Legal Updates

Best Practices For Schools In Responding To Anonymous Complaints

Consider this hypothetical:

Louis is the CFO of Garden Academy, a PK-8 Independent School. In January, Louis receives an email from an anonymous address detailing alleged “bullying” and verbally abusive conduct by Sean, the Director of Garden Academy’s Lower School. The email claims that Sean berates faculty in meetings and imposes impossible standards, and that anyone who speaks up is retaliated against. The email says if Sean is not removed from his position, Garden Academy can expect teachers to walk out “en masse.” The email is signed “concerned community members.” What should Louis do?

Independent schools are receiving an increasing number of anonymous complaints from members of their community, including staff, faculty, students, parents, and alumni. These complaints may concern staff, administrators, trustees, students, school policies, school events, or personal grievances.

Responding to and assessing anonymous complaints can be challenging. Regardless of the nature and origin of such complaints, it is important for independent schools to emphasize their commitment to take seriously all complaints they receive and respond in a meaningful way that is proper under the given circumstances. This approach has multiple benefits.

First, it signals to students, parents, faculty, employees, and other members of the school community that their concerns will be heard. Second, it may help empower individuals to come forward, rather than keeping silent on issues that could pose risks to other community members and the school. Third, it fosters a culture of trust in the Board and school administrators that is paramount to resolving complaints internally in an effective and efficient manner. This gives schools a chance to solve problems before a government agency or plaintiff’s lawyer gets involved, avoiding potentially costly legal and reputational exposure.

Even for schools that have comprehensive policies and procedures for responding to complaints, anonymous complaints pose different challenges and require a delicate balancing of the interests of the parties involved. Below are some special considerations of which schools should be aware when taking steps to investigate, assess the validity of, and resolve such complaints.

Involving legal counsel. As an initial matter, the importance of involving the School’s legal counsel at the earliest possible stage of a complaint should not be underestimated. Attorney involvement is key to charting out a careful plan and also keeping communications relating to the School’s response privileged and confidential to the greatest extent possible.

Is the alleged misconduct a violation of law and/or school policies and expectations? The first consideration is the substance of the complaint. Does it involve workplace interpersonal conduct that may be able to be resolved through informal interviews? Does it implicate one of the school’s policies, such as the anti-bullying policy or other written codes of conduct? Is there a possibility that the conduct alleged might be a violation of law?

For example, what if a teacher receives an anonymous email from someone who identifies themselves only as a “current student,” alleging that another student has been stalking them online? A careful analysis of the policies or laws that may be violated by the behavior, if found to be true, is essential to determining the level and type of response needed. A school should have a robust whistleblower policy and analyze a complaint to see if it falls within the whistleblower policy. If it does, this will help determine the appropriate individuals or group to handle the complaint. That analysis will also permit a better assessment of whether the allegations are actionable, depending on the level of detail provided. With an anonymous complaint in particular, the level of detail provided is key, which leads to the next question.

Is the alleged behavior concrete or vague? Analyzing the details of an anonymous complaint without an identified complainant is challenging. In particular, the person who registered the complaint has not come forward to stand by their claims, so the credibility of the claims and the complainant are difficult to assess. But the details of the conduct alleged may provide a guide. For instance, are there known or alleged facts upon which the school can follow up? Are specific incidents alleged that can be investigated? Did the complainant give enough information that the school can corroborate the allegations through interviews of credible witnesses or a review of documents such as emails or financial records? To that end, it is also important to know whether the school has or can identify a point or method of contact, the next consideration.

Does the School have a way to communicate with the anonymous complainant? In the hypothetical above, the School did not know the identity of the community members who complained, but did have an anonymous email address with which to communicate with them. As a result, the School had a method to reach out to encourage the accusers to come forward and identify themselves and provide more information. In a situation like this, the School might respond that it cannot move forward without more information about the alleged behavior. The School also had an identifiable pool of likely individuals with the most at stake: those individuals who might have been affected by the purportedly harsh or hostile behavior of the Lower School Director. The School therefore might decide to have Human Resources or an outside investigator or consultant meet with faculty and staff to better understand the personnel situation.

If there is no point of contact, a school might conduct an investigation and carefully record the steps it took to address the complaint, so that it can begin to assess the complaint and act if there is enough information to do so, or be prepared to respond if the complainant later decides to come forward, or provides additional information. In the course of communicating with the complainant, it is also important to consider the right person or group within the school to respond and investigate, as appropriate.

Who will lead the response? If the complaint concerns a particular individual, this may determine the appropriate person or group to formulate a plan. For example, if the Head of School or a senior administrator is targeted by the complaint, the Board of Trustees or a subcommittee of the Board may be in the best position to chart the route forward. If the accusations concern a teacher, then the Head of School will likely be leading the response. If the allegations do not directly concern an individual but nevertheless pose legal risk to the school – for example, if there is an anonymous complaint of an unsafe school building – the Board and Head might work together to respond. Deciding up front the best group to analyze and/or investigate a complaint will shape the scope of the investigation, as well as who “needs to know.”

Who needs to know about the allegations? Confidentiality is always an important consideration in responding to a complaint. There is an increased chance that the school could unwittingly be exposed to a defamation claim or other legal challenges if the complaint becomes widely known within the school, especially when a school cannot be certain whether the claims are true. The substance of the allegations is important. If true, would they be a violation of law? Would they seriously impair a person’s reputation? The level of legal and reputational risk to all involved (for example, if the allegations are later shown to be false) should be mapped out at the beginning of an inquiry, given the information known to the school at the time.

This analysis will help decide who will be informed of the situation. Is it a situation that can be handled by the Head of School and a few trusted employees, or does it rise to a level where the Board may need to be briefed? It is important to keep the Board informed when an issue involves risk to the school, but the seriousness of the allegations will also determine whether the entire Board needs to know about the complaint, as opposed to its Executive Committee or some other subset of the Board.

Other considerations. The following are some additional action items that schools may consider taking to address anonymous complaints, and these steps may also apply to complaints that are not anonymous:

• Reviewing and updating the school’s whistleblower policy and other complaint reporting procedures. These policies should include confidential pathways for concerns.

o Although a school cannot guarantee complete confidentiality, it is helpful to have multiple individuals who are trained and prepared to receive complaints. This list might include the Head of School, the Head of HR, the President or Chair of the Board, or the school’s legal counsel. In this way, potential complainants may choose their preferred point of contact with whom they feel comfortable coming forward, and may be more reassured that the school will preserve confidentiality to the extent practicable.

• Adopting and communicating a clear statement of policy that the school prohibits retaliation in any form. This should be included in the school’s employee handbook, whistleblower policy and related communications, and should be reiterated in communications with a particular complainant or accused party.

• Expanding the school’s code of conduct, open door, and professionalism policies. As a school navigates in-person, remote, and hybrid work environments, interpersonal conflicts are at an all-time high and have been a source of increased stress on faculty and staff, as well as a source of increased anonymous complaints. A school should have policies for addressing and seeking to resolve conflicts at the earliest stage.

• Conduct faculty and staff surveys and performance evaluations, both top-down as well as 360-degree evaluations, and exit interviews. These may assist administrators and the Board in identifying issues before they become liabilities.

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Students, families, and school employees should be encouraged to make complaints through proper reporting procedures, and not to come forward anonymously, if at all possible. Nevertheless, having clear reporting procedures and discussing a framework for addressing such complaints in advance is key. This will help create a proactive rather than simply reactive approach, will facilitate investigations, and will help the school work towards ensuring that any supportive, disciplinary, or other remedial measures taken are appropriate and supportable by the information gathered, whether a complaint is anonymous or not.

Please feel free to contact any of the attorneys in the Firm’s Employment or Education Groups with questions or if we can be of assistance in responding to anonymous complaints or updating your school’s policies and procedures with regard to such complaints.