By Kevin Lungwitz
As if being a campus principal is not hard enough, there will be circumstances where you must conduct a campus investigation. Although you may be asked to play Sherlock Holmes, the good news is you can ditch the pipe, the magnifying glass, and the deerstalker hat and just keep these guidelines in mind.
Student on Student Altercations
The most common instance where your campus administrative team is required to investigate is a student on student altercation. This could be a one-off fight, a sexual harassment claim, a report of dating violence, or bullying—which includes cyber-bullying.1 There could be countless other scenarios requiring you to investigate what happened. This article will focus on a claim of student-on-student harm but could be used as a basic guideline for collecting information.
A Claim of Student Harm
Educate your entire campus community on ways to report student harm. The easier and safer it is to report, the easier it will be to investigate. Bullying might be reported by a parent, a student, or a staff member. Once alerted to an incident of student harm, or once bullying is reported, administrators must investigate. To do nothing or to be “deliberately indifferent” in the eyes of the law could jeopardize the alleged victim and could open the door to potential legal liability. The law does not demand that your investigation reach the correct outcome, but the law does require some sort of action on your part.
The Investigation
These are general investigatory tactics. Your situation could be different.
- Take steps to protect the alleged parties, notify parents, and if required, the SRO or law enforcement. Consider whether CPS must be called.2
- Clear any investigation with your supervisors and make sure district personnel are on the same page. Most of the time your campus will be responsible for conducting bullying investigations, but circumstances could be different.
- Interview the alleged victim in a safe, confidential space with parents, if possible. Encourage that the claim be written. Discuss the student’s rights to be free from harassment and bullying under policies FB, FFH, FFI. Refer the alleged victim to the school counselor, if appropriate.
- Interview the alleged perpetrator in a safe and confidential space with parents, if possible. Allow the alleged perpetrator to respond to the claims, preferably in writing. Refer the alleged perpetrator to the school counselor, if appropriate.
- Interview other witnesses in a safe and confidential space, and encourage them to put their observations in writing. Notify parents.
- When finished, if needed, loop in your supervisors, other administrators with a need to know, and law enforcement/SRO, if needed.
- Notify the alleged victim and perpetrator, and parents, of your findings, following FERPA-regulated, student confidentiality. Inform the involved parties of their right to file a complaint or appeal regarding the findings under policy FNG (local).
- If inappropriate and harmful behavior was found, conference with the victim and parents about support services and strategies to stay safe. See policy FFH (legal and local) for possible strategies to consider.
- If inappropriate and harmful behavior was found, conference with the perpetrator and parents. Discuss support services and disciplinary consequences under the Student Code of Conduct.
- Some schools offer a “stay away agreement,” which is like a school district restraining order. Some school districts store these under policy FFH (exhibit). You can also Google “Stay Away Agreement Texas.” If you use one from the Internet, run it by your supervisors or the school lawyer to confirm it is appropriate. Once executed, make a copy for your confidential file.
- Another strategy is to give the victim and the perpetrator a business card of the principal, assistant principal, or counselor with handwriting on the back, “Please allow [name] to see me when requested.” Encourage the victim and perpetrator to come see you if there is any problem or if they need to talk. Make a copy of the business card for your confidential file.
- If bullying occurred off campus, in a non-school environment, or if it constitutes cyber-bullying, the school’s ability to discipline the perpetrator is trickier. Request that the school lawyer review any proposed discipline.
These are very basic investigatory steps. Your investigation may differ. Please carefully read your school district’s policy FFH (local) for more guidance and the timelines that apply.
When Not to Investigate
If the allegation concerns possible child abuse by an adult, call CPS immediately, but surely within 48 hours, as required by law. Do not wait to conduct your own investigation to see whether the allegation is substantiated. While the legal duty to report is not triggered until you have “reasonable cause to believe” that child abuse or neglect has occurred or may occur, CPS has a more rigorous take. CPS does not want the school district to investigate to determine if “reasonable cause to believe” exists. If you do, CPS might accuse you of failing to timely report or interfering in a CPS investigation, both of which are crimes.3 If you are unsure what to do, call CPS and inquire, and seek legal advice from the school attorney.
Investigating every allegation of student harm can be exhausting. Follow these guidelines, review your school policies, and ask your supervisors or school lawyer for guidance, and you will do a great job on important work that must be done.
Kevin Lungwitz practices law in Austin and is a former Chair of the School Law Section of the State Bar of Texas.
Endnotes
1Bullying “means a single significant act or a pattern of acts by one or more students directed at another student that exploits an imbalance of power and involves engaging in written or verbal expression, expression through electronic means, or physical conduct that satisfies the applicability requirements below and that:
- Has the effect or will have the effect of physically harming a student, damaging a student’s property, or placing a student in reasonable fear of harm to the student’s person or of damage to the student’s property;
- Is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student;
- Materially and substantially disrupts the educational process or the orderly operation of a classroom or school; or
- Infringes on the rights of the victim at school;
“Cyberbullying” is bullying through the use of any electronic communication device, including through a cell phone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an internet website, or any other internet-based communication tool.
See policy FFH (legal) for definitions of dating violence and sexual harassment. See policy FB for discrimination based on disability, sex or other protected characteristics. See policy FFI for the definition of bullying.
2It is unclear whether CPS must be called in an instance of minor-on-minor harm. While those circumstances might exist, this is usually not the case. When in doubt, call CPS and inquire. As stated in this article, once a CPS report is made, let CPS take the lead on the investigation.
3See Title 40 Tex. Admin. Code Sec. 707.619 (a).
TEPSA News, January/February 2023, Vol 80, No 1
Copyright © 2023 by the Texas Elementary Principals and Supervisors Association. No part of articles in TEPSA publications or on the website may be reproduced in any medium without the permission of the Texas Elementary Principals and Supervisors Association.
Note: Information from Legal Ease is believed to be correct upon publication but is not warranted and should not be considered legal advice. Please contact TEPSA or your school district attorney before taking any legal action, as specific facts or circumstances may cause a different legal outcome.
