What are some of the reasons that it makes sense to apply the more protective procedure, known as the Uniform Complaint Procedure, to all bullying complaints even though it may not be required by law?
Preventing Mistakes. First and most importantly, this proposed new two-tier policy is so complicated and so vague in parts that it is guaranteed to lead to mistakes. Some complaints that are in fact based on protected status will inevitably be misclassified. This can result in discrimination, in legal violations, and in potential liability for the district.
As an initial matter, the district's proposed bullying policy provides no procedures whatsoever for making the determination whether a complaint or bullying incident was based on a protected status. There is no effort to specify who will make that determination or when or based on what evidence. There is no guidance in the 8 single-spaced pages of the bullying administrative regulation for teachers, administrators, or parents on how or when or by whom it is to be determined whether or not a complaint is based on a "protected status."
Consider a hypothetical situation. Assume a teacher is supervising lunch when a fifth-grade girl approaches her and says "Joe is bullying David." The teacher finds David sitting alone and asks him what happened. "Nothing," David says. "Joe took my candy bar. He's always just mean to me." The teacher asks him why Joe is mean. "I'm not good at sports," comes the answer. Joe denies doing anything wrong, and says David "gave" him the candy bar. The teacher regards this as an argument between the boys, makes Joe return the candy bar, and does not report the incident to anyone.
What the teacher doesn't know but which would have been discovered in a more thorough investigation of the situation, including interviewing student witnesses, is that Joe often teased David about sports because he regards him as effeminate, and David was simply ashamed to describe why he was being targeted when the teacher asked him. Joe has called him a "fag" and a "queer" and has told him that he will punch him for being so "gay." When this finally comes to light, David has headaches and stomach aches and does not want to go to school. His parents are furious that months have now gone by during which their son was subjected to bullying based on gender and they did not even know what was happening.
No one in this scenario violated the proposed district bullying policy. (Indeed, it's not even clear that the bullying policy would apply to this case at all, given the narrow definition of "bullying" chosen by the district -- a separate problem which will be the subject of a future blog post.)
By default, because the policy provides no guidance, the teacher or the principal must make a quick decision whether or not the bullying is based on a discriminatory motive, based on whatever information they have at hand. The decision must precede the investigation because the procedure that will be followed is determined by it. And, as discussed in my last post, if the teacher decides that the bullying is not based on a protected status, she is required to tell no one.
Even district lawyer Dora Dome, the policy's author, admitted to the Weekly that people won't understand what a protected class is and staff will need training on how to make that determination and to "err on the side of caution."
There are other failure points in the policy. For example, the requirements for documentation at the site level are unclear and the language is confusing. The principal is to document in writing all complaints "regarding discrimination, or other forms of, harassment, intimidation, and/or bullying," and then ensure that "all complaints of discrimination, including discriminatory, harassment, intimidation, and/or bullying based on a protected status" are sent to the Compliance Officer. Requiring principals to parse this dense, tightly worded paragraph --- which actually provides two different sets of documentation requirements in very similar language -- is a prescription for error.
Because the policy is completely novel and not in use elsewhere it is impossible to say what the error rate will be, but we can safely predict that there will be problems.
Moreover, the new two-tier procedure creates incentives that make errors more likely. Most people do not want to call the attention of their supervisors to situations that will lead to scrutiny of their own work and methods, and cause them to have to spend time on investigations and paperwork. Teachers do not necessarily want to report things to principals and parents that they feel that they can handle themselves. Principals likewise may feel nervous about reporting things to the district office and generating an investigation of bullying at their site. Even if everyone has the best of motives, it is easy to see how cases might be retained at the site level rather than reported as potential discrimination.
Thus, while the two-tiered approach may be legal on the face of the policy itself, it is quite likely to lead to illegality as applied to actual cases.
Ensuring Timeliness. Earlier this week, Kevin Skelly told the school board that he supports the two-tier policy despite the criticism it is encountering in the community. Skelly contended that the Uniform Complaint Procedure, which is mandatory in cases of discrimination is a "lengthy and prescribed process that allows 60 days to find resolution." According to Skelly, the two-tier procedure is better because it will provide a "much quicker timeline for students who are not in the legally protected categories as a proactive step to resolving any issues as quickly as possible."
There are several problems with Dr. Skelly's rationale. First, under Palo Alto's new UCP procedure, there is a 10 day window during which any complainant can choose informal resolution at the site level. Records will be kept and at the end of the 10 days, the principal must report to the Compliance Officer whether the effort at informal resolution was successful. This means that even if the UCP is applied to all bullying complaints regardless of whether the target is in a protected class, many cases would still be resolved quickly at the site.
Second, the 60 day time limit to reach a determination under the UCP is a maximum, not a minimum. The district is permitted to resolve complaints sooner than 60 days. It can resolve them at any point. The district controls the speed of the investigation and resolution. There is nothing that must occur pursuant to the UCP that is so burdensome that it cannot be done more speedily.
In addition, the Site-Level Investigation Procedure is not necessarily quicker at all. That's because even though a principal is to issue a decision within 15 days, if the parent disagrees with that decision they can appeal it to the district, which has no time limit within which to decide that appeal. There is no guarantee that "non-protected" status children in the second tier of the procedure will have a final resolution within 60 days. The idea that the Site-Level Procedure is quicker may well be illusory. It could take longer than the UCP.
Promoting Accuracy. Most importantly, the goal in bullying cases is not speed, it's accuracy. We want accurate, clear resolutions that ensure safety for targeted children and pedagogically appropriate consequences for accused students. All of this should be handled in a thoughtful manner. Meanwhile, the UCP provides for the district to create interim accommodations for victims to ensure that the bullying stops and the effects are remediated during the investigatory period. There is no need to rush to judgment -- although there is also no need to take the full 60 days maximum allowed under the law in every case.
Increasing Consistency. Treating all incidents equally under the UCP will lead to predictability and consistency. Everyone in the situation, from teachers, to administrators, to parents will know what to expect when a bullying complaint is made. All complaints will be handled according to the same system. As the CSBA model policy states, "CSBA strongly recommends that districts use their uniform complaint procedures when investigating all bullying incidents to ensure consistent implementation by district staff."
The two-tier policy lacks this clarity and consistency. It will prove needlessly burdensome to staff, who should devote their time to teaching not to becoming expert in anti-discrimination law. It is also confusing to parents who should have a clear understanding regarding how complaints will be handled, and should have confidence that they will be notified of any bullying incident that involves their child.
Enhancing Transparency. Following a uniform policy will increase transparency. All complaints will be logged and recorded in a centralized system as required by law. This will allow for data collection that will provide insight into bullying frequency in the district, and also into such questions as whether disabled and gay students are in fact bullied more than their peers.
District consultant Dora Dome told the Weekly that she invented the two-tiered procedure because she believed that there would be "hundreds of complaints a month" of ordinary bullying that would overwhelm the district office. This is extremely dubious as a factual matter. But if it was true that PAUSD has thousands of bullying complaints per year, it would be indicative of a very serious problem in a district this size. The district would be well-advised to track and resolve that many complaints in a systematic manner so that it can find out what is wrong and fix it.
On that note, using a standardized UCP process for all complaints will enable the district to link the number of bullying incidents to the variety of bullying prevention programs that are in place at the various sites. A recent California state audit of school district implementation of anti-bullying laws recommended that district use UCP complaint logs to help gauge the effectiveness of their prevention programming. In a matter of just a few years the district will have accumulated evidence that will help determine which of these prevention programs is working better and which are working less well.
Preventing Liability. As district consultant Dora Dome states in this video, civil litigation against school districts due to bullying is on the rise.
Increasingly, litigation over bullying is not limited only to those cases in which there was discrimination. In Texas, a family recently brought a $20 million dollar suit against middle school administrators after their 13-year-old son, Jon Carmichael, pictured above, died by suicide following severe bullying that occurred "for reasons no one quite understood" and which was allegedly mishandled by the school. Some of Jon's friends thought maybe he was bullied because he was short.
As discussed in my last post, Florida pre-teen Rebecca Sedwick was bullied by other girls for reasons having nothing to do with being in a protected class. Her family is also suing, and some media accounts suggest that the school may not have responded adequately. While suicide is complicated and should not be attributed solely to bullying or any other single cause, it is indisputable that bullying harms and damages its victims.
One basis for such suits is that the district ignored its own policies -- a real risk with Palo Alto's exceedingly complicated, vague, and confusing procedure. While bullying cases have not found much traction in the courts to this point, that could easily change given the increase in the number of cases being filed. But even if a case does not go to trial, the legal fees and negative publicity associated with it argues in favor of adopting the UCP for all instances of bullying.
Promoting Fairness. Finally, it is just fundamentally unfair to treat bullying complaints differently and accord greater rights to victims who are bullied for discriminatory reasons. These are complaints about children who are in many cases being made miserable by the abuse they are suffering. Some are experiencing anxiety or depression. Some will contemplate suicide as a result. Some will want to stop attending school. We should want no one to experience this and should want to use the best, most equitable procedures we can in order to ensure that when bullying is alleged to occur we have procedures in place that are designed to provide a prompt, impartial investigation that will stop the bullying.
While Palo Alto has made progress in developing its new complaint procedures, it has also made the task needlessly complicated. The new two-tier bullying complaint procedure should be discarded. Instead, PAUSD should follow the advice of the California School Board Association and OCR and utilize the UCP for all bullying complaints.