"Let me reassure you that this delay in board policy and regulation has in no way affected our compliance with laws intended to keep students safe," Skelly told parents in a November 22 email. Board member Melissa Caswell echoed Skelly, telling the Daily Post on November 21 that "even though the policy hasn't yet been approved, changes are already in place and the district is abiding by the law," and trustee Barbara Mitchell carried the same message: "Our district has not waited to comply" with the law.
In fact, a close analysis of the law and facts prove otherwise. PAUSD is not complying with state and federal anti-bullying laws.
PAUSD's Policies Need an Overhaul. In December 2012 the US Department of Education Office for Civil Rights found that the district's handling of the severe bullying of a disabled girl at Terman Middle School had violated her civil rights. That finding made it clear that the district's complaint procedures were badly in need of an overhaul. In fact, the investigators found that PAUSD had no complaint procedure for disability discrimination at all, in violation of multiple federal and state laws. In response, PAUSD agreed to revise its complaint policies and procedures for addressing discriminatory bullying by March 15, 2013.
The new policies are still unfinished a year later. That is despite the fact that a California statute, Seth's Law, which became effective in July 2012, also mandated adoption of the same procedures. The law was named for 13 year old Seth Walsh, pictured below, who took his own life in 2010 after enduring years of anti-gay bullying at his Tehachapi middle school.
But Do Policies Matter? Superintendent Skelly contends that PAUSD is already following the law in practice, even though it doesn't yet have the required policies and procedures in place. "We're not violating Seth's law, we just don't have policies about Seth's law," Skelly told anxious parents who attended the Board Policy Review Committee (BPRC) meeting on December 3. According to Skelly, the procedures are not that important. "As long as we're following the law, that's the most important thing."
Is PAUSD really "following the law" on discriminatory bullying?
In order to answer this question, we first have to understand what the law requires. Then we can compare our current policies, procedures, and practices against those requirements. Both state and federal laws contain similar specific procedural requirements that school districts must follow in addressing complaints of discriminatory harassment, bullying, and intimidation.
California Law. The State of California requires that all complaints of discrimination, including bullying based on a protected status, be resolved using a "Uniform Complaint Procedure" (UCP) prescribed by California Department of Education regulations. Under these rules:
"Within 60 days from the date of receipt of the complaint, the district shall conduct and complete an investigation of the complaint and prepare a written decision. During this process, the person responsible for the filing of the complaint is to be given the opportunity to provide evidence he/she believes supports the allegations. The district decision should include: (1) findings of fact; (2) conclusions of law; (3) disposition of the complaint; (4) the rationale for such disposition; (5) corrective actions, if necessary; (6) notice of the right to appeal the district's decision to the California Department of Education (CDE) within 15 days; and, (7) the procedures to be followed to initiate such an appeal. If the school district fails to follow any of these rules a complaint can be filed directly with the CDE." See Cal. Educ. Code § 234.1; 5 CCR §§ 4631; 4900; 4962.
These Requirements Are Not New. District lawyer Dora Dome stated at the December 3 BPRC meeting that Seth's Law added a new requirement that districts "create a complaint process for protected classes." But this is incorrect. The requirement that districts use the UCP to investigate discrimination complaints is not new at all.
The regulations mandating the use of the UCP for discrimination complaints were issued more than 20 years ago, in 1991, and were updated in 2005. As a September 4, 2012 letter from CDE's general counsel Amy Bisson Holloway sent to all school superintendents indicated, no new procedure was required. Rather, "these complaints will continue to be processed through the (district's) UCP."
Discriminatory bullying is simply one form of discrimination and districts were always required to handle them like any other complaint of discrimination. But PAUSD evidently never did so. The district's log of UCP complaints, required under state law, contains only one complaint since 2007 even though there have been several highly-publicized discriminatory harassment complaints since that time.
What Did Seth's Law Do? Substantively, Seth's Law didn't change the existing rules regarding discriminatory harassment, including that based on sexual orientation and gender identity, with the exception of the added requirement that school personnel must intervene to stop discriminatory harassment that they witness. (A different law, AB 887 that became effective January 1, 2012 refined the definition of gender to include "gender expression.")
Rather, Seth's Law clarified the existing rules and increased the pressure on laggard districts such as PAUSD to comply with the law. It required districts to amend their policies to explicitly bar discriminatory harassment, intimidation, and bullying; to list all protected classes in the policy; and to specify that complaints will be handled through the UCP. Districts were also required to publicize the policy and complaint procedure to students and parents.
School Districts were required by law to be in compliance with these requirements by July 1, 2012. PAUSD failed to meet that deadline, and is one of only 20 percent of districts statewide that failed to comply with the law according to a State Auditor's Report. Nevertheless, on April 4, 2013, PAUSD student services coordinator Brenda Carillo informed the California State Auditor that PAUSD had already "adopted" a process for handling discriminatory bullying complaints; that it utilized the UCP in such cases; that it had tracked such complaints for the past five years; and that it had "implemented best practices for handling discrimination, harassment, intimidation, and bullying complaints that exceed what is required by state law." None of these statements to the State Auditor appear to be accurate.
Does PAUSD Violate Seth's Law? Superintendent Kevin Skelly says that "We're not violating Seth's law, we just don't have policies about Seth's law." But that statement is nonsensical, since the primary directive of Seth's Law is to adopt and publicize policies and complaint procedures regarding discriminatory harassment. Not "having policies about Seth's Law" does "violate" Seth's Law, since "having policies" is precisely what the law requires.
Palo Alto's current policies and procedures for addressing complaints of discriminatory harassment simply do not comply with Seth's Law, or even with the state civil rights laws as they existed prior to the enactment of Seth's Law. See 5 CCR §§ 4610; 4621; 4622 (2005). The problems with legal compliance are numerous and often obvious.
To take just one example, many of the protected classes are left out of the policies, seemingly at random. Under state law, the categories required to be included are: disability, gender, gender identity, gender expression, nationality, race, ethnicity, religion, sexual orientation, genetic information age, sex, and color, as well as the perception of having any of these characteristics, or association with a person or group with one or more of these actual or perceived characteristics. See Cal. Educ. Code §§ 200; 220; 234.1; 422.55; Cal Gov Code § 11135; 5 C.C.R. § 4610(c) (2013).
Palo Alto's currently adopted UCP fails to include religion, disability, age, sex, or sexual orientation among the protected classes. The district's nondiscrimination policy fails to include gender identity, gender expression, genetic information, and association with a person or group with actual or perceived characteristics of these groups, while the policy prohibiting hate-motivated behavior leaves out disability (but does include something called "attributes" which is not referred to in any of the relevant laws), gender identity, gender expression, nationality, color, genetic information, age, perceived membership in any of these groups, or association with a person or group with actual or perceived characteristics of these groups.
This isn't merely a technicality -- one of the primary problems noted in the 2012 OCR finding against PAUSD in the Terman case (see p. 7) was the lack of any mention of disability discrimination in the district's complaint policy and school handbooks that are intended to guide district staff in investigating complaints.
PAUSD's sexual harassment procedures also run afoul of California state law. Since complaints of sexual harassment are, obviously, complaints of harassment based on the protected status of sex, they must be handled through the UCP (augmented by the additional elements from OCR described below). But PAUSD's current sexual harassment procedure also fails to meet the state requirements regarding the UCP. For example, the district's policy does not require that the Compliance Officer complete a report within 60 days, does not require that the report include findings of fact and conclusions of law, and does not provide the complainant with the right to appeal to CDE.
Unfortunately, it is this sexual harassment procedure that is prescribed to be used in all cases of discriminatory harassment, according to the district's nondiscrimination policy. This means that the district's current policy is to handle all cases of discriminatory bullying through a procedure that is not the UCP and does not meet the requirements of the UCP.
Federal Law. Under federal laws such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973, school districts that receive federal funds must ensure that educational programs are free of discrimination. These laws are enforced by the federal government including OCR and the Department of Justice, and can also be enforced by parents and students who file private lawsuits when they feel that their rights have been violated.
A district's response to a complaint of discriminatory harassment, such as sexual harassment, must be "prompt, thorough, and impartial." In general, these requirements are consistent with Seth's Law and the UCP, however, federal law may impose more detailed additional procedural requirements in certain areas, particularly sexual harassment. OCR has published many guidance documents to help schools understand the required procedures.
Does PAUSD Violate Title IX? In the case of sexual harassment, the most recent federal guidance document is a Dear Colleague Letter (DCL) from April 2011. The district's current sexual harassment complaint procedure has numerous deficiencies when compared with the requirements spelled out in the DCL including that it does not include sexual violence (DCL, p.3), nor does it properly address complaints regarding sexual violence or harassment that initially occurred off school grounds (DCL, p.4). It doesn't specify that the complaint process applies to harassment by employees, students, and third parties (DCL, p.8). It doesn't specify that the district will use a preponderance standard for investigating allegations of sexual harassment and violence (DCL, p.11). It doesn't discuss confidentiality (DCL, p.5). It specifically provides for mediation, even though OCR has determined that mediation is never appropriate in cases involving sexual assault, and recommends that policies specifically bar it in such cases (DCL, p.8). It has no timeframe for the resolution of complaints (DCL, p.8). It also does not designate a single compliance officer and does not provide training for that officer in sexual violence (DCL, p.7).
PAUSD is currently undergoing a full federal "compliance review" of its sexual assault and sexual harassment policies and procedures that was initiated by OCR in the wake of the highly-publicized "rape culture" at Paly. These flawed policies will doubtless be part of that discussion.
Disconcertingly, many of the problems with the sexual harassment policy under federal law are not corrected in the new draft of the sexual harassment procedures that was released to the public at the December 3 BPRC meeting. For example, PAUSD's new proposed sexual harassment policy and procedure still does not rule out mediation in cases of sexual assault (AR1312.3, p.5), still does not specify the preponderance standard for investigations, still does not specify that it applies to harassment by employees, students, or third parties, and still fails to correctly describe the district's obligation to address the "continuing effects of off-campus sexual harassment in the educational setting" despite the fact that the CSBA model sexual harassment procedure includes a note about this requirement, and it is incorporated into PAUSD's new draft bullying policy (BP 5131.2(a), p.3.)
Summing Up. In sum, PAUSD's current policies and procedures do not meet the requirements set by state and federal law. And because much of the law in this area consists of mandates that the district adopt and publicize specific policies and procedures to guide students, parents, and staff, this is not a technical or minor flaw.
Nevertheless, Skelly, Caswell, and Mitchell all argue that the district is following the law in practice even if all the new revisions are not yet adopted. The policies are under development and in the meantime, Skelly and the board members claim, PAUSD has already implemented the legally required rules. Even if the current policies don't say that PAUSD is using the UCP, or misstate the UCP's requirements, they contend that in practice PAUSD is handling complaints as required by law. "Changes are already in place," Ms. Caswell argued. "The district is abiding by the law."
Regrettably, recent experience shows that is is not the case. In my next post, I will go over this evidence in detail.