Uploaded: Tue, Apr 16, 2013, 8:43 am
New civil-rights complaints filed against Palo Alto district
Feds launch inquiries into parent complaints on disability-based harassment and racial discrimination
The Palo Alto Unified School District received notification last week that federal investigators are probing two new cases brought to them by district parents last month, according to the district and confirmed by the federal Department of Education's Office for Civil Rights in Washington, D.C.
One of the cases alleges discrimination based on disability and the other alleges discrimination based on race.
Superintendent Kevin Skelly said the district received letters from the Office for Civil Rights (OCR) last Wednesday and he immediately informed school board members.
The letters do not contain details of either complaint, but Skelly said the district is familiar with the disability-based harassment case and has been working with the family for several months to resolve it. Citing privacy concerns, he would not disclose any details, including the age of the student or the name of the school.
But in an email to parents Monday evening, Duveneck Elementary School Principal Chris Grierson disclosed "we recently received a letter from the Office for Civil Rights (OCR) expressing concerns about bullying behavior.
"The OCR was contacted by a parent and the district received the letter last week."
Grierson said he is "working closely with the district administration to cooperate fully with the OCR" and intends to "offer a thorough and thoughtful examination of this matter."
Urging parents not to be alarmed by OCR's interest, Grierson said, "As I see it, the OCR is addressing a national rally cry on the issue of bullying. The district and our school are working cooperatively with OCR and I am confident that we will be a model for collaborative and positive student-focused discussions and solutions to an issue of critical importance in our children's lives."
In a statement Friday, April 12, Skelly said: "The District is committed to providing a safe and nurturing learning environment for all students.
"District and site staff have been working diligently with the family for some time on issues related to their sense of safety for their student. Staff will continue to do so. On the topic of student safety, we never cross a finish line, our work is constant, and we are dedicated to continuous improvement."
The new complaints come as the district is in the process of carrying out terms of a "resolution agreement" in a bullying case dating back to 2011 involving a special-education middle school student.
In that case, the Office for Civil Rights conducted an extensive investigation, including on-site interviews of more than 30 students, teachers and administrators. It issued findings that the district had violated federal anti-discrimination laws by failing to respond properly and stop the bullying behavior, allowing a hostile environment that interfered with the student's rights to an education.
Skelly entered into the resolution agreement on behalf of the district last December that admitted no violations of law but pledged to undertake trainings, adopt new policies and procedures, modify handbooks and communicate with students, parents and staff as specified in detail by the Office for Civil Rights. He failed to inform the school board or public about the findings and agreement until the Weekly published details about the case provided by the family.
Some of the required trainings have already taken place, and the district is awaiting feedback from the Office for Civil Rights on new draft policies on bullying, discrimination and harassment. The student received a placement in a special school five days after the story was published.
As long as complaints are filed in a timely manner and pertain to federal civil rights laws enforced by the Office for Civil Rights, an investigation will be conducted to determine if any violations of law occurred. According to the OCR's letter to the district, "opening allegations for investigation in no way implies that OCR has made a determination with regard to their merits."
Under Office for Civil Rights policies, if an investigation concludes the district was out of compliance with civil rights laws, the district has an opportunity to resolve the matter by negotiating a resolution agreement prior to formal findings being issued by the government.
In the new disability harassment case, the Office for Civil Rights has requested the district turn over a large number of documents, including notes from all conversations and meetings and emails with the family, all complaints made by other families at the school, student and staff rosters, attendance records, transcripts and a description of the process school administrators are supposed to use to investigate disability harassment complaints. The request asks the district to reply by April 25.
In the other case, the Office for Civil Rights' notification letter to the district indicates a data request would be forthcoming.
Posted by Edmund Burke,
a resident of Another Palo Alto neighborhood
on Apr 16, 2013 at 6:04 pm
Floyd: You ask a number of important questions. I will answer them one at a time.
The first OCR case mentioned in the story was the case of a disabled middle school girl who was severely bullied, including physically, socially, verbally and emotionally on the basis of her disability. She was taunted, teased, excluded, hazed, punched, kicked, and pushed. She was physically injured in one bullying episode so severe that that the police were called and a doctor visit was required. She was called "retarded" and stupid and other similar names. The family complained repeatedly for years, which only got them labeled and seen as troublemakers. They complained up the chain in the district and were repeatedly shooed back to the school to "work things out" and "trust" the school. The school board president Dana Tom, the Superintendent, and the District Compliance Officer Charles Young all failed to treat this as a discrimination complaint even though the family at one point warned the district that it was considering going to OCR prior to filing the complaint because they felt that they had no choice.
Once the complaint was filed, the district did not appear to take it very seriously. It appears that the district was overconfident that there was nothing to the claim. The Assistant Principal was not truthful with investigators. The Principal told the investigators that her staff did not need any disability discrimination training because they were "very sophisticated," and not much information was given to the board. The district did not engage in any form of early resolution, apparently due to the fact that it was confident that there would be a finding against the family. When the finding came, district leadership did not inform the board or the public and tried its best to get through compliance with the resolution agreement without having to admit what had happened.
Charles Young's email informing the board of the finding was quite revealing because he said that word had come of the finding and that the staff was sure to be disappointed. He expressed no remorse for the pain endured by the child or the family, nor any need to make things right with them or to reform the district's policies. A reasonable question can and should be raised about whether Charles Young has performed competently as the district Compliance Officer.
There were 2 cases before -- with these two the district now stands at 4 complaints in the past year. The second case involved disability discrimination as well, but in the provision of a 504 plan and in the procedures for considering 504 plans rather than in the disability harassment context.
Both cases are tied together by the failure to have proper complaint procedures. Both kinds of discrimination (hostile environment and denial of FAPE) are supposed to be handled under the Uniform Complaint Procedure, mandated by California law. Discrimination complaints, when they are in writing, cannot be handled merely at the site level and informally. They must be placed into a formal complaint procedure that has procedural protections for the victim and family. This procedure is not optional. The district treats it as optional at best.
In answer to your third question: The district waited for a judgment (called a finding of noncompliance) in the first case but not the second. As I said above, it appears that the district was overconfident that no one would believe the family of the bullied child. In PAUSD the pattern is to isolate and stigmatize those who complain. The Duveneck principal's email, which was obviously written by the district's lawyer, is an effort to do this to the Duveneck family, and not a very subtle one.
First, by revealing the school the family feels it will be revealed at least within the school community, further cutting the family off from support and friendship. Then, by revealing the type of discrimination (bullying) more information is revealed to threaten the complainat's sense of privacy and security. Then, by claiming that the school is doing all it can and that the OCR is motivated by something other than a fair and impartial investigation, the principal implies that the family is not to be believed. It is hard to understand what he plans to cover in his "coffee" about this topic. But the entire effect is to isolate, stigmatize, and delegtimate the family's complaint.
Your fourth question is whether this is fixed. No, the systemic issues identified by OCR have not been "fixed" . The district's effort to hold on to its "site based" policy has led it to construct a new series of conflicting and incomrehensible policies and regulations that do not satisfy the law. The district has committed itself to use the UCP, which is the law. The district is still not doing this and OCR will most likely not approve the district's effort to handle written complaints of discrimination at the site level on an informal basis. Moreover, the policies are an incoherent mess that even a lawyer cannot read or understand. The district is currently still engaged in digging the hole. It appears that it will be some time before they start to try to fill it in.
In part, the fact that the problems are not yet "fixed" is evidenced by the fact that complaints continue to roll in. If the district was behaving like a rational actor it would have ensured a district level review of every bullying situation in the hopper when the first claim came to light and would have worked night and day to ensure that none of those complaints was handled according to any procedure other than the UCP, and that each was resolved to the satisfaction of the family. Instead, they just carried on as normal with no UCP, no oversight, and no resolutions thus allowing more claims to be filed. And because the practices were not reformed, each of these claims is likely to be valid for the same reasons that the other claim was valid.
Your final question about Dr. Skelly is that the board praised his apology for the first and second cases and for not telling them about those cases. Many people might ask whether Dr. Skelly should have been dismissed for breach of his contract for not informing the board about the finding of noncompliance and the Resolution Agreement. Many people might ask whether that shows that he committed malfeasance and is in dereliction of his duty. The board did not think so.
Now there are more claims. As noted above, a very reasonable question is why when the first claims were lost and the district was informed that it had a serious systemic problem by the federal government it did not launch a full investigation into what happened, who made the errors, what the errors were, what cases were in the system but were not being handled correctly, and how to get those cases on track before they matured into more claims. Ken Dauber, Andrea Wolf, Patricia Davis, Kathy Sharp, Wynn Hausser, Amy Balsom, and many other citizens and parents called for just such and investigation at the time.
Had they been listened to, these complaints would likely not have been filed. Now matters are worse.
Now is the time for that investigation. Just from a litigation avoidance perspective the district is in a needless mess and headed for worse. If district's counsel is approving this course of events (and leaked documents suggests that they are) then a reasonable question has been raised about whether the district is being well-served by its current lawyer, Laurie Reynolds of Friedman, Fagan, and Fulfrost.
Posted by Le plus ca change,
a resident of Another Palo Alto neighborhood
on Apr 16, 2013 at 7:43 pm
The OCR isn't involved because of bullying, they're involved because the district isn't following civil rights laws.
The OCR is involved because the district has certain procedures for protecting vulnerable children, such as those who require special ed or disability protections to receive a free and appropriate public education like everyone else. Every district has those procedures - district personnel write those procedures - to comply with core educational/civil rights laws. The OCR is involved with this district because unlike most of the other districts in the country, this one is not following those procedures and hence those laws, in fact, has so blatantly disobeyed them as to pretend to parents whose children need those protections (and apparently to the government when they investigate) that they don't even know those processes and laws exist.
It goes beyond just not following their own procedures and acting like they don't exist when parents ask. Despite the earnest-sounding rhetoric, the new trainings, and modified handbooks, one special ed parent put it well in an earlier thread on this issue when she said, when you need special ed services, they treat you like the enemy. It's true, and it hasn't changed. And that gets them into a world of hurt, which will only get worse, because they haven't reformed, they've simply worked harder at making it appear to the government that they have.
I never would have believed it if my family hadn't experienced it. Underlying intent is really important here. The result of treating parents like the enemy leads to anything but "collaborative and positive student-focused discussions and solutions." District personnel involved in "protecting" special ed and disability rights would need a monumental shift in attitude to even approach "collaborative", from Charles Young, Linda Lenoir, Holly Wade, Brenda Carrillo, on down.
It has been my family's experience that district personnel, in being so adversarial, end up going off into their own little world, where they make up their own narrative about the situation, subject the process and school personnel to their biases, and pretty much ignore the facts and what families are actually going through - until the OCR came along, they pretty much got away with it. In fact, despite the OCR, they seem to still be trying to get away with it.
Think back to that case with the boy who had the cystic fibrosis gene. That family didn't complain to OCR, but they could have. They ended up taking the case to court -- and the judge sided with the family. What we don't hear is that the boy lost a lot of school because the district dug its heals in - treating the parents like the enemy - and went out and got experts who only heard the district's side of the story and thus rendered opinions reinforcing the district's biases. Instead of working with the family, they dismissed what the family and their doctor said, dug into their own insular world -- poisonous to families' relationship with the school and district -- and reinforced their biases, to the detriment of the child. Could there have been legitimate disagreements? Sure. But district personnel begin by taking an adversarial tack and don't seem to have any mechanism by which they hear and respect any side but their own, so they don't know how to work through those disagreements, they only try to "win", even to the point of being underhanded, even to the point of denying district children key civil rights protections.
The cystic fibrosis gene case ended up costing the district legal expenses that could have been avoided. More importantly, it caused a family to have to battle and feel alienated from their school community when it wasn't necessary. It wouldn't have happened if there had been anyone in the district who had the kind of respect for families that could lead to true collaboration. If district personnel had simply sincerely followed the letter AND spirit of the law. Many families don't have the money to hire a lawyer to enforce a child's rights - for every case you hear about, in how many more have children's right simply been violated?
I find it very interesting that there are more complaints, but not surprised. We are on the verge of filing a complaint ourselves, in fact have been thinking about it for months and have been preparing one but hoping district personnel would change (either in behavior or actual personnel). In our case, the attempts to make it appear as if they are following process while continuing to maintain the old antagonisms and prior mistakes and biases - the attempts to give the appearance of due process without actually adhering to it - have amounted to denying our child's rights. It's been a painful, hurtful year.
Posted by Edmund Burke,
a resident of Another Palo Alto neighborhood
on Apr 17, 2013 at 8:24 pm
This case raises two issues. The first is the question of racial profiling and there the key issue is whether the school officials had what is known as "reasonable suspicion" that the child in question may have contraband or evidence of wrongdoing. Although in the school context the requirements of probable cause are relaxed, the Supreme Court recently restated that some individualized information of wrongdoing is required. There must be some "reliable knowledge" that there is "a moderate chance of finding evidence of wrongdoing."
That knowledge has to be based on specific facts and information. It cannot be based on racial stereotyping because that is not "reliable knowledge" that would lead to any chance of finding anything. If the parents' allegations to OCR in this case are that the substitute selected the student for a search for contraband based on nothing more than his or her race, then that is an allegation that, if proved true, would be unlawful. As in other contexts of racial profiling, there must be some specific, articulable, individualized basis for suspicion. There must be information such as "Johnny saw Susie with the cigarette." It cannot merely be "someone had a cigarette and I figured it was probably the kids from East Palo Alto."
This is likely the sort of racial bias claim that OCR would investigate because if true it would constitute racial discrimination in an educational program.
Beyond the claim of racial bias in the selection of the search target there are questions of civil rights that are implicated by the search itself. The Fourth Amendment right to be free of unreasonable searches and seizures obtains in the school context, albeit in a relaxed form. What is "unreasonable" in a school context may differ from that of a non-school context. Nevertheless, students do have some rights to personal privacy and freedom from intrusive searches. The standard, as recently articulated by the Court is that "a school search "will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the
nature of the infraction." See Safford v. Redding (2009).
In Safford, the principal of a middle school had specific information that a student may have had some ibuprofen tablets, which were prohibited. In the course of searching a 13 year old female student for the tablets, the principal conducted a search of the student's backpack and outer clothing, found nothing, and then sent the student to the nurse's office where she removed her outer clothing and had to shake out her bra and underwear to show that there was no ibuprofen concealed in her clothing. This search, the Court held, violated the Fourth Amendment because it was overly intrusive in light of the nature of the infraction.
The court held that this constitued a "strip search" even though the child did not remove her undergarments, holding that this type of search of a 13 year old girl was so intrusive that the mere possibility of finding some ibuprofen tablets was simply not justified. This has been interpreted by most districts (as well it should be) as a straightforward ban on all searches beyond outer clothing. LAUnified, for example, has promulgated rules that are typical in this regard and permit searches on individualized suspicion only of pockets, purses, backpacks, and jackets. All searches that involve "removing or rearrange a student's clothing in order to permit a visual inspection of the student's underclothing, breasts, buttocks, or genitalia" are banned.
In sum, while the Constitution provides leeway to schools in order to preserve school safety, that leeway is not infinite. It is bounded by the protections in the Constitution. One of those protections is that of some quantum of reasonable, individualized suspicion that is based on some articulable facts rather than upon racial bias, stereotyping, or prejudice. The other protection is that even if a search is based on that kind of individual fact, the search itself must be conducted in a reasonable manner that is tied to the type of harm and calibrated to the age and sex of the child. Searches that involve the removal of outer clothing are always dubious and should be banned by policy where the search is not for weapons or dangerous instrumentalities.
Does PAUSD have appropriate search policies? Sort of. Web Link
The policy correctly requires individualized suspicion to conduct any search. However it does not give staff much guidance as to what may be searched once that individualized suspicion is present. "The types of student property that may be searched by school officials include, but are not limited to, lockers, desks, purses, backpacks, student vehicles parked on district property, cellular phones, or other electronic communication devices."
The policy does not state that searches of persons are limited to outer clothing and does not state, as does the LAUSD policy that removing or rearranging outer clothing is prohibited. Thus, the current PAUSD policy prohibits strip search (but does not define it in light of the 2009 Supreme Court case that includes removal of outer clothing as a strip search).
We will not know the facts of the case until the investigation is concluded, if then.
However, it takes little imagination to believe that some PAUSD teachers may act on the basis of stereotypes. The State of California found as much in its disproportionality finding. Ginny Davis and Debra Lindo stated to the board that PAUSD teachers have assigned minority children to special education based on no more than stereotypes and low expectations. These kinds of implicit biases do influence judgments such as those about who may have taken something or committed some infraction.
I hope this helps you "Racial Profiling."
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