Due Process and Education Secretary DeVoss

Although some people might be upset by the new ruling, most will understand that due process is an important component in dealing with any accusation of misbehavior.  This is especially true when the allegations are about sexual misconduct and most often he/she accusations and denials.

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Education Secretary Betsy DeVoss recently acknowledged the seriousness of this issue and need to protect the victim – while at the same time increasing the rights of the accused to due process.

I have been writing and training on this issue for years.  I am a strong advocate of fair-play and due process.  Indeed, I wrote my book:  Conducting Workplace Investigations:  Designated Investigator as a result of seeing how one-sided so many workplace evaluations and investigations were. 

I’ve also created two workshops for Illumeo that deals with this issue:  Interviewing:  The Art and Science and Investigating a Complaint in the Workplace. 

Although these courses were designed for the workplace – they are also applicable to allegations at school.  And, they tie in with the intent of Education Secretary De.Voss.

Neutral Investigations/Evaluations

Neutral Investigations/Evaluations

I’ve counseled and written about this issue numerous times.  So often well-intended people, thinking they are being neutral wind up only considering evidence that supports either the allegation, or their personal point of view.  This is human nature.

I’ve always believed that this was true in subjective areas, such as whether someone is telling the truth or lying, or if they sexually harassed someone, or inadvertently insulted them.  Eye witness identification is a classic example of how wrong people can be when they think they know the person who was responsible for the crime.  Research has shown, over and over again, that eye witness identification is extremely faulty and subject to all sorts of influences.

HR and legal evaluations often go about their investigation looking solely for evidence that supports allegations – and refuse to listen to those that would refute it.  I’ve read many reports which argue that the person trying to give evidence on the other side is either “denying” or “lying.”  

The other day I attended a lecture by a brilliant presenter, Dr. Itiel Dror who is a world renowned neuroscientist and a leading expert on cognitive bias in expert testimony in the criminal justice system. 

Among the many things he said:

·       There is lots of research that says your cognitive bias affects your conclusions.  If you change the scenario (for example give them two sets of the same person’s fingerprints to be compared to a third set – but in case A saying that the person was found guilty and in case B saying that they knew the person was not guilty) the fingerprint t experts (with many years of experience) will find differently.  In case A they will see a match, whereas in case B they will determine that the two prints are dissimilar 

·       Motivation influences visi9al perception – he showed us a few examples which I am unable to copy here – but looked at one way they mean one thing and another way a different object.  You’ve all see the vase and the people example – he showed two others.

·       There is also confirmation bias – confirming a point of view – which is what I’ve mentioned above.  Disconfirming information is ignored.

·       He says seasoned experts minimize cognitive contamination – in the same way we protect against physical contamination.  In their desire to get to the pure information, they protect themselves against other information coming in.

In pure research we try to avoid contamination and reduce the experimental design to clean out as many variables as possible.   Dr. Dror suggests that when a case is given to a forensic expert, it should be given with as little additional information as possible.   

He drew a quadrant:

                                                  Relevant                           Not Relevant

         

Biasing                            

           Non-Biasing

And he suggested that experts be given only the information that is both relevant and non-biasing.  They must be blind to irrelevant information.  If necessary, there could be sequential unmasking of information.

Now, unfortunately, this is not entirely possible in our workplace evaluations of an allegation of misconduct – but we should strive to be as neutral and un-biasing as possible.  If the person interviewing the complainant doesn’t give other than the very basic information to an evaluator, without suggesting that the complainant was believable or not, or had other incidents, or that there were other complaints against the alleged perpetrator than at least we reduce some of the bias.

It is also critically important to know your own prejudices.  We all have them – the more aware and honest with yourself you are the less likely you are to pre-judge based on them.  It is so important to be as neutral as humanly possible when doing evaluations and investigations.

Investigations of Allegations

Investigations of Allegations

Whether it is age discrimination, sexual harassment, or other insults – often when an accusation is made, the person doing the investigation/evaluation assumes guilt and looks for proof to find it.  I work at being neutral – and when I train others I train them to look for evidence for both innocence as well as guilt.  I often find that what really happened was meant differently from the manner in which it was accepted – and again mediation, instead of punishment solves the problem better – and allows for all potential collateral damage (other people in the organization being upset by the decisions) to be minimized.