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About this blog: There are few issues more controversial and emotionally charged than education in Palo Alto. For this reason, I have chosen to write under the pseudonym Edmund Burke. Burke was an 18th century philosopher, statesman, and political...  (More)

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Despite Denials, PAUSD is Not Complying with Anti-Bullying Laws

Uploaded: Dec 17, 2013
Palo Alto school superintendent Kevin Skelly and members of the PAUSD School Board launched a public relations offensive last month in an effort to reassure parents that the district is following federal and state anti-bullying laws. The district has faced increasing criticism for its failure to implement legally required procedures for handling complaints of bullying based on a protected status such as race, sexual orientation, or disability.

"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.

Comments

Posted by What a Shame!, a resident of Barron Park,
on Dec 18, 2013 at 8:40 am

Edmundo, I admire the time and dedication you put to this issue. I wish more people will join you, so we could hold the district accountable for this discrimination case.I am glad you do not give up. Hopefully one day Skelly and the board members will open their ears and really listens to you before they are found at fault again for not protecting special education children against bullying. They are taking too long. How can this happened in our district and to our kids? What else can we do?


Posted by Resident, a resident of Another Palo Alto neighborhood,
on Dec 18, 2013 at 8:54 am

I am confused. Is this an anonymous blog? Can PAW bloggers choose any name they like?


Posted by Claire I Fye, a resident of Duveneck/St. Francis,
on Dec 18, 2013 at 6:57 pm

@Resident
Read the intro to the blog that explains the reason for the pseudonym. You can contact the editorial staff if you want to create your own PAonline blog.

EB thanks for a clear and easy to follow summation of the issues.


Posted by Resident, a resident of Another Palo Alto neighborhood,
on Dec 18, 2013 at 7:07 pm

Yes, I read the intro, but I have seen someone with this name posting on many occasions and assumed (wrongly I presume) that it was a real person with that name. It seems that anyone can call themselves any name they choose but there is no way to know if that is a real name or a pseudonym.

I use "Resident" to prevent my identity. I could call myself a famous person but didn't think that was a good idea. I could call myself J Doe and it might be assumed it was a pseudonym, but Edmund Burke was much too subtle for me to work out as a pseudonym, I'm afraid.


Posted by Edmund for PAUSD!, a resident of Professorville,
on Dec 18, 2013 at 7:58 pm

Let's save money and hire Edmund Burke to be the attorney for PAUSD. He clearly knows and understands the law much better than Kevin, Charlie, Brenda, the Board and all of their expensive attorneys.

Amazing how fundamentally simple the corrections are that need to be made to get in compliance. Amazing how articulate and clear Edmund is in spelling these out. Amazing how much effort the district is putting into resisting these changes.

How much has PAUSD spent so far defending itself from malpractice and non-compliance?

Do we really want to keep an administration that is more interested in protecting the rights of privacy of the bullies than curbing the suffering of the victims?

Is having local control more important than making sure we protect our kids the best we can with the best practices around bullying?

I love getting educated about the law but hate seeing how much effort PAUSD is expending in fighting it!


Posted by Duveneck parent, a resident of Duveneck/St. Francis,
on Dec 18, 2013 at 8:28 pm

Reading this very clear explanation, I am struck by several points that are concerning me.

First, there is just a general lack of competence and a high degree of sloppy work going on in the school district.

Second, our elected officials who are supposed to be exercising oversight seem to be enrolled in telling fibs to reassure their constituents that all is well, when it isn't. Melissa and Barb, we elected you to be an independent oversight, not to be cheerleaders.

Third, there must be some standard policies that the school district can just use, rather than trying to make this up without apparently the skill or knowledge to do it right.

All in all, a badly managed public agency and some amateur school board members, nobody doing a particularly good job. A sad showing where a good showing is what's needed.


Posted by How did we get here?, a resident of University South,
on Dec 18, 2013 at 9:22 pm

How did we end up in this mess? What is so magical about decentralized site-based autonomy? Especially school site power run amuck with no checks and balances through any reasonable appeal or oversight?

Maybe if we can figure out how we got here, we can figure out how to get back?

I have heard that there is worry about "escalating" problems to the district level. That putting them at the district level would overly "criminalize" run-of-the-mill student run-ins. What do these folks think actually happens at the district level? Are there examples they are thinking of where district involvement overly punished someone? Since we have not seen any bullying cases handled by district staff, who knows what they will actually do? Shouldn't we be focusing our energies on making sure at least ONE person in the district office knows how to follow the law and manage bullying complaints and problems correctly?


Posted by Chuck Chuck Young, a resident of Addison School,
on Dec 18, 2013 at 9:30 pm

We should chuck Chuck Young out of his job as district compliance officer. What does he do all day long while he is not following the law? Not working on ensuring all of our students and staff are safe? Is he getting kick-backs from all the legal folks he is keeping busy trying to defend his gaffes?

Time to go Charlie Young!


Posted by village fool, a resident of another community,
on Dec 18, 2013 at 9:55 pm

Thank you!
With all due respect to your incredible research, I still dare to think that this is a waste of your time. These policies are the laws of the land, the laws of PAUSD.
There is no separation of authorities in PAUSD. I am aware that this is the situation with all school districts (and I question this situation) but, as you mentioned, very few school districts were found at fault by the OCR.
This is a part of the reasons that had me address Mr. Dauber again, calling for him to reconsider forming a PAUSD Shadow Board. I posted the following on my blog (Web Link):

Dear Mr. Dauber,

I addressed you back in March calling on you to form a PAUSD Shadow Board (Web Link). To be clear, by "Shadow Board" I mean an external, unofficial committee which will review and monitor the official school board's activities and input from the public. (Shadow Cabinet – Web Link).

I am writing to you now, asking you to reconsider my appeal. I'll try to explain my rationale for asking you again. All that I wrote in my March Address still applies. I am posting my March Address below.

I addressed you in March when many community members assumed that some kind of investigation committee would be formed to look into the PAUSD issues. I wrote my March Address assuming that such a committee was not about to be formed. That is really water under the bridge.

My March Address was the result of my wish to see an outside "check" (as in checks and balances), my wish to see attention to moral and ethical issues that may impact all the children. My desire is to enable clarity and accountability vs. the apparent ongoing cover up actions.

Obviously, I could not foresee any of the events that presented themselves afterwards. I'll just mention a few things that have since come to light: info about secret meetings to check the feasibility of challenging the OCR's jurisdiction, keeping a new investigation out of the public eye, having committee discussions in violation of the Brown Act, etc., etc., etc.

A Shadow Board is a very unusual suggestion. I think that at this point in time, when so many seem to have lost trust in the leadership, there is really nothing to lose. I am suggesting to form a Shadow Board comprised of members that you respect and trust. Several names were mentioned back in March. I do realize that should the community respond to your call to come forward with info about incidents, implementing all I suggested in March is a full time job. I am thinking that the board might investigate few test cases and bring visibility by listing the rest. I think that community members who support your cause will be willing to volunteer to handle the administrative issues that such an operation calls for. Looking back, Eileen 1, for example, comes to mind. I do not know her.

I think that if community members respond to your call as the leader of such Shadow PAUSD Board, and come forward, trusting you and your board's judgment, trusting you and your board to keep the children's details private, some patterns may become clear.

I think that a clear statement is called for. A statement that does not define policies without looking into reality. A statement that all children are important. A statement of real interest in – What is going on here????

I hope you will consider my appeal

Thank you

village fool


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 18, 2013 at 11:11 pm

@What a shame and Clare, thank you for your posts. It is my hope that a clear explication of the issues may help to generate support for correcting some of these problems.

@Edmund for PAUSD, thank you for your post. In my experience in similar dealings, good policies for PAUSD would take at most one week to produce. There have been a host of consequences as a result of failing to create legally sound policies which I will cover in my next post. The key is that these laws that I describe above are mandating the creation of policies for a reason. These are not arbitrary hoops that districts are made the jump through for no reason. Policies and procedures guide students, parents, and staff when problems arise. Without them, people are forced to improvise and much of that improvisation will be wrong. In the absence of policies, procedures, notices, and the like, parents have no way to know whether or not the responses they are receiving at the site level are correct, or what they can do if they disagree. Policies and procedures, for the district, constitute the rule of law.

@Duveneck Parent, As I said in my comment to @Edmund for PAUSD, the drafting of high-quality and sound policies for the district would take at most one week to produce. Competence may be an issue. There may be other things at work in producing the delay as well, given that at least one board member (Ms. Mitchell) publicly questioned the authority of OCR over the district.

@how did we get here. Thank you for your comment. I agree that site-based control has played an unhelpful role in improving bullying procedures. As Weekly writer Terri Lobdell's excellent reporting on this topic has shown, every site has its own definition of bullying, it's own bullying prevention programs, and it's own method for responding to bullying. Organizational practices are typically resistant to change and this is no exception. That is why clear, consistent, simple procedures that comply with the law and are driven from the top are so important.

That is also why it is important to have a clear delineation of the District Compliance Officer's role and responsibilites, and to provide that person with excellent training as you suggest. The longer the district lacks clear direction on this subject, the harder it will be to steer a more appropriate course, as I will show in my next post. Stay tuned.

@chuck. I agree that Dr. Young's performance in this role suggests that it might not be the best fit. I would recommend hiring a part-time compliance officer with legal training, preferably in employment or other discrimination law. His or her first task could be to complete these policies quickly. There are many available candidates who attended top 5 law schools and practiced in elite firms prior to having families who reside in the Palo Alto area who would probably like to apply for a part-time opportunity. This would be, in my view, a far better use of district funds than a Public Relations officer.

@village fool. Thank you for your comment. I agree that an independent investigation would help to illuminate whether the problems OCR found at Terman are more widespread, and how they can best be remedied. Regrettably, the school board has not chosen to address this issue in public but in closed meetings that exclude the public.


Posted by village fool, a resident of another community,
on Dec 19, 2013 at 12:50 am

Back in the summer, a parent tried to suggest technical improvements to how the public can participate in board meetings. I noted that no technical application can change the district officials\' or board members\' will to actually listen.
I think that was an interesting thread, it touched several issuses (Web Link)
That discussion reminds me of the issue here. Do you think that the previous policy is the real cause of the issues the OCR investigated? Parents with easy access to private lawyers had no need for improved policies before, that situation will remain unchanged. I doubt that those who need the new policies can benefit from them without any other changes, such as a change of the accountability standards.


Posted by Former Paly Parent, a resident of Palo Alto High School,
on Dec 19, 2013 at 8:54 am

As a lawyer familiar with this area of the law, I would like to commend Mr. Burke's thorough, sound legal analysis of these important issues. Thank you, Mr. Burke, for your efforts.


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 19, 2013 at 9:04 am

@village fool. You raise an interesting issue. It is hard to know how the board and district staff might behave if they had correct, legally compliant policies since they do not have them. PAUSD hasn't seen what effect that might have, so it is hard to discount it. I suppose if the district had correct policies that were clear, and it had a clear consistent message from the top down that all sites are expected to follow these procedures, and that legal difficulties that developed (such as OCR investigations) as a result of not following the policies will be dealt with appropriately, and we still had widespread flouting of the law -- then you would be correct. We don't have that situation.

Let me say why I think having corrected procedures will matter. PAUSD has a lot of what I just referred to as "flouting" behavior, in which administrators simply fail to follow the law. Up to this point, a reasonable claim could be made by everyone below the level of Charles Young (who is responsible for knowing it) that they didn't know the law, didn't know what they were supposed to be doing, and that when they refer to the procedures and policies, they just couldn't tell. Teachers couldn't tell, principals couldn't tell. These are good people who don't want to break the law, but they had no idea what to do.

The episode of so-called rape culture at Paly that involved a possible Title IX problem is an excellent example. In that case, a student was reported in the student newspaper saying that she was raped off campus and then suffered severe bullying and retaliation and gossip on campus as the result of having reported the rape. As a result she said she left Paly. This is a set of facts that if true clearly triggered the district's obligations under Title IX.

However, the district's policies and procedures are wrong. They don't include sexual assault, even though it is a severe form of sexual harassment, and they don't indicate anywhere that the district has an obligation to respond even where the initial harassment occurred off campus if the effects are brought on campus. They don't say that a school can have an obligation to investigate even if the victim does not want to cooperate under certain circumstances where safety is implicated. They don't say that the victim is entitled to accommodations even if she does not want to proceed with the investigation. They don't say that the school may have an obligation to implement systemic remedies and training in order to address the very "rape culture" that was the subject of the story.

One could argue that it wasn't ambiguous at all -- the need for a Title IX investigation was obvious because the bullying and harassment that the student endured were "because of sex" (related to the sexual assault) and that regardless of where the assault took place, the bullying and harassment were happening on campus, so Title IX was implicated. You don't have to be a lawyer to understand that. There is something to that.

But to me it seems to be asking a lot from PAUSD's teachers and principals to expect them to know things that are either not in the policies or are expressly contradicted by them. The district should make this easy, not hard, for our staff to do the right thing.

The way to do that is to have clear, transparent, legally accurate information in the handbooks, policies, and procedures, and to have a Superintendent, a Board and a Compliance Officer who are fully versed on all the requirements and who send a clear message throughout the organization that compliance with these clear rules is expected.

It is hard to conclude, as you do, that it won't work to improve outcomes since it has never been tried (or at least not recently).


Posted by Management please, a resident of Crescent Park,
on Dec 19, 2013 at 10:29 am

@How did we get here?
It isn't hard to understand. Weak management combined with a weak school board, so that no one is really minding the store. Combine that with a school board member (Barb Mitchell) with a libertarian philosophy that pushes against compliance with state and federal law, and for devolution of authority to the school sites. The end result is what we see.
I don't think there is much ill will here, it is mostly just plain incompetence.


Posted by Resident, a resident of Another Palo Alto neighborhood,
on Dec 19, 2013 at 3:41 pm

I tend to agree with the fact that there is mainly incompetence on PAUSD board rather than anything else. They are all well meaning people who devote a great deal of their time and their energy into the time required to be board members. I have spoken with most of them at various times and I really like them as personable people.

But, we do not need a board of nice, willing people. We do not need a board who is the extension of the PTA. We do not need a group of people who spend most of the meetings patting each other on the back as well as District staff.

What we do need is a professionalism which we do not have and willing people who are not there to mark time, but to make some changes without fear of consequences.

The big point is where are we going to get people like this. In our last elections we did not have many to choose between. Ken Dauber did manage to make a lot of noise and in the process managed to upset a large number of people. He was not afraid to upset people and perhaps this is the sort of person who is needed. I am not saying that I agree with him 100%, but I don't necessarily feel that I have to agree 100% with every single board member. We need to have a board who are willing to thrash the issues out, who don't always agree on every issue and are willing to take the time to do their homework. They need to talk to the very many members of the electorate who have expertise in various aspects where they lack expertise. They need to be one step ahead of the rest of us rather than hearing the news from the media. They need to not be afraid to make some enemies and to speak up when it hurts.

I am not sure if people like this have been willing to run for election in the past and if they have, they have not been getting the votes necessary to win. Perhaps in the next round, we can have some real choices for a new PAUSD board.


Posted by Professorville mom, a resident of Professorville,
on Dec 19, 2013 at 5:46 pm

@Resident I agree with you 100%. I know two of the school board members and I have seen them all at different school events. They are all nice but I don't feel that any of them are really taking a critical look at what is going on in the district.
I don't know much about Ken Dauber but I do feel that he would not have been silent through all of this. School board members are supposed to be the public's eyes and ears and I feel that our current members are not doing this. Instead they seem to be cheerleaders. That is OK if the people you are cheering are doing a good job but right now they are not.
I hope that we get more choices in the next election. More candidates from the same mold as the current board is not going to be a help.


Posted by parent, a resident of Palo Alto High School,
on Dec 19, 2013 at 8:38 pm

I find it interesting that Edmund Burke thinks a good policy can be written in a week. Michelle Dauber, a respected lawyer at Stanford, said that Stanford's sexual assault policy needed work, and had for several years. It was my understanding that it took them three years to come up with a policy. I'm not sure why Edmund Burke thinks it is so easy. Even Stanford can't do it that quickly. I'm glad Stanford got it done. Looks like it took a lot of people and a lot of time. Not sure that the bullying issue in public schools is any less complicated but people are sure in a hurry. Unfortunately, a policy on how to handle the complaint does nothing to stop the behavior. Seems a little strange that we are focusing so much on how to report and punish rather than prevent. Below is a quote from Ms. Dauber that was published in the Stanford Daily.

"Sadly, real data was presented at this meeting that was never reported in the Daily about the lived experiences of victims of sexual assault at Stanford.First, the fact is that for many many years Stanford's sexual assault policy has been badly in need of revision. Between 2002 and 2009, Stanford reported 104 sexual assaults under the Clery Act to the Department of Justice. Of these, just 16 were reported to the OJA. And of those, only 3 went to a hearing. That's 3 hearings, for a reported total of 104 rapes, or less than 3%. That is because there were structural features of Stanford's policy that made it very unlikely that victims would pursue any action. This left victims feeling unsafe, and potentially put the entire Stanford community at risk since we had such a high rate of sexual offense with no action taken by the University.

These factors led the BJA to work over a period of years, in a process that involved faculty, staff and students, in developing a revised plan. The plan may not be a perfect one, because no plan is, but it is very good. And it is working. The process is much more efficient, and much safer for victims."


Posted by Humanities prof, a resident of Stanford,
on Dec 19, 2013 at 10:34 pm

@parent, I think you are mixing apples and oranges (I have a child at Gunn and followed the debate over sexual assault policy at Stanford, so I have some dual interests here).

The change that Prof. Dauber led was about disciplinary policy for students accused of sexual assault. At Stanford, the judicial system is run by students so any changes to it need approval from the student senate and the graduate student organization, along other bodies like the faculty senate. Getting everyone to agree to the details on questions like burden of proof took a lot of time and discussion.

The policies that Mr. Burke is writing about here are not about discipline, as far as I know. They are about helping the victims of bullying and harassment. Also, I believe that the only body that has to approve PAUSD's policies is the board of education.

As far as I know, Stanford's policy was always compliant with the law. What I am finding puzzling and I think the Weekly also pointed out, is why it is taking so long for PAUSD to finish this. I think there are even model policies that we could just adopt? I would like to know that my daughter is protected by a sexual harassment policy.


Posted by parent, a resident of Palo Alto High School,
on Dec 19, 2013 at 10:57 pm

@Humanities prof: Seriously? Getting everyone to agree on details takes a lot of time? You\\\'re absolutely right. There is no clear understanding or even a definition of what is bullying and harassment. The only approval needed is the board of educations? Since everyone feels they have the right to question what the board of education decides, no wonder they are taking time to make the right decisions. Also, please find me a school community that has a good policy that has actually made a difference in their bullying and harassment rates. It\\\'s all about the punishment after the fact. A little shortsighted in my opinion. Wouldn\\\'t you also like to know that your son or daughter is protected when charged with sexual assault?


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 19, 2013 at 11:23 pm

@parent -- you wrote that "There is no clear understanding or even a definition of what is bullying and harassment."

This is incorrect. The definition from federal law is: "Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student's ability to participate in or 
benefit from the services, activities, or opportunities offered by a school." When that harassment is based on a protected status under state or federal law, it violates the law. See Web Link

This definition is consistent with that in state law, which is found in Cal. Educ. Code Section 48900r(1) and 48900.4. See:Web Link

The definition of discriminatory harassment has been in effect for a long time and is well-understood. However, even if there was a controversy over the definition, it should not take a year to resolve it, particularly when under the pressure of an OCR finding of noncompliance.
 


Posted by parent, a resident of Palo Alto High School,
on Dec 19, 2013 at 11:40 pm

EB: what creates a hostile environment is up to interpretation. I'm not saying this is right, however, it is difficult to ascertain what the two sides of a story are. Hence, the problems, I imagine, the staff, faculty and students had at Stanford when coming to an agreement about sexual assault. Sexual assault is a violation of the law, no? Why did it take Stanford 3 years to come to a policy statement? Apparently, some universities and colleges are still working on this as many school districts are still working on their bullying/harassment policies. Again, why aren't we more concerned preventing these problems rather than addressing them after they occur? Probably because we can't just hold the school district accountable but would have to hold parents accountable.


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 20, 2013 at 12:11 am

In this area there has been sufficient litigatation that a body of law has developed and people do know what creates a hostile environment, what is "severe and pervasive," and what it means when a student is denied the benefits of an educational program. These are legal terms that have legal meanings given to them either by statutes, by regulations, or by courts interpreting those laws. It is not simply an indeterminate definition that depends on what I think or what you think or what a member of the board of education thinks.

I believe that the Stanford professor posting above has answered your question about why Stanford's discipline policy took time. However, it should be noted that even during that period of development the new policy was already in place as an interim, pilot measure. Stanford students were not left without a sound, lawful policy as they are at PAUSD.

Colleges and universities that do not have their policies in place are now being investigated by OCR. These investigations are numerous and are resulting in very bad publicity and consequences for those institutions.

Investigations have been conducted, for example, at University of Colorado-Boulder, University of North Carolina-Chapel Hill, Occidental College, Swarthmore College, University of Southern California, and Yale. Reviews are also ongoing at Dartmouth, Harvard Law and the University of Virginia. See:Web Link

In terms of your comment about prevention, the reason policies are required is that they do help to prevent problems from becoming extreme by helping parents, students and teachers to understand what behavior is acceptable and what the remedies are. The ultimate goal is that the district will intervene effectively before a situation becomes "severe and pervasive" and thus avoid illegal situations. Policies and procedures help to achieve that end.



Posted by village fool, a resident of another community,
on Dec 20, 2013 at 6:20 am

Edmund Burke – Thank you for your detailed response!

I stand corrected. I agree with you that the tremendous research you conducted regarding PAUSD policies is not a waste of your time. I hope that you are ahead of the times.

I mentioned the law of the land many times in the past. I did not refer to policies but to PAUSD's culture and atmosphere, which I think enabled what we currently know. I hope you are ahead of the times, and that the "law of the land" will follow you.

I think you will agree that a culture of best practices would have responded differently to a parent who ended up addressing the OCR. Children are taught that by-standing is wrong. Writing to you now got me to search for and re watch LaToya Baldwin Clark addressing the PAUSD board on February 12 (link # 2, 2:10 hours). That meeting took place after the details of the OCR settlement became public knowledge. I remember watching the meeting then, and agreeing that recognizing bullying does not require knowledge of law, that having a heart should suffice. Common sense comes in handy as well.

That goes back to the law of the land, where there is no accountability, no transparency. This is a land where common sense was not exercised, a wild west where imperfect policies are irrelevant to parents who have easy access to private lawyers, and parents who do not have easy access to private lawyers end up addressing the OCR. This is a land where the OCR finds PAUSD at fault, and PAUSD keeps the OCR out of the public eye etc. etc. etc.

I hope that your approach to policies will become handy once cleanup is, hopefully, done. Given what we learned, this cleanup seems to be a huge task. By cleanup, I mean striving to achieve a culture of best practices, or at least a culture which sincerely desires best practice. Exercising transparency, accountability etc.

I think that the polices you researched are important and can be compared to policies used in modern hospitals to verify that all are following important procedures and decisions are conforming to the ethical code etc.

Sadly, it seems to me that the policies you outline are suited to situations so far removed from the current situation of PAUSD that they are largely irrelevant at this point in time. The same way as modern hospitals policies are relevant to Dr. Dolittle's practice. By this comparison I relate only to the physical conditions of Dr. Dolittle's practice.

(Copied from my blog - Web Link)


Posted by the_punnisher, a resident of Mountain View,
on Dec 20, 2013 at 12:02 pm

the_punnisher is a registered user.

At the start of this LAW BREAKING PERSONNEL ISSUE, I ask an expert if they would come out of retirement to resolve this ONGOING PROBLEM with the PAUSD and treatment of Special Ed and other students. ( The Staff knows the details of who and what that I gave them to qualify my comments. I asked for privacy and they kept it )

There is a County Consul that is set up to handle these FEDERAL issues and provide advice to the Superintendent or upper level management of a school district; my contact said this is a COMMON ACTION when dealing with FEDERAL MANDATE issues.
On that basis alone, Skelly should have been fired. and the whole Special Ed Department Staff be removed and returned to regular teaching duties or fired. THIS LACK OF KNOWLEDGE IS TAUGHT AT THE CERTIFICATION OF SPECIAL EDUCATION TEACHERS! That means that ALL LEVELS are complicit in breaking FEDERAL LAW in the PAUSD!

There is legal malfeasance at all levels and the OCR pointed that out. The OCR is literally a last resort effort. If the Special Ed Staff and superintendent had heeded that warning and PROPERLY DONE THE WORK THAT WAS ADVISED, that issue would no longer be headline news. ( These issues NEVER made the Merc headlines because my contact did the right things that were asked by the SJUSD when having a problem...that was sent immediately to the Asst Administrator\'s Office by the Special Ed teachers, which were that Asst Administrators responsibility ).

The School Board shares some of that blame. They should have conducted their own investigation of malfeasance. Instead, they just listened to the lies concocted by Skelly, instead of being the People\'s Watchdog...

Oh, the answer to the question posed at the beginning of this essay
: HECK NO


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 20, 2013 at 2:48 pm

@village fool and punisher

I believe that a clear, open, transparent and public process is what is required to resolve this cleanly with a good outcome for the district. Parents and community members have a strong interest in how these issues are resolved and should be able to participate in the reform process. Unfortunately, the public and the press have had to struggle with the district to obtain information. Even meetings of the Board Policy Review Committee to discuss policy development had been improperly held as closed meetings until the Weekly insisted last month that they be opened pursuant to the Brown Act.

There has also been far too much money expended on legal fees to negotiate with OCR. Rather the district should be working cooperatively and publicly with OCR to protect the rights of all our children. The public's right to participate in this governance issue has been seriously impeded by the school board and that should change.




Posted by Yes we can, a resident of Monroe Park,
on Dec 20, 2013 at 7:29 pm

Thank you Mr. Burke! You are very clear and it helps to understand.


Posted by Skung, a resident of Another Palo Alto neighborhood,
on Dec 21, 2013 at 7:42 am

Burke is wrong about needing a week for creating new anti-bullying policies. Actually takes a lot less time because this is a cut and paste job. The systems that Kevin Skelly had Dora Dome cook up are meant to overcompensate and divert attention from Skelly, Charles Young, and the board. This way, we can blame parents, the Weekly, and the OCR for creating this problem, and not the people who are highly paid to do these very simple tasks of "creating" (cut and paste!) and implementing policy. Kevin Skelly is not incompetent, he is excellent at keeping his job, but I have dared all brave district apologists (remember when PiE and PTA folks tried to post? They\'ve since retreated back into the silence) to defend Kevin Skelly\'s competence as a superintendent and Charles Young\'s competence as an assistant and compliance officer. They were new to these positions and were quickly overwhelmed. Look back at the events of Skelly\'s six years or Young\'s two years. They were rookies. They\'ll be better when they announce their new positions in the spring. It used to be that they didn\'t cause failures in the district, they just made them worse, but now there actions have made them much worse. So arrogant were they and their online defenders after the election a year ago, but now they are attempting to hide in the corners of the district office. Even the Weekly Communication that Skelly and Young (and Holly Wade is there, too!) has degenerated into worthless drivel, going from the juiciest gossip about employees, only for the board and other insiders, to a couple of years of cheerleading while the public, the Weekly, and federal officials called the district out with very real, systemic problems. And in just the past weeks, Tabitha Hurley has gotten into the mix and did the impossible: she made it worse. I know she was all that was out there, but was anyone advising Skelly about this hire? There was no Weekly Communication yesterday, Skelly will reflect and retool for the January 10 one, but Young has got to show an inch of depth by writing about more than the latest book of leadership cliches that he is having the principals read. What\'s next? TED talks? Reading the latest recycled business bestseller is great, but download the anti-bullying policy in Word format and type in PAUSD. Five minutes top! I\'ve been asking this for a while now: can this get worse?


Posted by village fool, a resident of another community,
on Dec 21, 2013 at 10:40 am

@Skung - you wrote: "I\'ve been asking this for a while now: can this get worse? "
I dare say, YES!
Because it seems to be about a cover up. Combine that with fear of retaliation of the weak side, secret meetings that were planned to remain secret of the "divine right" side etc. etc. etc.

Because by he end of the day it is about children's needs. I doubt things were better before the OCR came to PAUSD. We should not forget that we know about the OCR settlement ONLY because the family came forward to the Weekly.

I want to thank, again, the family who came forward to the Weekly with the OCR settlement, pointing to the tip of the iceberg.
I want to express, again, my hope that your courageous act was not wasted, and that you will see the changes that had you go to the OCR.
Wishing you and your family the best of health and Happy Holidays and New Year!


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 21, 2013 at 6:05 pm

@Skung. The reason it would not be entirely possible to just cut and paste is that PAUSD, unlike other school districts, is under the supervision of OCR to some extent. It appears from reviewing the correspondence between PAUSD and OCR that OCR would like greater assurance from PAUSD due to the Finding of Noncompliance. That appears to be manifested in the high degree of detail that OCR is requesting that PAUSD include in its complaint procedures.

A year ago in December 2012, PAUSD entered into a Resolution Agreement with OCR to settle the Terman case. In that agreement PAUSD was not required to rewrite all its policies, just to ensure that its UCP was amended to include disability discrimination and that it used the UCP for all complaints of discrimination, including discriminatory harassment.

Had that happened then, this would have been over long ago. That would have fulfilled the terms of the agreement. Instead, PAUSD wanted nonstandard provisions in its policies that would have permitted site-based handling of complaints. As negotiations with OCR dragged on for a year, it appears that OCR has engaged in a redrafting process with PAUSD in order to ensure that student rights are protected given PAUSD\'s insistence on these nonstandard provisions.

That negotiation process has complicated the drafting job, but it still is relatively simple and it always was. What has made the issue complex is the desire of PAUSD to write new policies, unused anywhere else in the state, in order to maintain the highest degree of site-based control that it can. Thankfully, Dr. Skelly has now decided to pursue simpler policies (one-tier versus two). That is a good decision but it raises a question about why the school board authorized the district to spent time and money for lawyers to argue for two-tier policies in the first place when all of this could have been accomplished more quickly and cheaply months ago.


Posted by Thankful Parent, a resident of Barron Park,
on Dec 22, 2013 at 9:14 am

I think that the job of shadowing the board must be difficult because they are in a big mess. Therefore, I propose that Village Fool, and Mr. Dauber share this job. It will be a big difference for our kids having you two there working on what is best for "all" students. The to of you are great. A thankful parent.


Posted by Confused, a resident of Professorville,
on Dec 22, 2013 at 10:45 am

Can someone explain the comment made by the punisher? Are we also seeing staff on staff harassment? Are there more violations that we don't know about?


Posted by Thankful Parent, a resident of Barron Park,
on Dec 22, 2013 at 6:56 pm

Confused, sorry to break your bubble, but Yes,Staff that has been working for longer time and have tenure bully the new comers, and yes sometimes they get to fire them.This was the case of Mr. DiSalvo. Jordan had teachers who could not left alone together in the staff room. One of them was such bully, that they had to assigned someone to be always around both of them. Very ridiculous. PAUSD is not what seems to be. Imagine what really happens to our kids if the teachers get bully and no one can stop it. You know who is one of the biggest bullies (Mr. Bowers) because if the bully teachers have good relationships with him anything goes and nothing gets done.


Posted by Whoops!, a resident of Juana Briones School,
on Dec 23, 2013 at 8:13 am

Be careful! You're about to expose the powerful teachers union that exists to muscle raises and force out the likes of DiSalvo and any other principal who dared to hold a teacher accountable. Scott Bowers is a nice guy, but hopelessly beholden to the union. Parents don't have any power compared to these folks. Except if they have a lawyer.Research the Weekly and you'll see case after case in which a lawyer made the difference.


Posted by village fool, a resident of another community,
on Dec 24, 2013 at 1:31 am

@Edmund Burke - you wrote: "... Thankfully, Dr. Skelly has now decided to pursue simpler policies (one-tier versus two). That is a good decision but it raises a question about why the school board authorized the district to spent time and money for lawyers to argue for two-tier policies in the first place when all of this could have been accomplished more quickly and cheaply months ago. "

Just to be sure I got this right:
About a month ago you posted your first blog detailing the faults of the two tier policies. Now, the district is pursuing simpler ones, therefore basically agreeing that you were correct.

Can you please share when or how this change was announced?
(I am sorry, I missed the news).

Congrats, and thank you!!!

You raised a question about the reasons for this time and money being spent on lawyers. I\'d be very interested in any thoughts you may have about the rationale responsible for this long, windy, and costly road.


Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 24, 2013 at 9:01 am

@village fool

Dr. Skelly announced at the December 3 Board Policy Review Committee meeting that he was recommending a single tier rather than a two-tier bullying policy.

However, district lawyer Dora Dome continued to press the board members to adopt a two-tier system, and board member Camille Townsend stated that she wanted to continue with the two-tier system.

Board member Melissa Caswell, by contrast, supported the single tier system, apparently persuaded by arguments made here and elsewhere that it will be impossible for staff to determine whether or not a protected class is involved prior to an investigation (which the two tier system requires). That system is certain to lead to errors in which discrimination complaints are not correctly handled under the UCP because they have been miscategorized as ordinary bullying. That would violate both state and federal law.

The split among board members will have to be resolved by the full board. Caswell is typically sensible and opts in favor of good management ideas which means that she often does not have the support of her fellow board members. Board President Barbara Mitchell has privately called OCR\'s authority over the district into question in secret emails that were mistakenly released to the public. Web Link

Dana Tom was the board president during the past year and has not scheduled any public discussion of the Terman case, nor discussion of the polices. All discussion so far has been held secretly by invoking various dubious Brown Act exceptions for closed meetings, and also in the Board Policy Review Committee which was illegally meeting in closed, non-noticed meetings in violation of the Brown Act. We have at this time no information about how the board will react.

Although I have no idea what led Dr. Skelly to change course, at the meeting he stated that he preferred to follow the recommendation of the CSBA, which made a "strong" recommendation in favor of a single tier procedure. I would also imagine that the Weekly editorial criticizing the tww-tier system persuaded him that it was unnecessarily complex: Web Link





Posted by village fool, a resident of another community,
on Dec 24, 2013 at 10:06 am

@Edmund Burke -
Thank you! Please do take credit when it is totally due.

It is my understanding that none of this was planned to get to the public eye. I hope you agree that currently there is no way to know what else is being kept out of the public eye. Maybe other secret emails were better kept?
That was part of the reasons that had me address Mr. Dauber asking to reconsider forming a Shadow PAUSD Board Web Link

(Churchill was involved with a Shadow Cabinet, at least once. I think that this photo is quite illuminating Web Link )

By the end of the day it is about the well being of so many children.


Posted by Confused, a resident of Professorville,
on Dec 24, 2013 at 7:12 pm

Thank you Whoops for opening up visibility into the adult side of PAUSD bullying. Would appreciate some more leads or references so that I can get a sense of how big the problem here is.

Am also still not sure what The Punisher was alluding to.

Why is there not more transparency here? I sense so much fear -probably because retaliation would be against our children???


Posted by village fool, a resident of another community,
on Jan 4, 2014 at 1:35 pm

@Edmund Burke -
Can you explain, please, how title IX differ from "mandated reporting"? Why "mandated reporting" did not apply before the story made it's way to the media? Do you think that "confused" question, above, may be related?
(disclaimer - my "legal education" is based mostly on older episodes of Law & Order).


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