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Education Law Update

When a student makes a complaint of sexual harassment against a teacher or other school employee, it is very important that the school district conduct a prompt and thorough investigation of the complaint and take appropriate corrective action.  This is so even if the investigation is inconclusive due to a lack of evidence to prove whether or not sexual harassment occurred.  That is the clear message from the Eleventh Circuit Court of Appeals in the case of Doe v. School Board of Broward County et al., decided on April 27, 2010.     

 

In this case, a female high school student sued the Broward County School Board under Title IX, alleging that her math teacher had sexually assaulted her in the classroom when no other students were present.  Significantly, there had been two prior sexual harassment complaints against the same math teacher.  The high school principal had informally investigated both prior complaints and then also notified the School Board’s Special Investigative Unit (SIU) of each complaint.  However, the principal had failed to advise the SIU that the second complaint related to the same math teacher who was involved in the earlier complaint, and the principal also did not provide all relevant information to the SIU regarding the second complaint.  Thus, the second complaint of sexual harassment was not adequately investigated.  In reviewing each complaint separately, the SIU had determined that each was “inconclusive.”

 

The Eleventh Circuit Court of Appeals held in Doe v. School Board of Broward County that the School Board was not entitled to summary judgment, so the case would have to go to a jury trial.  The Court observed that although an imperfect investigation of a sexual harassment complaint will not be enough, by itself, to create liability under Title IX, a School District is required to exercise care and conduct at least a minimally-reasonable investigation.  This means that the person conducting the investigation should, at a minimum: (i) obtain all relevant facts, (ii) interview the student-complainant, the teacher and all students with relevant information, (iii) interview parents or other persons with relevant information and (iv) take into account any prior complaints of sexual harassment against the same teacher.   

 

Moreover, even where the school district conducts an adequate investigation and is unable to make a definite determination as to whether or not sexual harassment occurred (i.e., he-said, she-said), the School District should still take appropriate corrective measures under the circumstances, such as (i) monitoring the accused teacher, (ii) warning the teacher regarding inappropriate conduct and (iii) admonishing the teacher to avoid even the appearance of impropriety with students.

 

Prepared by:    James Dean

    jdean@lawfla.com

 

Education Law Update

The Second District Court of Appeal held that a teacher has a right to have a lawyer present when being interviewed by School District staff as part of an investigation of misconduct.  Raven v. Manatee County School Board, Case No. 2D-081533 (Fla. 2d DCA December 2, 2009), which can be found here. The Court held that, under the circumstances of this case, the teacher was entitled to have his lawyer present for the investigatory interview. 

 

The Court based its decision on Section 120.62(2), Florida Statutes, which provides that anyone who appears before an “agency” of the State of Florida “in an investigation” has a right to counsel.  In this case, the Manatee County School Board (an “agency” within the meaning of the statute) had promulgated a School Board policy which provided that staff of the School District would investigate complaints of misconduct.  The Court held that this School Board policy had the effect of delegating the School Board’s investigatory authority to the School District.  Thus, the requirements of Section 120.62(2) applied to such investigations.

 

Whether a particular School District will be required to allow an employee to have his or her attorney present during an investigatory interview regarding alleged misconduct may ultimately depend upon the particular provisions of the rules of the School Board in that particular School District.

 

Prepared by:

Jim Dean

jdean@lawfla.com