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How to Handle Student Complaints – Work the Problem, Dig in the Right Place, and Stay on Target

How to Handle Student Complaints – Work the Problem, Dig in the Right Place, and Stay on Target


By William R. Bay and Jeffrey R. Fink, Partners, Thompson Coburn LLP

From time to time, career colleges face complaints from their current or former students about all kinds of issues. Here are some practical suggestions for how to handle complaints made against your school (other than Title IX complaints). Of course, if you already have lawyers involved, you should follow their advice. The focus here is on what your school can do to best handle the student complaint.

1. Be on the lookout for student disputes.

Frequently, student complaints come directly from students. But oftentimes, complaints can arrive at your doorstep through advocates for students such as private attorneys, state attorneys general, state higher education agencies, accrediting agencies, the Office for Civil Rights, the Consumer Financial Protection Bureau, and the Better Business Bureau.

Promptly discovering student disputes may be the most important thing you can do. It may seem odd to start with the obvious. But you cannot handle what you do not know about. Student disputes may not get the attention of the right people at the school. A school department or employee may try to handle a student dispute on their own. While this might work out okay with minor situations, sometimes minor things blow up into major headaches.

The best practice is to make sure that all disputes are reported to the appropriate person at the school.

If you want to ensure all complaints and disputes are handled promptly, consistently, and fairly, the first step is to create a mechanism to know about them. One simple way is to create charts so you can be sure you know what complaints have been made and are pending. Separate them into three categories – lawsuits, agency complaints, and student complaints. Then include information about the complaint, the date, people with knowledge, and progress on dealing with each one.

This process is useful for four reasons:

  • It creates a reporting culture and practice that helps ensure that all disputes, complaints, and litigation are centralized in one place.
  • It allows you to monitor the progress of the response. Agencies can be slow to act. Comprehensive charts ensure things stay on your radar.
  • It permits you to discern patterns. You can identify problem areas and processes that need to be addressed from a management perspective. A look at 3-5 years of disputes can be helpful in improving your school.
  • It allows you to use the information for reporting to the school’s management, insurers, and accreditors and, if required, to the U.S. Department of Education and state higher education agencies.

2. The first steps are crucial – work the problem.

Once you know there is a student complaint, what should you do? A school’s actions when it first learns about a student complaint are crucial. They can affect the school’s chances of success in resolving the dispute early. A student complaint can easily mushroom via social media to other students and lead to “copycat” complaints by other students. State attorney general investigations can begin based on one or more student complaints. Any of this could cause accreditation issues.

It is almost always in the school’s best interest to resolve student disputes as quickly as possible. There are three practical reasons: (a) litigation is expensive and should be avoided if you can reasonably do so; (b) negative publicity, regardless of the merits of the dispute, can be damaging for the school; and (c) things that linger always seem to get worse.

What are the first things you should do? Here are some suggestions:

  • Check your processes and procedures. Then follow them. It sounds too simple, but the most important thing is to follow the applicable processes and procedures that are already in place. Invoke the school’s internal grievance processes and ensure they are followed by the school and the complaining student. Be mindful of FERPA and HIPPA requirements as you do your work.
  • Keep any deadlines in mind. Every agency and entity has different deadlines, procedures, and requirements. Check with each one for what they want and when they want it.
  • Develop a plan of investigation tailored to address the specific student complaint. It is important to recognize that one size does not fit all. Make sure the investigation plan fits the complaint. This will likely require you to understand the complaint a bit before starting. Not every complaint merits a full-blown investigation, but don’t be guilty of not spending enough time on the front end to make sure you understand the complaint and the potential consequences. Read between the lines of what is written.
  • If the complaining student is not represented by an attorney and it is otherwise appropriate to do so, talk to the student who has complained. Make sure you listen to the student and understand all the complaints and what he or she wants. Be clear with the student on the investigation process and the time it will take to get back to the student. Managing students’ expectations and keeping them updated can go a long way towards a successful resolution.
  • Don’t forget about insurance and reporting. Get with your insurance broker to see what needs to be done and check your policy.

The most important thing is to be proactive. Work the problem. That’s the secret to success. Don’t put it off. In this regard, it may be helpful to remember the movie “Apollo 13.” Sure, it’s famous for the line “Houston, we have a problem,” but you also may remember this scene. The capsule is in distress. It may not return to the earth safely. Its heat shield is damaged. It is running out of oxygen. It is getting cold. Panic is setting in at NASA. Ed Harris calms everyone down and says, “Let’s work the problem, people. Let’s not make things worse by guessing.”

No matter how serious or insignificant, you need to work the problem. If you are going to resolve student disputes and complaints successfully, it starts with the first day.

3. Be sure you are digging in the right place.

That means fact-finding. You must channel your inner detective. Be a Batman, but without the violence and moodiness.

Start with documents, email, data, and social media to piece together what happened. Indeed, you need to preserve documents, email, and other electronic data that the school has control over and reasonably knows or can foresee may be relevant to the dispute. This is an important legal requirement. Failure to comply with this duty can result in sanctions by a court or arbitrator and put the school at a serious disadvantage. It is difficult to predict with complete accuracy what may be deemed relevant or sought in discovery.

The safest course is to err on the side of preservation with respect to all materials related to the student or the subject matter of the dispute.

And most of the time, but not always, the documents will help your position.

The best advice is to make sure you are digging in all the right places. And this is best illustrated by the scene in the iconic film “Raiders of the Lost Ark.” Harrison Ford and the bad guys are racing to find the map room to locate the lost ark. And the bad guys are ahead. The great news for Indiana Jones is that the other side was digging in the wrong place because they had incomplete information. They only had the information from one side of the medallion.

Don’t succumb to the perils of incomplete information. Getting all the information is crucial if you are to make the best decisions.

Where do you start?

  • Check all the physical locations. That includes the campus, department, and offices where the student interacted with the school. Obtain all available documents, email, and computer data related to the student. Materials that seem inconsequential may contain helpful information.
  • Whose files should you review? It depends on the nature of the dispute, but can include: (a) the student’s professors and instructors, academic advisor, dean, and program head; (b) admissions personnel who dealt with the student; (c) financial aid personnel who dealt with the student; (d) career services/counseling personnel who dealt with the student; and (e) others who dealt with the student.
  • Look for more than just email. The types of records to search for and obtain include: (a) the student’s academic file, financial aid file, career services file, etc.; (b) professor or instructor files concerning the student; (c) program-specific files (e.g., nursing); and (d) emails with the student or that mention the student.
  • You want all documents about the student’s academic performance; attendance; course surveys by the student or other students in the same courses taken by the student; advising contacts; and the student’s activity in the school’s computer systems. As you can imagine, it is best to get the school’s IT department involved.
  • When dealing with computer data, it can be important to generate screenshots of certain kinds of data. Screenshots are vital because they show precisely the information that school employees saw when they made decisions.
  • Finally, review the student’s social media postings that are publicly available. Publicly available postings are fair game. But don’t make a friend request to gain access.

4. Figure out who will tell the school’s story.

In addition to retrieving the relevant documents and data, it is critical to identify the school personnel who dealt with the student and can tell the school’s side of the dispute. This may not be as easy to do as you think. People forget what they did. Sometimes they want to forget they ever interacted with a specific student or were involved with a particular situation. It is crucial for you to review documents to determine who was involved with the student.

Once you are satisfied with who you should talk to, you have to prepare to meet with them. Go over the basic allegations, provide them with the key documents (preferably in chronological order), and make sure they have any other important written documents (especially those mentioning them). This will hopefully help them remember what happened and keep everything in order. It will also aid you as you seek to understand why people acted in a certain way.

If the complaint proceeds to litigation or a hearing, make sure your witnesses do their “homework” and refresh their memory as to what happened. It is very important to have witnesses who can answer questions. Fact-finders (judges, arbitrators, juries) expect schools to have answers to reasonable questions. Everyone has their own ideas, but witnesses who say “I don’t know” or “I don’t remember” over and over are not ideal. Provide your witnesses with the appropriate documents to review and sufficient time to prepare.

Remember that telling you what happened in a dispute is not an employee’s favorite activity of the day, so be sensitive and patient.

Learn what they know about the student and the student’s allegations. Evaluate their strength as a witness. Do you believe them? Are they the representative of the school and its values whom you want to tell your story? Sometimes you don’t have a choice, but always remember that they will tell your story.

You can advise current employees not to discuss the student’s dispute with anyone unless instructed to do so. And you can also ask them to alert appropriate school officials if anyone outside the school contacts them about the dispute.

Working with former school employees involves different considerations. You can advise them that they are not required to discuss the student’s complaint with others, but you cannot say they are prohibited from doing so.

Don’t be afraid to ask difficult questions. If you don’t, someone else will do so in a setting you don’t want and you may be surprised (and not in a good way).

People ask whether you should involve an attorney in the process. Sometimes you can tell a dispute will require counsel and they need to be involved from the outset. But many times, it is not necessary. Some schools investigate and forward a draft response to their attorney to review. Sometimes the attorney can review an investigation file for a “sanity check.” Both can be prudent ways to proceed. But if a student has retained a lawyer or the complaint is being pursued by a government attorney (e.g., a state attorney general), the school needs its own attorney.

5. Stay on target by developing a chronology and the school’s narrative.

After you have retrieved and reviewed the key documents and data and have interviewed the key witnesses, it’s time to develop a chronology and the school’s narrative. This is crucial. Every student dispute involves a story to be told by the school. Be comprehensive in your chronology of what happened. Things that seem insignificant now can become crucial down the road. The chronology should include references to each key document and what each witness said. If there are inconsistencies or big questions, make a note. There is no rule against going back to witnesses and rechecking items that are unclear.

By this point, you should assess the strengths and weaknesses of the dispute. It’s not a question about being optimistic or pessimistic. Be objective. Be ready to address all questions and issues. It is important to remember the words from “Star Wars.” The rebel fighters are making the run to shoot a bomb into a small two-meter portal on the Death Star to destroy it. They are being fired on by other fighters and guns. Darth Vader and his cohorts are nearby and time is running out. It is a maelstrom of noise and action. But through it all, you keep hearing – “stay on target,” “stay on target,” “stay on target.”

Never forget your target. Your goal is to determine the truth and resolve the student dispute in a fair and equitable manner.

One note of warning here. Be careful what you put in writing. It may not be protected from disclosure. Make sure it’s factual and amply supported by documents and witnesses. This is not the place to opine or use hyperbole. You are gathering facts and information. This will enable you (or others) to review the information you have gathered and determine what to do.

6. Figure out your options and resolve the dispute in a timely manner.

If it’s your job and responsibility to resolve the dispute, you have to assess the situation and evaluate how to resolve the matter. This should be done after relevant materials are reviewed and relevant school employees are interviewed. But one thing you can be sure of – disputes don’t usually get better the longer they are unresolved. Manage the process and the expectations, including the student’s expectations regarding the time you need. Shorter is almost always better than longer.

There is no formula for resolution, but there are several factors to be considered in assessing the situation and making an offer to resolve the situation. Here are some:

  • What are the facts?
  • Is the student credible?
  • Are the school’s witnesses credible?
  • If former school employees are involved, are they available and willing to cooperate?
  • What does the student want?
  • How much will it cost in time and money to defend the matter?
  • Is this an isolated occurrence or part of a larger group of incidents?
  • Will resolution of the student’s dispute encourage other students to assert similar claims against the school?

Once you have done your work and considered these factors, make a realistic assessment, develop options, and act. Don’t be afraid to get a “sanity check” from your attorney. If you determine mistakes were made, make it right. Don’t get drawn into the irritations and aggravations of witnesses or others. Don’t overact to your irritation with a student or employee. Remember who you are – an educational institution. Always seek the high moral ground. It’s the best place to be in every dispute.

There is one other thing that is important. Once you’ve decided to resolve it and have done it, it’s over. Don’t look back and second guess yourself.

7. Final thoughts.

There is a lot here to digest. You may have your own practical advice to add. But let me suggest that remembering three films can guide you when student complaints or disputes land on your desk.

  • “Apollo 13” – work the problem.
  • “Raiders of the Lost Ark” – make sure you’re digging in the right place.
  • “Star Wars” – stay on target.

Disclaimer: The contents of this article do not constitute legal or regulatory advice or counsel. No person or entity should act, or refrain from acting, on the basis of the information discussed herein without seeking individualized, professional counsel as appropriate. The views expressed are those of the authors in their individual capacities.

William Bay

WILLIAM BAY  is a litigation partner with Thompson Coburn LLP, a 350-lawyer firm with offices in St. Louis, Chicago, Washington, D.C., and Los Angeles. He has achieved favorable results for clients in state and federal courts across the country and frequently serves as regional or national counsel for clients facing suits and regulatory actions in multiple venues. He has been recognized as a top litigator by The Best Lawyers in America.

Over the last five years, Bill has defended postsecondary educational institutions in many lawsuits and arbitrations brought by former students across multiple jurisdictions. He also has represented institutions facing civil investigative demands, government investigations, regulatory actions, False Claim Act suits, and employee-related litigation.

Contact Information: William R. Bay // Partner // Thompson Coburn LLP // 314-552-6008 // wbay@thompsoncoburn.com // http://www.thompsoncoburn.com/

Jeff Fink

JEFF FINK  is a partner at Thompson Coburn LLP. He has over 24 years of litigation experience and has defended schools in dozens of lawsuits and arbitration proceedings brought directly by students or on their behalf by state attorneys general; has represented several schools in program reviews and audit determinations before the United States Department of Education; and has helped schools retain their accreditation and eligibility to participate in student aid programs, including veterans aid programs.

Contact Information: Jeffrey R. Fink // Partner // Thompson Coburn LLP // 314-552-6145 // jfink@thompsoncoburn.com // http://www.thompsoncoburn.com/


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