This story is part of an in-depth package of stories on the subject of bullying in Palo Alto schools. For links to all the stories, follow this link.
Complicated board policies and procedures designed to protect student rights, create fair process and comply with ever-growing numbers of federal and state laws can be a burden to overworked school administrators, school officials point out.
In Palo Alto, individual schools have traditionally developed their own procedures for handling bullying and harassment complaints, with the district staff's blessing, in place of using board-enacted procedures.These site-based approaches involve largely unwritten practices, generally featuring case-by-case management and using professional judgment and discretion about the best way to investigate and resolve issues within a unique school culture (see "Out of the shadows").
The Board of Education itself has fallen behind in updating its policies and procedures to reflect new state laws on bullying and harassment. One of these laws, AB 9 (known as Seth's Law), became effective July 1, 2012, and expanded protections for students bullied on the basis of bias. Among other provisions, it required districts to update their Uniform Complaint Procedures to include a process for complaints of unlawful discrimination, harassment, intimidation and bullying based on actual or perceived characteristics of age, ancestry, color, ethnic group identification, gender expression, gender identity, gender, disability, nationality, race or ethnicity, religion, sex or sexual orientation, or on the basis of a person's association with a person or group with these actual or perceived characteristics, according to the state's Legislative Counsel's Digest.
According to a California Department of Education brochure (issued by its Office of Equal Opportunity), dated July 2012, California law requires the "Uniform Complaint Procedure to be followed for complaints of discrimination, harassment and bullying."
The Palo Alto school district has yet to update its Uniform Complaint Procedure policy as required by Seth's Law. The California Department of Education has tried to facilitate this process for districts by providing information about the new requirements along with a sample Uniform Complaint Procedure board policy and a notification to parents and students in its Sept. 4, 2012, letter from the department's general counsel to all superintendents in the state. "All (districts) are encouraged to utilize these sample documents to comply with the requirements of AB 9," the letter stated. It also added that the California Department of Education "shall monitor ... to ensure that each (district) is fulfilling UCP requirements in accordance with the Safe Place to Learn Act (aka Seth's Law)."
This legal mandate is reflected also in the Office for Civil Rights resolution agreement with Palo Alto, which requires the district to provide an explanation to its administrators "that the Uniform Complaint Procedure is the district's procedure for resolving disability discrimination complaints."
The Uniform Complaint Procedure is a standardized, state-mandated district-level complaint procedure for certain types of complaints, including those concerning discrimination, harassment, intimidation and bullying, according to the California Department of Education's website. Its purpose is to provide a structure for equitable resolutions when the complainant or district chooses that route, typically when situations cannot be resolved informally at the school level. The complaints must be written, signed and filed with the district within six months of the alleged violations. The law allows districts to adopt their own version of the Uniform Complaint Procedure, as long as it is consistent with certain specified criteria, found in the California Code of Regulations (Title 5, section 4600 et seq), including a timeline of 60 days to complete the process. It also allows for mediated resolutions whenever all parties agree and the results are consistent with state and federal law.
The district's own existing Uniform Complaint Procedure (Board Policy 1312.3) currently requires the district to investigate any complaints alleging "unlawful discrimination and shall seek to resolve these complaints in accordance with the district's Uniform Complaint Procedure."
The Santa Clara County Board of Education recently proposed updates to its Uniform Complaint Procedure to bring it into conformance with Seth's Law, as stated in a May 1 memo to the board.
The California Department of Education's new sample Uniform Complaint Procedure notification to parents and students states that the school district "has the primary responsibility to insure compliance with applicable state and federal laws and regulations and has established procedures to address allegations of unlawful discrimination, harassment, intimidation and bullying." The department's sample policy states that the district must "conduct and complete an investigation of the complaint in accordance with UCP policies and procedures and prepare a written decision, also known as a final report" within 60 days from the date of receipt of the complaint. The decision should contain findings of fact based on evidence, conclusions of law, the disposition of the complaint, the rationale for such disposition, corrective actions, if any are warranted, and notice of right to appeal and the procedures for that."
The Palo Alto school district has spent the past school year working to develop new bullying policies and procedures but so far has not hit the mark sufficient to gain Office for Civil Rights or public approval. Student Services Coordinator Brenda Carrillo began the effort last August with several model policies (Santa Clara County, the California School Board Association and Florida's Broward County), input from each school, a working group of stakeholders, the district leadership and its lawyers. Carrillo's stated goals were to take a comprehensive approach, create a common definition of bullying and provide clear and consistent districtwide procedures for the reporting, investigating, resolving and documenting of bullying and harassment incidents. In a February board presentation, Carrillo told the board that such a policy would place the district "at the forefront" and as "a model" for other districts.
Meanwhile the Office for Civil Rights did not approve the draft policies and procedures the district submitted in mid-February, for reasons not publicly known (the federal agency does not permit press contact and neither do the district's lawyers). In any case, the Office for Civil Rights' failure to approve the language offered by the district has resulted in numerous delays in bringing these new policies before the general public for review and approval. The new policies were originally scheduled to come to the board in February and then each month since, but they still have not made an appearance.
The Office for Civil Rights is now consulting with the California Department of Education about some of the questions raised, per Superintendent Kevin Skelly's most recent board update.
In March, the district switched the project lead to an outside consultant and lawyer, Dora Dome (who also was in charge of a March training for administrators). On March 26, the district arranged for Dome to walk district staff and selected parent groups (including PASS (Parent Advocates for Student Success ) and the Community Advisory Committee for Special Education) through her current draft (56 pages) of new bullying and harassment policies.
Several community members who reviewed the Dome draft were struck by its complexity, its inaccessibility to the average reader, the number of times "shall" had turned to "may," and the new two-tiered approach to classifying complaints (based on whether "protected" or "unprotected" status was involved). Using this two-tiered system, the district promoted continued school-level complaint procedures, separate from the Uniform Complaint Procedure, with "fast-track" incentives (15 days at the school-level versus 60 days with the district's Uniform Complaint Procedure) so that "protected-status" complainants would be motivated to opt for the site-based process. In designing systems to reduce or avoid the use of the Uniform Complaint Procedure, some say the district is reacting to fears of a potential "bottleneck" of complaints at the district office.
To deal with the complexity, some parents have suggested that the district provide a flow chart to illustrate each step of the process from the time a report of bullying or harassment has been made. Others have suggested that the district look to other districts' policies as models for how to achieve more clarity and user-friendliness, including Newton, Mass.; San Ramon; Los Angeles; Berkeley; and Seattle, Wash.
Despite legal requirements, the Uniform Complaint Procedure is rarely used in Palo Alto. The district has processed a total of three Uniform Complaint Procedure complaints in almost seven years (since 2006), according to its state-required complaint log provided to the Weekly
The district does little, if anything, to direct parents towards the Uniform Complaint Procedure when parents and school staff disagree over bullying or harassment situations, according to parents.
In reviewing one of the February drafts of the district's proposed bullying prevention policies and procedures, SEAN (Student Equity Action Network) General Counsel and parent Cathy Kirkman wrote the board to urge compliance with the Uniform Complaint Procedure law in its new policies.
"We ask that the district be mindful that by law discrimination should not be conflated with bullying per se, as reflected in your proposed Bullying Policy BP 5131.2, as it may occur in different guises. Accordingly, we write to request that the district implement clear, accessible, plain English ... complaint procedures that are compliant in all respects with the Uniform Complaint Procedures, as you have agreed to use pursuant to the resolution agreement. ... We request that the district make these forms conspicuously available at the district and site level (including their websites), and through the parent handbooks, and have the complaint form include the district-office contact responsible for receiving these complaints as well as a descriptive guide to the complaint process."
The Office for Civil Rights' April "data request" in the Duveneck Elementary School disability harassment complaint asked for copies of district policies and procedures related to discrimination complaints and a description of steps that school administrators are supposed to follow if they receive notice that an incident may have occurred.
The district's response to this request was to refer to the proposed new policies and procedures, under Office for Civil Rights review; and the fact that the district "utilizes the UCP process to address complaints of discrimination based on protected classes." The district did not mention the other existing board policies and procedures bearing on these issues -- or the fact that it barely uses the Uniform Complaint Procedure.
Why not refer to the other existing board policies and procedures? Even though they are the community's currently applicable board policies and procedures -- at least until new ones are adopted -- they are commonly treated as if they don't exist. Some community members have argued that existing policies provide superior structure and protections (assuming updates to reflect new laws) than the policies and procedures being proposed.
Until new policies and procedures are adopted, the key existing board policies and regulations that pertain to bullying and harassment are:
Board Policy 5131 (labeled "Conduct") describes prohibited student misconduct (including bullying, hazing, harassment, ridicule, profane or abusive language, etc.) and states that "complaints of bullying or harassment shall be investigated in accordance with site-level grievance procedures specified in AR 5145.7 -- (labeled) Sexual Harassment." While this policy is listed as "under review" on the district website, the policy itself indicates "Policy adopted: 1/12/10 Under Board/Staff Review" and the board meeting minutes seem to reflect that it was adopted.
Board Policy 5145.3 (labeled "Nondiscrimination/Harassment") prohibits harassment, intimidation and discrimination based on a list of characteristics (sex, religion, color, disability, sexual orientation, etc.). It requires employees to report any incidents of harassment immediately to a "Coordinator for Nondiscrimination" designated as three district assistant superintendents (Human Resources, Educational Services, and Administrative Services).
The policy states: "Upon receiving a complaint of discrimination or harassment, the coordinator shall immediately investigate the complaint in accordance with site-level grievance procedures specified in AR 5145.7 -- (labeled) Sexual Harassment." It also requires the coordinator, if he/she finds harassment has occurred, "to take prompt, appropriate action to end the harassment and address its effects on the victim." He/she "shall also advise the victim of any other remedies that may be available" and file a report with the superintendent or designee.
Board Policy 5145.7 (labeled "Sexual Harassment") requires instruction to all students on this topic; details employees' immediate obligations to report any observation or complaint about an incident of sexual harassment; requires the principal or designee to "immediately investigate the complaint in accordance with administrative regulation" ( AR 5145.7). "Where the principal or designee finds that sexual harassment occurred, he/she shall take prompt, appropriate action to end the harassment and address its effects on the victim." The policy also requires that the victim be advised of any other remedies and that a report shall be filed with the superintendent or designee. Also, the superintendent or designee "shall maintain a record of all reported cases of sexual harassment to enable the district to monitor, address and prevent repetitive harassing behavior in its schools."
Administrative Regulation ("AR") 5145.7 (labeled "Sexual Harassment") describes in detail the kind of conduct that constitutes "sexual harassment" and includes sexual slurs, derogatory comments, graphic comments about an individual's body, spreading sexual rumors, sexually degrading descriptions, unwelcome sexual flirtations, threats, leering, and touching in a sexual way ("sexual violence" is not explicitly mentioned).
AR 5145.7 also includes the "site-level grievance procedure" to be utilized for all complaints under the above Conduct, Nondiscrimination/Harassment, and Sexual Harassment policies.
AR 5145.7 (shared among the three policies described above) includes requirements for prompt investigation and interviews with all witnesses to the incident(s) or anyone with related information. The student complaining "shall have an opportunity to describe the incident, present witnesses and other evidence." With the agreement of the students involved, the complaint may be resolved informally "with help of a counselor, teacher, administrator or trained mediator." The policy lists 12 factors the administrator may take into account in reaching a decision about the complaint, all relating to credibility of the evidence, the impact and severity of the harassment.
AR 5145.7 requires that the administrator "shall write a report of his/her findings, decision, and reasons for the decision and shall present this report" to the students involved, and also provide "a written report of the complaint and the investigation" to the superintendent or designee, describing actions taken to end the harassment, address the effects of the harassment, and prevent retaliation or further harassment. Within two weeks the administrator shall determine whether any further harassment has occurred and keep a record of this follow-up information.
Board Policy 1312.3 and its companion AR 1312.3 provide for the district's current Uniform Complaint Procedure process for investigation and resolution of complaints alleging unlawful discrimination. Among the many listed bases for discrimination, "disability" is not included under this policy, though it should be. The policy encourages early, informal resolution at the school whenever possible and also provides for mediation. But for complaints that proceed more formally, Associate Superintendent Charles Young is designed as the "compliance officer" for the district, who is "to receive and investigate complaints and to ensure district compliance with the law."
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