News

New district policies and procedures: months in the making and still not fully baked

District continues to work with Office for Civil Rights to develop system that complies with law

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."

Return to "Out of the shadows" index of articles

Comments

Posted by Steven Nelson, a resident of Mountain View
on Oct 31, 2013 at 7:13 pm

Wow - this is such a good in depth article. It is a complex problem - state wide. Many districts do not have an easy to use process - or do not disclose their process to parents or the press when asked.

Uniform Complaint Procedure. This was meant to be Uniform and not complex. If it is non-uniform, it becomes inherently complex.
(this topic is still of interest - even though months have passed)


Posted by parent, a resident of Palo Alto High School
on Oct 31, 2013 at 7:25 pm

To meet the OCR request, we will end up with a policy that is incomprehensible to anyone but lawyers. Hmm.... Wouldn't it just be simpler to teach our kids to be nice to each other? And along those lines, teach the adults in this community to be nice to each other.


Posted by Paly parent, a resident of Palo Alto High School
on Nov 1, 2013 at 5:50 am

Actually, the OCR request was simply that the district affirm that it would use the state Uniform Complaint Procedure to deal with complaints in which unlawful discrimination is alleged. That is already the law, and the UCP (which is mandated by the California Department of Education) is pretty simple. It requires that complaints be handled according to a timetable and that there be clear rights of appeal.
PAUSD doesn't want to simply use the UCP, because it interferes with the district's 'site-based control' policy. Site-based control requires that each school get to make up its own policy, and that district administrators aren't responsibility for ensuring that rules are followed. Since that's incompatible with the law and the OCR settlement agreement, PAUSD hasn't been able to finalize its policy. Until the district decides to throw in the towel and abide by the law, that won't happen. That's why the new policy hasn't shown up in a school board meeting.
A more interesting question: why hasn't Board President Dana Tom or VP Barb Mitchell followed up with staff members in public about it? Could it be related to Tom and Mitchell's policy of resisting federal authority over civil rights, discussed in secret meetings of the school board this past summer?


Posted by Skelly's legacy, a resident of Another Palo Alto neighborhood
on Nov 1, 2013 at 7:03 am

Every school district has to follow the uniform complaint procedure. Skelly and Young repeatedly chose not to because of arrogance or stupidity. Either way, we will be paying for it as we are now for many years. This is their legacy.


Posted by Skellytons, a resident of Jordan Middle School
on Nov 1, 2013 at 8:56 am

Dr Skelly has ruined it for everyone. To ensure healing and moving forward, wouldn't it be better if he left PAUSD? [Portion removed.]


Posted by Hugh Bris, a resident of College Terrace
on Nov 1, 2013 at 1:30 pm

Thanks to Steven Nelson for bringing this issue back out of the shadows. When the board and the public discovered that the superintendent had signed a resolution agreement with the OCR with provisions to update board policy and district procedures last February there seemed to be a sense of urgency to get this done spurred by public sentiment and a deadline imposed by the OCR Resolution agreement. Staff and board comments at the February board meeting indicated that PAUSD would work to provide a model policy for the rest of the county. Instead eight months later we are out of compliance with federal and state laws in regards to harassment and a model of how not to operate as a school district.

This deficiency in policy and procedures leaves the district vulnerable to investigation of complaints and lawsuits. Of even greater concern, without clear procedures for parents and staff to follow when harassment arises, this deficiency potentially leaves children unprotected from harassment.

The board is responsible for setting the direction of the district, establishing effective structure through policy and other decisions and to ensure accountability to the public. I would like to see some accountability from the board on this issue.


Posted by New News, a resident of Community Center
on Nov 1, 2013 at 1:38 pm

This was written six months ago in June. Surely action has been taken by the board since then, but I have not heard what has occurred. Can the Weekly or someone give us an update. I am confident that Dr Skelly would not allow us to continue to be in violation of the law.


Posted by EB, a resident of Another Palo Alto neighborhood
on Nov 1, 2013 at 2:37 pm

No action has been taken on this issue. The district received a final marked up policy from OCR and then rather than have the board adopt it, it sent it to CDE and CSBA to ask what they thought about it. That went into a black hole so far as the public is concerned. Just to recap, the events leading to the first OCR letter of finding occurred in the 2010-11 school year. It is now the 2013-14 school year. Had the district entered into a Resolution Agreement with OCR swiftly when the complaint was filed in the spring of 2011, this would be long over. Instead, the district fought the complaint, lost, received a letter of finding, and now has fought and footdragged on complying with its own agreement.

The district will remain under OCR monitoring for the first complaint, until it fulfills the terms of its own Resolution Agreement. One of the terms of that agreement was to adopt an appropriate board policy barring disability harassment. Since PAUSD has not yet done that, all of the other complaints filed since that time -- 2 more alleging disability bullying -- will likely both result in problems for the district since the district still does not have an appropriate policy or training for staff and thus is out of compliance with the law and was out of compliance at the time of the events alleged in those complaints.

The situation regarding the Resolution Agreement has become unacceptable. It has been several years. Why isn't this resolved?


Posted by village fool, a resident of another community
on Nov 1, 2013 at 4:08 pm

@EB - you asked: "...It has been several years. Why isn't this resolved? "
One simple partial possible answer can be that the issues that brought the OCR to PAUSD "traditionally" did not affect those who could hire private lawyers. Another bit could be that some of the concerns brought to the OCR did not seem to be reasonable before given PAUSD reputation and the fact the only very few pointed to these issues. I am assuming that parents who hired private lawyers before did not experience some of the occurrences the OCR investigated. Also, fear of retaliation was not discussed until last year. That goes back to reputation, visibility of issues and culture. Generally, I think that the infrastructure that enabled these issues to begin with was not yet identified. I wrote some more here (my blog)- Web Link


Posted by Thanks to the Author, a resident of Palo Verde
on Nov 3, 2013 at 10:18 pm

I love this article, it kind of reminded us what has happened in this school district: an innocent and not violent child has suffer and her rights were violated by the principal of Terman, and the special education staff, which has resulted in detrimental damage for both the student and her family. Now the student got abused so much, that she has to live far away from her family. Now Principal Katherine Baker got a promotion as a result of her bad job, and the special education administrators get to put an a show at the last months meetings, and the school board members get to cheer for them. Which by the way I believe that it was a way to buy their silence when they get taken to court. Worst of all the person in charge of working on those policies and making our schools a welcoming place is that same Terman principal who violated the rights of the child. What a joke! Thanks to the person who wrote this article. I can tell that she cares about our student's rights. She should be one of our board members.


Posted by Reese Ponsible, a resident of Meadow Park
on Nov 4, 2013 at 8:32 am

Who is at the helm of PAUSD? Who is costing the district tons of money in legal fees and damage control? Who treats special ed kids and their patents with contempt?

Quietly dismiss this person and most of the problems will magically disappear.


Posted by Absolutaly Right Reese Ponsible, a resident of Midtown
on Nov 4, 2013 at 12:15 pm

To Reese Ponsible,
I do agree with your posting. I wish we could have a magic wand to make this person go away, and again things will be better in our district, but we are not so lucky, and the ones affected the most are our special ed. kids, who get less services because $ has to be spend in fees. Very well written comment without offending the Reese Ponsible person


Posted by Skelly's legacy, a resident of Another Palo Alto neighborhood
on Nov 5, 2013 at 6:37 am

If the superintendent left, could you trust the associate superintendent?


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