NAIS - Boardroom: The Board’s Role in a Sexual Misconduct Investigation

In 2016, my second year as board chair at Milton Academy (MA), we launched a sexual misconduct investigation. There was no manual to guide us through that journey. There was no resource to answer our questions and help ensure that we were taking the right approach. And there wasn’t a resource about what to expect and, more important, how to deal with the unexpected. Through the process, however, I learned that the board and the board chair play a critical role in ensuring realistic goals are established and achieved.

The board’s role is one of governance—upholding the mission and serving as fiduciaries of the school, thinking long range and strategically. This is distinctly different than the head’s and administrators’ responsibilities of handling the day-to-day operations. However, in times of crisis, the board and the administration may work more symbiotically, and the board and board chair may assume a more direct role. This ensures that boards understand the details of the situation, can accurately assess and authorize necessary resources, and provide informed guidance to the head and administration and respond nimbly to changing circumstances.

The board’s role is complex, as it combines compassion with fiduciary responsibilities. One cannot overshadow the other but must be linked in driving the best response. Fiduciary responsibilities are a board’s natural remit, and while extending compassion is a less obvious task, listening to those reporting harm and understanding their experiences is critical. It may appear counterintuitive that being compassionate is the best way to protect the interests of the institution, but this has been my experience, and I believe it is morally necessary and fiscally appropriate.

Critical Board Work

Adopt a survivor/victim first approach. There are both victims and survivors of sexual abuse. “Victim” is often used when someone has recently experienced sexual abuse, while “survivor” is used for someone who has gone through recovery. Either way, understand that each experience is unique and will personally relate to one of these terms. Follow their lead. Each survivor reconciles their experiences differently. At times, there will be tension between compassion and fiduciary responsibilities. Having a north star in this approach can help guide resolution of that tension. It is important to lead with helping those who have suffered harm.

Don’t let fear drive your decisions. Particularly at the start, when a survivor first comes forward with stories of harm, the full landscape is usually unclear with much unknown. Fear often drives short-term, risk-averse decision-making that can be detrimental to those reporting harm and can prevent learning that can drive needed change for the future. Don’t look to defend or explain the harm that happened. Instead, seek to understand so that you can ensure such harmful situations can’t happen again and that you can better fashion restorative measures.

Ensure there is board chair–head of school alignment. While it might seem obvious, it is absolutely critical that the board chair and head of school are aligned from the start on process, resources, and communication. The head must operate with the support of the board and board chair and conversely must leverage the board and board chair in decision-making and resource allocation.

Listen. It is important for survivors who are able to come forward to be heard, to be listened to in a way that makes them comfortable. It may be one-on-one or in a small group setting; it may be on campus or at a neutral location. The key is to let the survivor guide school leaders so that they feel comfortable and are able to share their story.

Not everyone will be able to come forward, and that’s OK. But those who do need to be validated and commended for their courage. It is often difficult to listen to details of the misconduct and abuse, but it is so important for the survivor’s journey.

Empathize. If you haven’t experienced sexual misconduct directly, you can’t begin to know what a survivor is going through—and it is not authentic to imply you do. But you can and need to be highly empathetic. Listen, acknowledge their pain, and, as necessary, apologize. The validation demonstrates and reinforces your survivor-centered approach.

Form a committee with internal and external resources. One of the first action steps should be the formation of a committee with both internal and external resources and professionals. The board chair should work closely with the head of school to determine the specific composition of the committee, which generally should include expertise in sexual misconduct investigations, communications and crisis management, survivor advocacy, and legal guidance and representation. There are many different firms with expertise in these areas that is specific to secondary schools. It is critical in the situation assessment and decision-making processes to take into account the perspectives and advice in these different areas.

Bring in experienced legal counsel. Having appropriate legal counsel is critical, not only in handling legal claims, potential lawsuits, and settlements, but also in the construction of the investigation. While many schools have legal counsel on retainer, it is wise to consider hiring additional counsel with expertise in key areas, such as settlements, mediation, and litigation of sexual misconduct and abuse. As with other external resources, there are law firms with expertise in this area.

Provide support services. Offer professional help and access to survivor advocates to both the survivors and the institution’s community. This can include therapists or psychiatrists who have expertise dealing with sexual misconduct and abuse trauma.
While some survivors will be well down their journey in dealing with abuse, others are just beginning and need expert help.

Understand the importance of communication. The right communication, including frequency, tone, and transparency, is critical for all the key audiences, including survivors, alumni, current students and parents, faculty, and other community members. The board’s role here lies in reviewing communication in advance, providing feedback, and being knowledgeable and accessible for any stakeholders who may reach out.

Conduct an investigation. As allegations are brought forward, it is critical to conduct an appropriate investigation, leveraging an experienced and reputable investigation firm. While difficult, it is important to understand the breadth and depth of any incidences and the failures of the past. A healing journey for the survivors first and foremost, but also for the institution, can only begin with this deep understanding.

The work starts with finding the right firm with expertise in handling school investigations. Clarify with the investigation firm that you want them to remain independent in their work. From there, it is critical to think through additional parameters of an investigation. This includes everything from how to solicit responses, how to maintain confidentiality and legal privilege, whether to release a summary of the report or release the entire report, and the implications of any or all of these parameters on future legal proceedings. Last, it is important to recognize that the report can also have an impact or potentially play a role in a survivor’s journey.

Boards may encounter accusations that are not corroborated or that are false. It is important that the investigation and investigator is able to corroborate allegations and that the requirements for corroboration are outlined at the start. False accusations, while incredibly rare, can have significant consequences for the accused.

Maintain or build a close partnership with local authorities. It is critical to have strong working relationships with all the appropriate local authorities, including local police detectives, the Department of Child and Family Services, and the district attorney’s office, to name a few. Most likely the board itself will not have direct relationships with these authorities, but it should ensure that the institutional leadership is working in partnership with these groups for the safety of all children.

Hold insurance companies accountable. Insurance policies past and present need to be reviewed, particularly the insurance policy in place during sexual misconduct and abuse incidences. In older cases, an insurance “archeologist” may be needed to uncover the insurer and the policy applying at the time. Read all the fine print. Coverage becomes important for budgeting, legal assessments, and potential settlements of claims.

Generally speaking, insurance companies will look to avoid paying out a claim or a settlement. Part of their avoidance strategy is to draw out discussions and be slow to respond. As such, it is best to engage the insurance companies at the start of the process and be very clear on application of the insurance policy and appropriate riders. Finally, the board should not shy away from being aggressive with any insurance company that is avoiding its contractual obligations. If you have difficulties with an insurer, consider engaging attorneys with a specialty in insurance coverage disputes.

Update current reporting policies and procedures. While not directly responsible in its governance role, the board should ensure that the school’s administration applies learnings from every aspect of the process to update all current reporting policies and procedures. That includes working with the head and also with the director of human resources and the head of student life. It is critical to ensure an appropriate and safe environment for incidences to be reported and acted on. Policies and procedures should be updated as situations and learning warrant as well as on an annual basis.

Leading the Way

At Milton, we didn’t have a playbook, but we learned along the way; we remained agile and made adjustments, and we listened to experts. We held steadfast to our survivor-centric approach. Since the investigation at Milton, we became founding members of an organization, Learning Courage, that helps school leaders reduce and respond to sexual misconduct in their schools. Learning Courage’s mantra of compassion, integrity, and clarity highlight what must be foundational to any board of trustees’ response to sexual misconduct and abuse allegations and an ensuing investigation.

Go Deeper

In 2016, NAIS and The Association of Boarding Schools (TABS) formed the Independent School Task Force on Educator Sexual Misconduct in the hopes of contributing to a broader understanding of educator sexual misconduct in independent schools and to identify specific strategies that independent schools can take to prevent and respond to misconduct effectively. Read the full task force report at nais.org/taskforcereport.

Read a feature in the Summer 2019 issue of Independent School magazine that includes articles by multiple authors examining abuse through the lens of where schools are now, the long-term consequences of abuse, survivor voices, and the signs of abuse.

NAIS has a collection of resources on the topic. Explore “Resources: Preventing and Responding to Educator Sexual Misconduct.”