I explained state and federal requirements regarding the required complaint procedures for discrimination and harassment, and showed that PAUSD does not meet these requirements. PAUSD has not yet complied with California's Seth's Law, which became effective in July 2012, nor has it complied with federal requirements issued in 2011 regarding sexual harassment policies.
Nevertheless, Skelly and the board members have publicly suggested that implementing these policies is less important than following the law in practice. In a November 22 email, Skelly told parents not to worry: "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." Board member Melissa Caswell agreed, 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." Trustee Barbara Mitchell followed suit, saying that "our district has not waited to comply" with the law.
In this post, I will show that this is not the case. Indeed, substantial evidence shows that the district is not following the law in practice either.
Is PAUSD "following the law" in practice?
PAUSD's New Bullying Forms. One crucial piece of evidence that has been relied upon to support the idea that the district is following the law in practice is the district's new bullying forms. Ms. Mitchell contends that these forms demonstrate "strengthened response procedures," telling the Daily Post that the new forms have "standardized the procedure the district uses to investigate a complaint."
The forms are dated October 7, 2013, and it is a bit unclear how they were developed. Although Ms. Mitchell said that they were created by a committee comprised of parents, students, and staff, that appears to be wrong. There was such a group called the Safe and Welcoming Schools Task Force but it did not develop forms. (Further confusing matters, this group had a different name each of the three times it met: the "Safe and Welcoming Schools Task Force", the "Safe Schools Task Force", and finally, the "Stepping Up To Safe and Welcoming Schools Task Force.")
The forms were apparently created by a different group called the "Stepping Up Task Force" which was comprised entirely of site-level staff members selected by the district office who worked over the summer to develop "tools that will help clarify for students, staff and parents how bullying can be reported, action that must be taken and timelines."
There are four forms:
Form A, Bullying Incident Form;
Form B, Bullying Incident Investigation Form;
Form C, Harassment/Discrimination/Intimidation/Bullying Decision;
Form D, Request for Appeal.
Contrary to Ms. Mitchell's claim that the forms demonstrate improved procedures, the forms themselves demonstrate that the district is still not "following the law" in practice.
The Forms Demonstrate that the District is Still Not Using the UCP. The biggest flaw in the district's bullying forms is that they do not mention the Uniform Complaint Procedure (UCP). This is the state-mandated procedure I described in my last post. The UCP is required under California law to handle all complaints of discrimination, including bullying based on a protected status.
These forms also contradict the terms of the Resolution Agreement PAUSD reached with OCR to settle a complaint of disability-based bullying at Terman in 2012. In that agreement, PAUSD agreed to use the UCP to handle discriminatory harassment complaints.
Under the UCP, complaints of discriminatory bullying are to be made to the district Compliance Officer who manages the investigation and writes up the decision. There are specific requirements for both the conduct of the investigation and the content of that report, which must be completed with in 60 days. Complainants must be notified of their right to appeal an adverse decision to the California Department of Education.
It is difficult looking over these forms to conclude that the district contemplates using the UCP at all. All of these forms clearly pertain to a site-level process conducted by the principal. The Bullying Incident Form (Form A) contains no information on what to do if the complaint is based on a protected status and the instructions contain no reference to protected status. There are no checkboxes for categories like "race" and "disability" that could be used to prompt a principal to send the form to the Compliance Officer. Yet the form itself, once signed, will constitute a written complaint that triggers the district's legal obligations under state law to utilize the UCP.
These forms are clearly intended to be used in cases of discrimination. Indeed, Form C is entitled "Harassment/Discrimination/Intimidation/Bullying Decision" and specifically states that the principal is required to write up a report of his or her findings that includes the actions taken to end the discrimination, to address the effects of that discrimination, and to prevent retaliation or further discrimination.
Similarly, Form B, the Bullying Incident Investigation Form, contains checkboxes asking whether the bullying is based on sexual harassment or hate-motivated violence, both of which would constitute discrimination and trigger the obligation under state law to use the UCP, yet no mention of that obligation is found on this form. None of the forms or instructions contain any indication that anyone should notify the Compliance Officer about the complaint.
There are other issues with UCP compliance. None of the forms or instructions specify that the investigation and report must be completed within the 60-day limit mandated by law for UCP complaints -- indeed, no timeline is given at all. The Investigation Form does not require that the complainant be allowed to present evidence supporting the complaint. The Decision form includes a checkbox for indicating whether the appeal process has been described to the parents, but this refers to Form D, Request for Appeal, which goes to district Student Services Coordinator Brenda Carillo, not to the legally required UCP notice of the right to appeal to the California Department of Education.
The Request for Appeal form (Form D) states on the first line that it is an appeal "in accordance with" Seth's Law, Cal. Educ. Code § 234.1. However, under Seth's law, appeal is to be to the CDE. This form goes instead to district Student Services Coordinator, and it does not inform complainants of their right to appeal to CDE as required by law. Oddly, the form refers to grounds for an appeal that seem to have no relationship to discriminatory harassment. For instance, the appellant is asked to "explain if there is new relevant evidence, which could not have been produced at the time of the hearing." But the process does not include a "hearing." This is confusing and suggests, incorrectly, that unless there is such new evidence that there is no basis for a successful appeal.
Meanwhile, the district does have a
UCP complaint form. However, the district's UCP form does not even mention bullying.
It provides a general checkbox for "discrimination" based on various categories (not including all that are required under the law, itself a problem) but does not specify that it covers discriminatory bullying. While this may be legal, when viewed in combination with the non-UCP bullying forms, the district is presenting a misleading picture to staff as well as to bullying victims and their families -- implying that the UCP is for discrimination that does not include bullying and that bullying, including discriminatory bullying, is to be handled using the new bullying forms.
PAUSD Does Not Need to Reinvent the Wheel. By contrast, the California Department of Education provides an appropriate model form which states clearly that the UCP is legally required in cases of discriminatory bullying, and cites the legal authority. There are a series of checkboxes on the first page of the form that list every protected classification and discriminatory basis for the harassment, and asks for details such as dates and times, witnesses, and other information.
Unfortunately, the non-UCP bullying forms have already been provided to the sites, and the district has already trained principals and other administrators on their use at meetings held on October 15 and 24. The forms evince a district commitment to site-based complaint resolution that is directly in conflict with the requirements of Seth's Law, the UCP, and the OCR resolution agreement. These incorrect forms will now have to be pulled back and staff will have to be appropriately trained on the use of the district-level UCP, further confusing matters.
The School Sites Still Do Not Use the UCP. At the December 3 BRPC meeting, district lawyer Dora Dome correctly noted that under the law, "any complaint alleging harassment, bullying, discrimination, intimidation based on a protected status must go though the UCP" regardless of whether the complaint is substantiated after investigation or not.
To return to our initial question: are Skelly and the board members correct that the district is already following the law despite the fact that it has not finished revising its policies? If so, then we should expect that all complaints that allege discriminatory harassment would at this time be handled under the UCP.
At first glance this seems unlikely. One function of written policies and procedures is to guide the conduct of staff in reacting to complaints. How are staff to know what the UCP entails or what the relevant timelines are for reporting or investigating if there are no correct district handbooks or policies to which they can refer?
The district's answer to this question is that staff have been trained in the correct, legally-mandated procedures. Indeed, there has been a great deal of training going on, most of it conducted by Dome for a fee. At the December 3 BPRC meeting, Kevin Skelly repeatedly referred to the district's investment in staff training in bullying. He contended that the "extensive training" already provided had left him with "no doubts about the ability of staff to deal with bullying."
What About This: A Recent Disability Bullying Complaint at Jordan. But a recent case at Jordan Middle School suggests otherwise. At the BPRC meeting, a parent came forward and stated that the family had made a complaint last month about disability-based bullying at Jordan, and had specifically requested investigation using the UCP. According to the parent, the complaint involved an incident in which a student who was well-known to have an emotional disability was teased to the point of extreme frustration and the disabled student lashed out physically at the student who was doing the teasing.
The parent stated that District Compliance officer Charles Young was informed about the incident and the complaint, and about the parent's desire for the complaint to be processed using the UCP. However, according to the parent, Jordan vice principal Grant Althouse had just informed the parent that the complaint was not investigated using the UCP. Instead, the site had taken three weeks to conclude that the incident was not disability-based. The decision given to the parent by the site did not contain most of the UCP required elements, such as conclusions of law, and rights of appeal to the CDE. Rather, the parent was instead informed that the site-level decision could be "appealed" using the UCP, even though the UCP is not an appeal process. The parent also provided documents that substantiated these allegations.
By the time the parent had received the decision, the school had already implemented its discipline and other corrective measures.
As Dome said, regardless of whether or not Jordan's conclusion that the incident was not disability-based bullying is correct, the complaint was legally required to be handled under the UCP. It wasn't.
This situation is worrisome for several reasons. First and most importantly, the district's site-level response was inconsistent with the UCP and therefore did not comply with state law. It was, however, consistent with the district's new bullying forms, which do not reference the UCP and invite an entirely site-level process. It was also consistent with the district's longstanding method for handling complaints, which is to use site-level and informal resolution and to ignore the UCP and state law recordkeeping and documentation requirements.
Second, it suggests that the training that has been provided has not successfully changed this pattern or alerted staff to the requirements of the law. Finally, it reinforces the difficulty of compliance with the law in the absence of duly adopted policies, procedures, notices and training materials on which to base that compliance.
Yes, Policies Do Matter. In conclusion, the district's new bullying forms and the evidence of the mishandled complaint of disability-based bullying from Jordan demonstrate that the district is not, as Skelly and the board members claimed, already following the law. Ms. Caswell is mistaken: changes are not already "in place," and the district is not "abiding by the law." Rather the evidence shows that the district is continuing to struggle with legal compliance.
Dr. Skelly acknowledges that it has taken "too long" to complete the drafting and adoption of clear, legally compliant policies. He has attributed the delay to OCR and CDE but this is only part of the story. The other part of the story is that the district has engaged two different law firms and four different attorneys to painstakingly negotiate with the federal government for special, custom-tailored policies rather than using the model policies and other UCP resources provided by CDE. The district has likewise paid outside counsel to create its own forms, which clearly do not comply with the law, rather than using the correct model form provided free of charge on the CDE website.
At minimum, the district should have quickly adopted interim procedures based on CDE or CSBA models that complied with the law while it negotiated with OCR. After all, it was legally obligated to adopt many of these rules years ago. Instead, the district has retained policies and procedures -- such as the lack of a disability discrimination complaint procedure, and a sexual harassment procedure that does not comply with either state or federal law -- that are unlawful.
The delay in bringing the district's procedures, policies, and rules into line with the law has not been, as Skelly and the board members claim, harmless. Rather, it has led to confusion among students, parents, and staff, more legal violations, and greater mistrust between the community and the schools over bullying.