Uploaded: Wed, Jun 4, 2014, 9:44 am
In unanimous comments, school board challenges federal agency
Good faith efforts to collaborate have failed, board members say
Palo Alto school board members Tuesday signaled unanimous support for a resolution seeking redress against a federal civil rights agency that is investigating the school district, saying the agency has refused to correct errors in its investigation processes, which board leaders called "purposely confrontational and disruptive."
Board members stressed that they fully agree with the mission of the U.S. Department of Education's Office for Civil Rights whose director is said to be a Palo Alto High School graduate but, one by one, reiterated complaints that OCR lawyers had failed to address contested facts, burdened the district with massive information requests and failed to complete investigations in a timely fashion. All indicated support for a two-page resolution, explained in a June 3 memo from board President Barb Mitchell, Vice President Melissa Baten Caswell and Superintendent Kevin Skelly.
A final board vote on the resolution is set for June 17.
In testimony before the board Tuesday, three current or former Palo Alto district parents criticized the strategy of challenging the OCR.
"It shocks the conscience that we would consider aligning our community with Alabama and other places of ignominy that have resisted the vindication of our civil rights by the federal government," said Cathy Kirkman, a 1980 Paly graduate and parent of two Palo Alto students. (View her full statement here.)
"Palo Alto has always been an open and welcoming community, and it's just shameful that we would even consider this course of action."
Marielena Gaona Mendoza, whose family has sought redress from the district and OCR due to the ongoing bullying of a child, told board members, "You can be hiring lawyers, blaming OCR, blaming the parents, but if you don't take the issues seriously they grow bigger and bigger, and the more you get tangled in this big web."
Ken Dauber, a likely candidate for school board in this November's election, said the board's failure to publicly examine why its practices had drawn OCR scrutiny in the first place amounted to "a great missed opportunity on the part of the district."
"The reinvigoration of the OCR by the Obama administration under Russlyn Ali and now Catherine Lhamon Ms. Lhamon is a Paly graduate, in fact is one of the signal achievements of the Obama administration," Dauber said. "To see our school district setting itself against this work ... puts us on the wrong side of that issue and probably on the wrong side of history."
Board members insisted that sincere efforts on their part to work collaboratively with OCR had led nowhere and that, by going public with their complaints about OCR process they hoped to help other school districts and universities experiencing the same frustrations.
"We absolutely share the same goals as the OCR," board member Dana Tom said. "The issue we're talking about tonight is over OCR's practices and ensuring they are efficient, effective and fair. Like any organization, OCR has areas where it can and should improve."
Because of confidentiality restrictions, the district has been unable to correct "incomplete, misleading, and inaccurate" media accounts generated by OCR investigations, Tom said.
"We can't clear up the facts in public because we cannot comment about individual student matters. There's a great asymmetry in what our district may communicate versus what others may communicate."
Under questioning from board member Heidi Emberling, lawyer Chad Graff, who has represented the district in OCR matters, said the OCR had opened 277 investigations -- three of them in Palo Alto -- and signed 82 resolution agreements in California during the past year.
Graff said there's been little or no media coverage of the agency's activities in other districts.
"OCR is very much used to operating under the radar...," he said. "It has come under a lot more scrutiny because of the media attention (here)."
Typically, investigations are opened based on individual complaints, prior to any input from targeted districts, Graff said.
"If any information they have from a complainant alleges a violation of civil rights, their standard practice is to open an investigation," Graff said. "They won't inform the district during that period; they won't ask the district for any factual response ... Opening an investigation simply means somebody was able to allege a violation."
In conversation with OCR attorneys at one point over a late response from the agency, Graff said an OCR lawyer suggested that Graff could sue the agency.
"I said, 'That's not what we want to do. We'd just like a response so we can move on on these issues," Graff said.
School leaders fire back at feds
View Superintendent Kevin Skelly's full statement on the resolution here.
View board President Barb Mitchell's full statement on the resolution here.
View board member Dana Tom's comments on the resolution, as provided to the Weekly, here.
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Posted by Edmund Burke
a resident of Another Palo Alto neighborhood
on Jun 4, 2014 at 9:53 pm
A number of questions have been directed at me. I don't have time to get to all of them right now and I hope to post to my blog soon to address this subject. For right now I will say the following:
One reader asks: "My only concern is why the OCR has not responded to the requests that Palo Alto said they maid. Is there a reason for that?"
Concerned reader: Thank you for your question. Unfortunately the district has confused you by combining many issues that are unrelated. The district has made several requests of OCR. One is that they have made FOIA requests for all the documents underlying the Terman bullying case and the Jordan race discrimination case. OCR denied those requests. They have been appealed to the Office of Management of the Department of Education which has not yet responded to that appeal. That is not OCR. OCR responded to the FOIA request by denying it. The appeal is handled by another part of the Department of Education entirely. It is misleading to contend, as Chad and the district do, that it is OCR that is not responding to their FOIA appeal.
It is also wildly hypocritical, given that the district has failed to respond in a timely manner to any of the Palo Alto Weekly's Public Records Act requests and has delayed for months in many instances only to release documents that are entirely redacted. The district does not have clean hands on the subject of transparency.
In addition to its FOIA appeals, that do not concern OCR, the district has tried to have the Letter of Finding reversed, changed, amended, or rescinded. The district has falsely claimed, with no support, that OCR has violated its own procedure manual in that it has failed to reply to its appeal. But the OCR has no appeal for funding recipients like PAUSD. Complainants have an appeal that they can file under the Case Processing Manua; but districts do not. See:Web Link, section 306.
PAUSD has falsely claimed that OCR has failed in some way to respond to its "appeal." There is no such appeal, no process for such appeal, and no deadline for responding. PAUSD met with OCR, wrote a letter asking for reconsideration, and OCR's managers told PAUSD that they would take their letter under advisement. I would assume that they have done so. They have not violated any "rule."
Furthermore, this is a particularly interesting complaint. OCR issued its letter of finding in December 2013. PAUSD claims that OCR found some facts incorrectly. It contends that there are some inaccuracies in the letter (though, it must be noted, none that would appear to change any material fact or the outcome of the case. For example, whether or not Catherine Baker actually said that her staff is "very sophisticated" or not is not germane to whether or not the district responded promptly and equitably to disability harassment, even if it is relevant to her judgment).
If PAUSD believed that material facts had been improperly found, why did it wait until May 20, more than five months later, to inform OCR of those incorrect facts? Why didn't Kevin Skelly contact OCR as soon as he received the letter -- certainly within 30 days -- and ask for reconsideration or revision of the letter, presenting his corrected evidence, if such evidence exists?
There is no such thing as an "appeal" to be made within 5 months, even if such an appeal right existed which it does not. Appeals must be prompt and this is not prompt. The district delayed making any "appeal" to the OCR for five months, and then out of nowhere launched this barrage against it, demanding to have its complaints heard now.
This is disingenuous at best.
Likewise, the district's hysterical claims of "document tampering" are related to a closed case in which the district prevailed. There is nothing for the district to appeal in that matter even if an appeal was allowed, which it is not. The district's motive for wanting such a document, even were tampering proved, are highly questionable. OCR protects complainants from retaliation. Given that the district prevailed in that case, and given that it was OCR itself that noticed that there was a discrepency in that document, the district's motives are questionable and OCR may have decided that there was no reasonable basis other than retaliation for the district to request that document.
Another alert reader says:
"You have to admit there is something weird if they have received thousands of papers in documents, they have probably talked to a lot of people but they still can't find anything so they need to talk to students during finals? I don't think the board acted on their own. I think they got word from the dozens of people interviewed and those people told the board, do something. I know I would if I had some person fishing around for something that may not exist. Can the OCR just say what they are looking for? Only the students can say?"
There is nothing about the OCR investigation at Paly that in any way suggests that "they still can't find anything." OCR has already, I suspect, found plenty including handbooks with incorrect and inaccurate sexual harassment policies, a streaking epidemic, a Principal removed for sexual harassment who made some very improper verbalizations [portion removed], rape culture, a sexualized work and educational environment, and more. OCR also may have found that the district failed to cooperate with its document request [portion removed due to unverifiable assertion of fact.] This is far from nothing.
At Gunn matters are worse. Even the most rabid of defenders of Kevin Skelly have great difficulty defending what happened at Gunn. It was evidently part of a pattern or practice of failing to respond to sexual harassment and gender violence. Gunn also had incorrect handbooks, policies, and poor training. Charles Young the Title IX coordinator was entirely absent from the Gunn situation despite the fact that he supervises Baker. Enough said.
The idea that OCR isn't finding anything is silly.
Students will give OCR information about the most important facts: what is it like to be a student in this place? What was it like to be a 14 year old girl at Paly when there were naked 17 year old young man [portion removed] around campus. [Portion removed.] The students also could shed light on the feeling about rape culture.
As to the loss of staff time that the district complains of for these interviews -- the actual interviews with staff were under an hour each. However, Chad and Lenore and the other FFF lawyers also wanted time to meet individually with each staff member to do witness preparation and tell them what to say and how to say it. That was both expensive to the taxpayers for FFF time, but also a waste of staff time. Why did the district do "witness prep"? Don't we just want the staff to tell OCR the truth? Chad and Lenore do not represent the teachers. There was no reason for them to be present in the interviews and under the law and OCR's Case Processing Manual they had no right to be there. None. Yet there they were, protecting the district -- not the teachers.
Was that a reasonable outlay of parent money? Parents are paying for Chad and Lenore and Laurie and the FFF lawyers. OCR is there to protect our children [portion removed.] Is it right that we should pay for the district's lawyers to try to shape the interviews of our teachers? Shouldn't parents want the truth to come out without district lawyers? What is the interest of the parents in protecting PAUSD's district administration.
The interest of parents and students is that staff and students will be interviewed and that the truth will come out. Changes will be made. Students will be protected. Harassment will stop. Girls will not be beaten up on the way home in assaults that could have been prevented if proper actions are taken. [Portion removed.]
That is what parents should get. Not Chad, Lenore, and Laurie covering up for Catherine Baker, Charles Young, and Kevin Skelly.
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