School investigations—whether at a large university, small college, private or public high school, or other educational institution—pose special problems for school administrators and counsel. The risks are often high, and school leaders, even those well versed in the typical legal issues affecting their institution, may be inexperienced with conducting investigations.
While there is no one-size-fits-all approach to any investigation, here are six keys for any school or university faced with a situation requiring an investigation.
Assess (and keep on assessing) the risk
Risk assessment is simple in theory but more challenging in practice. Why? Because when a problem arises, decision-makers often have only partial, imperfect information and limited time to act. Plus, previously unknown risks can emerge as new facts become known.
Risk is key because it drives nearly every later decision: Who will conduct an investigation? How extensive will it be? What steps are required? What public relations or crisis management actions are needed?
So it’s not enough to make a quick judgment about the risk and move on. Rather, there must be an initial assessment on which immediate decisions are made, followed by regular reassessment and recalibration of approach as new information develops and circumstances change.
Define the purpose and scope of the investigation
Purpose and scope are related but distinct concepts. The purpose is simply the goal of the investigation. For schools and universities, the purpose often will be to respond to a complaint, determine whether certain misconduct occurred, and ultimately decide what action needs to be taken. Having a clearly understood purpose ensures that the investigation is focused and efficient.
By contrast, scope is the overall body of information that will be considered and the steps used to gather it. Establishing the appropriate scope is critical: If the scope is defined too narrowly, an investigation can fail to obtain important information or undermine its own credibility. If the scope is too broad, however, it can bog down the investigation, inflate the costs, and distract from the actual purpose.
Consider the school culture and stakeholders—and plan accordingly
For an investigation to be effective, it must recognize and account for the culture of the institution. This is true in the corporate world and particularly so in educational institutions. A sexual misconduct investigation with Title IX implications will have different challenges if it occurs at a small Christian-based high school than if it occurs at a large state university. Likewise, investigators must understand the school’s power structure, formal and informal, and other dynamics of the institutions and people within the scope of the investigation. That type of knowledge will be critical in getting access of information, detecting and counteracting any inherent biases, and ultimately reaching a sound conclusion.
For an investigation to be effective, it must recognize and account for the culture of the institution. This is true in the corporate world and particularly so in educational institutions.
Be wary of required disclosures
The event that triggered the investigation may also trigger certain disclosures or other legally required actions. For example, both Title IX and the Clery Act have disclosure requirements—by certain classes of employees and, in some cases, the institution—if they are implicated by the conduct at issue. More generally, schools can be subject to contractually mandated disclosures or routine legal requirements, such as document preservation when on notice of potential litigation. Schools, particularly universities that may employ various types of professionals, should also be mindful of the potential disclosure obligations of many licensed professionals when accused of or found liable for some types of misconduct. Finally, many educational institutions contract with federal and state governments to provide goods and services, which can also carry disclosure requirements depending on the type of contracting and industry.
Involve other experts with care
Depending on the nature of the investigation, outside experts may be needed. Indeed, one of the first questions administrators should ask is whether the investigation itself should be conducted internally or by outside counsel. There are advantages to each. Using internal lawyers and personnel usually is more cost effective and less disruptive, and it often can capitalize on the institutional knowledge of in-house staff. But outside counsel who are specialists in investigations can bring greater credibility, a broader, more objective perspective, and independence to an investigation. As a general rule of thumb, the greater the risk, particularly the greater the risk to the institution itself, the more likely outside counsel should be involved.
Regardless of who conducts the investigation, schools also may need to involve additional experts for more narrow investigative needs. For example, an interviewer specifically trained to work with trauma victims may be appropriate. More broadly, if the investigation involves data or document requests, as in most litigation or government-enforcement matters, a third-party vendor to manage digital evidence and e-discovery may be needed, rather than relying solely on in-house IT staff.
In each case, involving an additional expert or vendor should be done with care. Their roles should be carefully defined, and ideally they should be retained by the school’s legal department or outside counsel to further ensure their work is protected by the attorney-client privilege and work-product doctrines, where applicable. Finally, while beyond the scope of this article, there of course situations in which many of the usual considerations must be put aside, and experts in the form of law-enforcement agencies should be contacted to handle an investigation.
Know who the client is and protect the privilege
Finally, it is imperative to identify clearly the client and understand the implications—legal and otherwise—of that. Often, a board, specially formed committee, or other governing body is the entity that retains counsel. The engagement letter with counsel must unambiguously define the client and, in the case of an entity, identify who is authorized to communicate for the client. The engagement should also specify the scope and nature of the services, particularly the legal purpose of the services. While certain “buzzwords” are not strictly required by courts when evaluating later privilege claims, both schools and their counsel are well served by making it clear that the attorneys are retained to render legal advice in some fashion.
Missteps with privilege abound in investigations. As privilege-related disputes in high profile cases like those involving Baylor and Penn State demonstrate, schools and universities are no exception. In some cases, those risks are heightened by typical privilege landmines like failing to maintain confidentiality. But for schools, often there is a tension between preserving the privilege and wanting to release information in an effort to manage public relations. Such decisions should be made only after careful consideration with counsel. In most cases, the waiver effect of intentional release of information cannot be undone or, due to the principles of subject-matter privilege waiver, even limited. Finally, for counsel and their school clients, special care should be given to the form of any investigative report or summary. While written reports lend greater formality and arguably greater credibility to an investigation’s findings, they also pose far greater risks to privilege waiver.
High profile investigations, by their nature, are fraught with peril. Schools and universities along with their attorneys should follow the sound principles that guide any effective internal investigation but also account for the special challenges educational institutions face. Only by doing both can they be sure the investigation will be successful and the school will be protected.
Ty E. Howard is a partner with Bradley Arant Boult Cummings LLP in the firm’s Nashville, Tenn., office and chair of the firm’s Government Enforcement and Investigation Practice Group. He regularly represents educational institutions in matters involving compliance, litigation, internal investigations, Title IX issues, and related matters. He can be reached at [email protected].