counsel for witnesses should be offered so that they are adequately represented. When reviewing the information and talking to witnesses, keep an open mind and avoid making biased statements or asking leading questions.
- Determine if Forensic Services are Needed
Depending on the severity of the allegations, organizations may need to preserve evidence through forensic services. Engaging forensic professionals could help you avoid charges of negligence. However, engaging forensic professionals should be done through counsel to ensure private data can be protected from exposure and to ensure your compliance with Privacy Protection rules such as FERPA.
- Develop Specific Reporting and Filing Procedures for the Finished Report
After an investigation is conducted, the findings must be reported. Have procedures in place specifying who should draft the report and who it should be delivered to. Also check whether there should be interim disclosures or only final disclosures and who should have access to these disclosures. Ensuring accuracy in recording and reporting information is critical. Identify situations where it may be necessary to report your findings to government and law enforcement agencies and have the correct procedures in place to avoid violating privacy laws in such situations.
- Follow Through with Corrective Action
Most importantly, an internal investigation may lead in an uncomfortable direction. Ensure the investigation reaches its rightful end and never ignore a situation or fact that might make you or the organization liable or culpable. After conducting the investigation, it’s important to follow through with meaningful corrective action. At times, a review of policies and procedures may be necessary to recognize when such policies may have contributed to the issue itself. Sometimes policies can be changed to minimize risk and reduce future occurrences of the same events.
However, despite all this, it’s still possible to end up in court with a lawsuit or facing government intervention. In such circumstances, a well conducted internal investigation can work in your favor.
