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on Jul 19, 2013
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A nice opinion piece. If you read it without any in-school knowledge, you'd think all students of disability suffered in this district. Is that the case and was that the intent?
wondering, that's an interesting reaction. I don't see that implication in the piece at all. Your reaction seems quite defensive, but it's hard to tell without knowing a little more. Are you interested in sharing something of your background, experience, context? Perhaps we can help understand why you are seeing this piece in this way.
Concerned, thanks for your consideration. I just found it unusual for an opinion piece by the executive director of Abilities United in Palo Alto doesn't mention any support that IS happening in the schools.
wondering, I can only hazard a guess but maybe Ms. Steele wants to focus attention on how to improve the situation facing disabled children in the schools. This paragraph in her article seems most related:
"Organizations that have successfully implemented these laws have done so because they have had strong and decisive leadership and a willingness to allocate resources to ensure the spirit of the law is upheld. More importantly, they have created an organizational culture where each person knows what to do if they witness, hear about, or are the recipient of any violation of these laws. Within organizations that have nurtured this culture of inclusion and diversity, incidents of discrimination, harassment and bullying jar their core values and are quickly reported, investigated and stopped."
It is pretty clear that this is not a description of the schools currently, at least across the district. Just taking the case of the disabled girl who was bullied, no one seemed to know how to respond and didn't seem to think it was their responsibility anyway.
I think it is always good to give praise but sometimes it is best to be clear about where there are gaps. That's how we improve.
Hope that helps.
Concerned, I can see the focus of the article but to address gaps you need to see both sides. Without knowing what is available you are starting again. What is available today in our schools that students with disabilities can avail themselves?
I think she is talking about a leadership gap not a program gap.
Hope that helps!
Not that clear. She states the programs aren't sufficient as implemented without detailing them. No mention of a leadership gap.
"Organizations that have successfully implemented these laws have done so because they have had strong and decisive leadership and a willingness to allocate resources to ensure the spirit of the law is upheld. More importantly, they have created an organizational culture where each person knows what to do if they witness, hear about, or are the recipient of any violation of these laws."
It's ok that you missed it. It is hard to read with blinders on.
reading today's Post I learned that evidently at some point in the past several months, unknown to the public, the school board and Dr. Skelly agreed in secret that they would begin a series of new policies and practices intended to thwart the federal Department of Education investigations of discrimination in PAUSD schools. Board President Dana Tom, VP Barbara Mitchell and Camille Townsend were all quoted about how they refused to allow OCR investigators to interview Duveneck school students, and that they dispute the adequacy of the consent form used by OCR, and that they want district lawyers to be present in the interviews of students, and that they want videotaping of those interviews. All these conditions and efforts to resist the investigation resulted (as planned) in bolixing up the investigation of the disability harassment allegations at that school.
Beyond a doubt this is the reason that OCR is focusing on PAUSD and has approved a Compliance Review. When an organization acts guilty and as if it is trying to hide information, that attracts attention. Anyone can smell a rat in conduct like that.
The entire time that the board has been assuring the public that it was fully cooperating with OCR, it has been trying to interfere with the investigations, intimidate the witnesses by insisting on videotaping them so that teachers and principals can watch the interviews later, and actually (I cannot believe I am writing this) stood in the schoolhouse door to prevent federal civil rights officers from entering to protect the rights of our disabled students.
What are we even coming to?
This is an arrogant, reckless, and needlessly agressive strategy. It is endangering our students, as well as our schools' financing and reputation. How long will it be before Sacramento decides that Palo Alto is so arrogant and profligate that it will make a great example on which to base the end of basic aid.
Frankly that can't come soon enough. If the public sees that the confrontational tactics of those running the district have costs perhaps we can move on to new leadership.
VERY WELL SAID!! I totally agree with you and I wish your piece would be published for all to see. Please consider sending it to the "letters" in the local rags. "Perfect Palo Alto" is not so perfect after all. When are we going to see the hand writing on the wall and dismiss Skelly and elect school board members who are not in to just protecting the "status quo"?
Clearly, the establishment here does not have the best interests of ALL of our students in mind it is plain to see.
Sarge would be proud of you for calling a spade a spade!
@S. Shriver - I second, Thank you. I wrote here (Web Link) more than a month ago - "..When there is fear of retaliation and lack of transparency everything is possible."
It was very clear to me that the well being of all students was not top priority.
If I were a parent at Duveneck, I would absolutely want someone besides the OCR officials with my child while they were being interviewed. Knowing that questions can easily be worded to get the desired response, particularly with children, I would want someone neutral in the room. I think videotaping the interviews and having a lawyer there is perfectly reasonable.
palo alto parent -- OCR does not investigate children. It investigates school districts to ensure compliance with federal mandates. Lots of people talk to your children without an adult present. At the extreme end, even if the police are investigating a crime, they can talk to your child without you present so long as your child is not a suspect. In an analogous context, if there is suspected child abuse, DCP can talk to your child (indeed will insist on talking to your child) without you or your lawyer present to ensure that your child is being adequately protected. There is no legal requirement that a parent be present to talk to other adults, even the police, as long as the child is not implicated or suspected of a crime.
What is really going on here is that the district wants its lawyers and staff to be able to be present because they are trying to interfere with a federal investigation.
OCR's rules provide that parental consent is required. There is a consent form, and parents who don't want to consent can opt out of that interview.
This district is corrupt and its response is corrupt.
palo alto parent wrote: "I would want someone neutral in the room. I think videotaping the interviews and having a lawyer there is perfectly reasonable."
So you think that the district's lawyer is "neutral"?
And you think that if a man is suspected of punching you in the face, and there are five witnesses, that the man's lawyer has a right to be present while the witnesses are interviewed?
Welcome to Palo Alto. Please discard your moral compass now. You won't be needing it.
S. Shriver - I understand the purpose of the OCR and what they are investigating. I also understand that the OCR is not investigating children, but they do interview them. In the case of the disabled middle school child, they interviewed many of her fellow students and these were middle school kids. The kids at Duveneck are little kids - elementary school age. Would really feel comfortable allowing a stranger with a specific purpose to take your 7 year old out of class and interview them without you or another neutral adult with them? I'm thinking of the students being interviewed and how they might feel.
The District is trying to protect itself and should absolutely be more transparent and have a consistent bullying policy and program enforced and taught at all the schools, this is a clear instance of when "site based management" has failed the students. But I don't think having a lawyer present or having the interviews videotaped for review by the District would be inappropriate.
Yes it would absolutely be inappropriate to have the district's lawyer present. Indeed, it would be very inappropriate. Having teachers there when you are asking about teacher conduct would be intimidating. Having video that can be reviewed later would make everyone fearful and self-conscious. Videotaping would be wholly inappropriate and intimidating. These are tactics being used to protect and cover the district's butt. They have NOTHING to do with protecting our children, which is what the district failed to do in the first place.
If a parent wants to decline the interview they can. If a parent wants to be present I suppose they could do that too. What about eye exams, hearing tests, teachers, scout leaders, etc? What about any time there is a fight or disturbance and the kids are sent to the counselor? Do you want to be present then too?
These investigators are present to protect the kids. The only evidence we have so far is that the schools have broken the law and children have been harmed. I would be more nervous about Kathy Baker or Charles Young interviewing my child than I would the OCR lawyers. At least the latter are not there to cover their own bottoms.
You know what? Forget it. You win. The government is scary, the black helicopters are coming for your children, and we have to make sure that the children are protected by the people who exposed them to harm in the first place. just so long as no one criticizes our excellent schools, then all is well.
Some organizations cannot learn without the experience of lawsuits, damage awards, and the public spectacle of trials. That's all unnecessary but apparently that's what Dana Tom wants. So let's just get on with it.
another neutral adult Who is the "neutral" adult you are referring to? Is it Chris Grierson? Is it the teacher who didn't intervene to stop the bullying? How about Charles Young, who failed to do his job as "compliance officer"? How about the mom of the bullying kids? Are they "neutral"? Or what about Kevin Skelly? Laurie Reynolds? Chad Graff? All those are the adults who want to be there. Are they "neutral"? There is one set of adults who are in fact neutral by law and policy. That is the OCR investigators. They are the neutral adults who have been sent by our own government to ensure that the dispute between the bullied child's family and the district is resolved fairly and accurately. OCR IS THE NEUTRAL PARTY. Only the most purposeful spin on what is happening here could argue that Kathy Baker is "neutral" and our government's neutral civil rights investigators are biased.
To palo alto parent and s. shriver (very funny moniker by the way, for those of us of a certain age). palo alto parent says that "The District is trying to protect itself." I think that is exactly the problem. OCR has really proven the value of oversight and multiple levels of government. I am very happy that they are here making sure that the District is following the rules and protecting kids. It is an extra layer of protection.
But to me the issue is protecting kids, not protecting the district. So I think having parents notified that someone from OCR will ask their child about what they saw with their classmates makes sense. If they have some reason to object, they can object, although I haven't heard of any complaints from parents. Having district lawyers and recordings and everything else doesn't make sense to me and sounds like it will create a much more stressful situation for kids.
For me, I'm much more worried about district staff who aren't following the law that protects kids who are vulnerable than about OCR staff who are asking questions to help protect them. I wish the district would think about how to get better at that, rather than how to "protect the district", which to me really means district staff members who aren't doing the right thing.
@concerned parent. I agree with you but I think it is important for the community to know that OCR is, in fact, the neutral fact finder according to federal requirements.
According to US Department of Education guidance, "OCR's role is to be a neutral fact-finder and to promptly resolve complaints. OCR has a variety of options for resolving complaints, including facilitated resolutions and investigations. OCR does not act as an advocate for either party during the process."
What happened at Duveneck is that the district lawyers and school board secretly enacted a policy of obstruction of the investigation so that OCR did not have access to necessary witnesses. As a result, the school year ended so that no witnesses were interviewed. By the time OCR is able to get into the school to interview witnesses, it will be another year later. Perhaps some of the witnesses will now be in middle school or others will have moved from the district. Memories will have faded, records will be transferred. It will be hard to piece together what might have happened from childrens' recollections of playground incidents months earlier.
That is by design. It is not an accident. It is what lawyers like Lenore Silverman (Web Link),
Chad Graff (Web Link) and Fagen Friedman and Fulfrost (Web Link) do when a client has things to hide and wants to fight. They stall, delay, try to run out the clock, hope witness recall becomes poorer, and so forth.
Sadly, the losers in this are the disabled, minority, and female students of this district who were entitled to the protection of federal law but now are being deprived of their rights.
For what is the big penalty that OCR could impose on the district if its neutral investigation concludes that the district has failed to follow law? What, for example was the penalty that OCR imposed on Yale when it found that Yale had not complied with sexual harassment law under Title IX? In the Yale case, male members of a fraternity marched over to the womens' dorm and changed "No Means Yes and Yes Means Anal!" The university had no adequate sexual violence policy and no means to enforce what it did have. There were many flaws in the system. You can't get a much more "hostile environment" than a mob of chanting men outside your daughter's dorm changing pro-rape slogans.
What did the big, bad, ORC do to Yale? It required it to follow the law next time.
And that is exactly what it has done in the Terman case. And, if the facts supported it what it would do in the Duveneck and Paly and Jordan cases as well.
Insisting that the school district follow the law would be good for our students.
But in the upside down, black is white, right is left, on is off, through the Looking Glass world of Barbara Mitchell, Dana Tom, and Camille Townsend (and the silent and useless world of Heidi Emberling and Melissa Caswell) this would be a bad thing.
Because in addition to helping PAUSD to follow the law next time, OCR might make our officials look bad this time. And that is what can never happen here. Our board is meeting in secret to make sure that PAUSD never looks bad. It's fine if it IS bad. Just so long as it doesn't look bad.
All of you people from Scharff to Simitian to the rest of the City Council and former school board members and city leaders are just apologists at this point. If you aren't publicly saying that you support full implementation of federal civil rights law then you are corrupt, morally bankrupt, and don't deserve to be public servants. Just go hang your heads in shame.
PAUSD Board: stop obstructing federal investigators who are just trying to do their job and help you to do your job.
I support PAUSD's brave stand in favor of local control against the power of the federal government. Schools can only operate when they are controlled locally according to local values. I applaud them for blocking the federal agents fr entering the school, something I wish I could have done better myself.
Of course speaking as a disabled person I do think that the rights of the disabled to equal schools should be respected.
Sorry to dissapoint you but, from what I read recently in The Weekly, PAUSD is not a supporter of your vision of "states' rights". PAUSD was also opposing the CA constitution and state law which prohibited charging for summer school. Only when pushed did they agree to stop charging. However, rather than refund the illegal fees as state law requires, they only offered the chance for parents to request their refund. Finally, they were forced to comply with the law and provide the refund.
Aside from the 1960s pseudonyms - really, "Shriver, Wallace, Mink" - I'd be curious what the reaction of these commentators is to the large number of editorials condemning some of OCRs positions. Especially notable is the one by Jonathan Turley - not exactly a right wing constitutionalist...
OCR does have an important role to play, they just need to base their positions on actual law. Regulatory policy based on "fake it until its precedent" can be very dangerous to the goals they actually are attempting to achieve.
Turley is a libertarian law professor. I'm not surprised to see him cited by people who oppose federal authority, but it's a little odd to see him cited as often as he has been in the last week. Wasn't the Wall Street Journal editorial page the other cite that went along with him, along with the men "false accused" of domestic violence accusing their wives of beating up their babies?
I've learned a lot in the last week about Barb Mitchell's positions, which identify very strongly with the Tea Party. I don't think they fit very well into Palo Alto, and I definitely don't think Barb meant to let them out into the open.
The claim that OCR doesn't base its positions on actual law is silly. They are the federal agency charged with enforcing federal civil rights law. If you want to be a denier, go right ahead, but at least try to dredge up some more evidence than one libertarian law professor, the WSJ editorial page, and wife beaters.
Excuse me, but are you now accusing Jonathan Turley of being a wife beater?
BTW - whenever I see him, its on MSNBC, and especially on Rachel Maddow's show. Hardly a bastion of libertarian thought....
Perhaps we should ask Jonathan Turley for his opinion on the handling of the recent PAUSD middle school bullying case. Here is what he wrote about school bullying in USA Today:
While many will chafe at the notion of moving from hall monitors to personal injury lawyers, litigation could succeed in forcing schools to take bullying more seriously.
The first step, however, is to dispense with the image of bullies as mere Scut Farkases waiting to be challenged and conquered. Bullies are not adverse object lessons for an educational system; they are the very antithesis of education. They are no more a natural part of learning than is parental abuse a natural part of growing up. Web Link
I commend your use of cites and not insults - this discussion would benefit more from that.
I do note that the date is 2008, so clearly he is referring to a different set of cases and not OCR's letter, which came out in 2010.
And, perhaps, it makes his 2012 criticism of the OCR approach even more telling?
Turley's comments are about the 2011 DCL on sexual violence. His concern, which was shared by a lot of libertarians at the time, was that requiring universities to use the "preponderance of the evidence" standard rather than the "clear and convincing evidence" standard that most used at the time for Title IX investigations of sexual assault might lead to too many findings of sexual assault.
The vast majority of law professors realized that the burden of proof plays a negligible role in cases like this making it an unimportant details unworthy of much controversy. However, some libertarians with an axe to grind really ran with that objection and stirred up controversy over the new rules.
The fact is that the problem has never been, and probably never will be, that universities are finding too many male students responsible for rape but far too few. Campus sexual assault in both high school and college is a serious problem and the Obama administration did the right thing by taking it seriously as a civil rights issue.
But anyway, what the hell does this have to do with anything at all happening in Palo Alto? I'll answer that: not one damn thing. This issue is in the weeds and is just being raised to scare people about OCR.
Whatever the burden of proof in sexual assault cases investigated under TItle IX might or might not have been in 2011, we can all agree (can't we, Parent?) that sexual assault is a civil rights issue that must be addressed by schools to ensure women an equal educational opportunity. Right?
And we can all agree, can we not that the severe, pervasive bullying, including physical bullying and violence, against disabled middle school girls is a problem that has to be addressed by federal law, right?
And we can all agree that when the school doesn't respond effectively to these violations of federal rights then the parents have every right to complain to the federal and state officials to protect their child correct?
And of course we can all agree that the federal government can and should have the power to conduct the proper investigation including interviewing witnesses, right?
And we can all agree, can't we, that in America people have the right to question and, if need be, challenge their government?
And we can all agree that very smart, reputable people around the US believe that the OCR, in the same 2011 letter that is being debated in Palo Alto, overreached and that very reputable publications found their complaints so important and credible that they chose to publish those views?
And we can all agree that NOT respecting the wishes of a girl who had something very inappropriate happen to her years ago off-campus, who did NOT want to press charges with the police and did NOT want the school to get involved back then either, MAY NOT be what Congress would have said is a "civil rights issue that must be addressed by schools to ensure women an equal educational opportunity. Right?"
That's all that is being said about the OCR; it MAY be reaching a bit beyond what Congress intended.
[Portion removed by Palo Alto Online staff.]
Re-reading your posts:
Why is Turley's political party affiliation even relevant? This debate is about what the laws require, not what they should require.
What is illuminating about our community's support for your position - that the school board should never question and should always follow the federal government's guidance even if is beyond what Congress intended - is that our elected reps are not standing side-by-side with you on this.
You say that "all of you people from Scharff to Simitian to the rest of the City Council and former school board members and city leaders" don't appear to agree with you. Calling them "corrupt, morally bankrupt" and directing them to "hang [their] heads in shame" probably ensures that they will not look to you for guidance on this anytime soon.
Any links that show what "the vast majority of law professors" claim or are we to take your word on that?
[Portion removed by Palo Alto Online staff.]
You ask what the debate about OCR has to do with Palo Alto?
Many commentators, including scores of other law professors, find the "preponderance of evidence" standard deeply troubling. There are three basic standards of evidence.
1. "Beyond a shadow of a doubt" - normal criminal case standard
2. "Clear and convincing evidence" - what normal campus procedures tend to be
3. "Preponderance of evidence" - meaning more likely than not, what many civil cases (such as contract disputes) use.
OCR has forced colleges, by threat of losing federal funds, to adopt standard 3 in sexual harassment cases.
To use your phrase, we can all agree that a lower standard of evidence leads to more convictions. We can also agree, that a lower standard of evidence leads to a higher risk of convicting innocent people. That is why we use standard 1 for criminal cases. Standard 2 seemed a reasonable compromise.
OCR has forced campuses, without the benefit of any additional legal authority, to use standard 3.
Many people of good will find this highly problematic. Colleges, facing the loss of federal money - which would include many student loan programs and research budgets - have been forced to adopt this standard.
The "preponderance" standard is the correct standard as it is the standard used in civil cases, and investigations of college misconduct are civil, not criminal, matters. If a student is found to have committed misconduct in college, the matter is a civil matter, the consequences are civil (economic) rather than criminal (loss of liberty). If a student sues a college for failing to provide her with an equal educational opportunity, then the burden of proof she will face is the preponderance standard, not some higher standard.
There is no reason to apply a beyond a reasonable doubt (what you call "shadow of a doubt") standard to a civil matter unless you tend to disbelieve allegations of rape. There is also no reason to invent a "compromise" standard for such matters either.
OCR is well within its statutory and other legal authority to require schools and colleges to use a standard of proof derived from civil matters rather than one derived from criminal matters for resolving questions of civil rights and liability.
Again, this is just completely irrelevant to the question of whether disabled children are bullied with impunity in the PAUSD schools or whether we have a rampant rape culture at Paly. For one thing, the standard of proof you use in your investigation hardly matters if you have no investigation, no policy requiring one, and no officials such as Charles Young (compliance officer) who are even aware that they are supposed to conduct one.
PAUSD is a long, long, way from being able to complain about the burden of proof to be used in its nonexistent investigation process. If its only error was that it used the wrong burden of proof this would be a very different conversation. So please stop trying to distract people with this irrelevant matter.
we can" wrote: "And how is that you know "what happened at Duveneck is that the district lawyers and school board secretly enacted.."? You must be involved in this case to be privy to those "secrets." Didn't that family trust you to keep case-related information confidential?"
I am not involved in anything at Duveneck and didn't have any confidential information. I read the Post last week, where the headline was "School Officials to Rebuff Feds: Won't let investigators interview kids without written consent of parents," which quotes Board President Dana Tom, VP Barbara Mitchell, and board member Camille Townsend (a quorum of the board) saying that they had blocked the interviews of elementary students at Duveneck.
I can understand why you missed this story -- the Post isn't my favorite reading material either. And of course you were very busy googling Turley's views of the April 4, 2011 DCL on the burden of proof in sexual assault cases so you could share that with us.
The Post story reports on a decision that appears to have been made by the board (Mitchell: "We will not permit interviews going forward that don't involve an affirmative parental consent."). That decision wasn't made in public or even announced to the public following a closed meeting. Based on the various PRA documents posted on the district website, it appears it was the subject of discussion and then a decision made in the board's May 7 closed meeting, probably in violation of the Brown Act since it has nothing to do with any litigation exception, and then never reported or discussed or debated or deliberated on in public. That decision was very consequential because it was a decision to block OCR's access to interviewing witnesses to possible civil rights violations.
The story also repeats inaccuracies being fed to it by Barbara Mitchell. For example, Mitchell accuses OCR of breaking its own procedures by not obtaining written consent. But OCR's procedures allow it to interview students without parental consent if the questions are about events in which the student was not directly involved (i.e., witnessed as a by-stander) and no individually identifying records are kept of the interview. Both of those conditions were met in the Terman interviews, and consent was not required under the procedure manual. Indeed, Charles Young's email to the board about this reflects the fact that someone, probably Katherine Baker, negotiated with OCR to allow parents to opt their child out of the interviews, an agreement OCR was not required to make because the questions were of a general nature and no records were kept.
Under OCR rules, even if the interviews are general and no records are kept, the district can refuse. In that event, full written parental consent is required. That's what happened. In the Terman case, the district didn't refuse but asked for the opt-out clause and got it. The district thought it was going to prevail. Charles Young told the board not to worry because our students just told the investigators how much they liked their school and the whole day of interviews cast the district in a very positive light.
Young should have been furloughed for that email alone, which just paints him as hopelessly out of touch with the reality of the situation and willing to spew happy talk on any topic upon request.
So once the Terman interviews resulted in a negative finding against the district, it is clear that the lawyers, staff, and board wanted to ensure that didn't happen again. They didn't like those student interviewees telling the truth about what they saw. Dana Tom had the temerity (and lack of good judgment) to complain to the Post that the district's lawyers and Katherine Baker weren't allowed to sit in on the student interviews that implicated Baker in failing to follow the law. Tom also stated falsely that "no other adult" was allowed into the interviews, even though OCR's own rules provide that a parent can attend the interview with their child if they desire.
Mitchell certainly knows that OCR didn't actually break any rules, but is running a campaign to smear OCR in order to scare parents away from allowing their children to meet with OCR investigators. What is clear is that Mitchell and Tom's belligerant and dishonest portrayal of the facts and this decision to refuse to permit general student interviews by OCR officials has now earned PAUSD a Compliance Review from the federal government. The non-cooperative attitude of our school board President and Vice-President has made this immeasurably worse than it was.
We are now in a Fact-Free-Zone in which Mitchell and Tom feel fine just making up any half-truth or falsehood about OCR and the federal civil rights laws in order to accomplish their mission which is to ensure that PAUSD can continue to allow unchecked discrimination on the basis of sex, race, disability, sexual orientation, or other factors. I would imagine given Mitchell's fringe, Tea Party views that she believes it should be up to the principal whether or not to follow the law.
As regards the real risks of lawsuits for money damages that you raise, it is the course that Mitchell and Tom are steering into open defiance of the federal regulators that is placing the district resources at risk. If people can no longer obtain any hope of obtaining needed services for their children though an administrative remedy through OCR then of course, yes, they will sue.
And of course, the fact that we aren't using the help OCR could be giving us to avoid violations of rights that could be actionable isn't helping either.
Barbara Mitchell [portion removed] does not trust or respect federal authority. She appears to be leading Dana Tom and the rest of the board around by the nose and taking this district down a road that is nontransparent and not good for the district's students. Our students deserve the protection of federal law.
No reason not to use "preponderance"? A 51% confidence in guilt - the lower end of the "preponderance" standard - seems incredibly low to expel a student for up to 3 years from college, along with other consequences. A flip of a coin is 50% evidence.
Certainly more guilty people will be found guilty, but also too many innocent people will be found guilty. Especially when the OCR insists on no cross-examination, etc.
While this is a different OCR "Dear Colleague" letter, it seems very revealing of OCR's perspectives on standards of evidence and standards of investigation. And certainly raises at least a yellow flag of caution.
@Parent -- in general, civil liability is always determined by a preponderance. Beyond a reasonable doubt is a standard utilized in a criminal context. A Title IX investigation is not a criminal context and no one is being found "guilty" in it. Nor is a university disciplinary hearing a criminal context. Both are civil. The real question is whether to use "clear and convincing" or "preponderance." The difference between these in terms of results is likely to be negligible.
I agree that there is something that some people have reacted to very negatively about the shift from "clear and convincing" to "preponderance." I can see that if you were Arne Duncan or Barack Obama you would not have approved this lower bar for sexual assault investigations by schools and colleges -- you would have preferred something else. But under our system of government, Congress delegates that kind of authority to the executive branch. The executive branch made its interpretation of the rules and applied them in the accountability for federal funds context.
Congress, interestingly, had the opportunity recently to reject this standard when it enacted the CampusSave act, but it did not do so despite pressure from the right wing to do it. Rather, the Republican controlled House enacted a legislative package that supported DoE in its efforts through the DCL and did not address the reduced burden of proof, allowing it to stand.
This is some evidence that Congress does in fact approve the Department's handling of the question.
Again, there is no issue regarding this burden of proof in PAUSD. The issue here is much more elementary. Is there a hostile environment? is there a policy (no). Was there an investigation within the required timeframe (it appears that the answer is no). Were admins and teachers properly trained in sexual violence (again, it appears not). The issues are basic and have nothing to do with the subtlety of a burden of proof.
We need help. Generally OCR offers help to districts on a voluntary basis. Did OCR offer PAUSD technical assistance prior to initiating its compliance review of sexual violence/rape culture harassment? Did the district refuse that help in favor of its new, not publicly disclosed, apparently more aggressive posture? What we have right now is a lot of conjecture becasue nothing is happening in public and Mitchell and Tom are choosing which facts to selectively reveal to the Post.
if there is nothing to hide, please hold public meetings about these subject and allow the public to participate in these decisions as required by law.
Your comments on the congressional role are new and interesting, I will have to look into that. I'm not so sure about the slight difference in standards though, unless campuses are actually ignoring the preponderance standard and actually demanding more.
@Parent, thank you for your question about CampusSAVE, enacted as part of the Violence Aganst Women Act reauthorization.
According to the Center for Public Integrity, which reported extensively on the issue of campus sexual assault in conjunction with NPR, "The legislation will also codify some crucial components of the Education Department’s first-ever federal guidance on how schools must respond to student complaints of campus rape, issued in April 2011."
The "preponderance" standard was controversial among far-right Republicans, who succeeded in stripping it from the bill, however, Democrats and womens' advocates fought off an effort to incorporate a higher burden of proof, leaving the OCR interpretation intact.
I hope that you will read the entire article and realize the important and good role served by OCR throughout our country protecting the rights of our minority and female students, the disabled, those from other national origins, and transgendered and gay students as well (also under title IX).
The Office for Civil Rights is a very important part of our government, and is doing very important work. It could be really helping Palo Alto and instead, in a heartbreaking loss for the community's children, this school board has apparently decided to enter into a shooting war with the federal government. If you have any kind of open mind at all, please think about whether this really makes sense or not. How could we possibly want to paint these advocates for justice as the bad guy? It is enough to really make you weep for this community.
Your emotion on this issue seems genuine and heartfelt.
To summarize our discussion, however, it seems clear that Congress did not endorse the preponderance standard, as you said it was stripped from the bill. I also do not see any endorsement in the law - although it is long and complicated and I might have missed it - for the OCR's views regarding the rules of campus procedure that are also controversial. You conclude that this leaves the OCR's interpretation in place; an alternative conclusion is that it leaves the OCR's interpretation unsupported in law.
It is risky when a regulatory office gets ahead of their enabling legislation, as it creates a house of cards built on strained interpretations. Although difficult, it is much better to win the political battle and actually pass a proper law.
You are mistaken about both the provisions of the bill and about how to understand the meaning of what Congress did and did not do. Your last two sentences make it clear that you have a particular perspective and that we will have to just agree to disagree.
Pretending a wood bat is made of foam doesn't make it hurt any less when it hits you in the head.
Congress’ Campus SaVE applies to colleges, where up to 25% of female students are victims of some form of sexual assault. Congress did not extend it to high schools. Even if it had, the provisions people are debating here would not kick in when a teacher at the school knew about an attack if the victim did not want the school to be involved. This is what it sounds like happened at Paly.
- Applies when the victim wants help.
- Sets in motion disciplinary proceedings with both the victim and accused present.
- Takes effect in 2014, not before.
Web Link (Section 304).
That is quite different from what you and Professor Michele Dauber claim, which is that federal law requires high schools to investigate attacks regardless of the victim’s wishes. The only investigations that the Civil Rights Act mentions in this situation are those that the federal government must do if asked. Your “investigation” rule is from the 2011 OCR letter written by Ali. In 2013, Congress had an opportunity with Campus SaVE to codify Ali’s position on that, but did not.
You also say that in Campus SaVE Congress in essence enacted the “preponderance of evidence” standard by its silence on that issue too. As Parent points out, the reverse is true. Congress debated what burden of proof to apply. Drafts called for the “preponderance of evidence” standard (for example, S. Bill 128, 2(a)(5)) but the version the President signed into law did not include it. A Google search pulls up news reports about senators on the Judiciary Committee, experts on standards of review, removing Ali’s preponderance standard because of the harsh feedback they had received.
What Campus SaVE says is that the colleges must state “the standard of evidence that will be used during any institutional conduct proceeding.” That’s a far cry from Congress saying that OCR makes law and sets the standard.
"a teacher at the school knew about an attack if the victim did not want the school to be involved. This is what it sounds like happened at Paly."
You have no evidence for what the victim did or did not want in terms of school involvement. But the school's obligations are not limited by the wishes of the victim. Once the school is aware that a hostile environment has been created the school has an obligation under caselaw, as well as DoE regulations on sexual harassment, and OCR guidance to intervene effectively to stop the harassment and to provide remedies for the victim and school climate.
Your “investigation” rule is from the 2011 OCR letter written by Ali. In 2013, Congress had an opportunity with Campus SaVE to codify Ali’s position on that, but did not.
Congress had an opportunity to eliminate or modify the DoE Guidance and did not do so. That is the important point. Where that guidance is not modified, it continues to be the rule. Congress did not change any of the OCR 4/11/11 rules, therefore they are still applicable. I am sorry you do not understand how administrative law works.
"You also say that in Campus SaVE Congress in essence enacted the “preponderance of evidence” standard by its silence on that issue too. As Parent points out, the reverse is true. Congress debated what burden of proof to apply. Drafts called for the “preponderance of evidence” standard (for example, S. Bill 128, 2(a)(5)) but the version the President signed into law did not include it. A Google search pulls up news reports about senators on the Judiciary Committee, experts on standards of review, removing Ali’s preponderance standard because of the harsh feedback they had received."
I already said that. Yes, far-right conservatives (the same people who for example, are banning all abortions even in cases of rape) wanted to change the rule. They did succeed in removing the DoE rule from the bill but left standing the administrative law rule that is now in place. What that means is that the effort to overrule Russlynn Ali's April 2011 DCL was UNSUCCESSFUL. Congress *could* have changed it but did not have the votes to do so. It stands as the law unless and until the Republican side gets the votes to overrule it, or a new administration changes it. If Jeb Bush is the next President perhaps you will get your wish that this country would be less interested in protecting rape victims. Again, I am sorry you do not understand the idea of administrative law.
Perhaps some really retrograde school district somewhere will challenge this provision in federal court. Perhaps they will argue that the 2011 DCL exceeds the department's authority under the spending power. Perhaps some really far-right wing school district will argue that it wants to protect rapists and bullies rather than just be like all the other school districts in the country and just follow the rules.
Perhaps some school district that has money to burn on legal fees due to a sudden unexpected tax windfall will decide to lawyer up and challenge federal law and take a case to the US Court of Appeals for the Ninth Circuit and argue there that the Ninth Circuit should find that the DCL exceeds the scope of the power delegated to the Department of Education or that it represents an unlawful coercion on the school district to accept federal money. That district could argue that although Congress could have overruled the DoE interpretation in CampusSave it didn't but it also didn't adopt it, meaning that it really doesn't like it much but not so much that it overruled it. And that means that the district shouldn't have to follow a law that Congress doesn't like much, not so much that it overrules it, but not much.
Maybe that district, which is going to spend taxpayer money to fight for local control over the handling of rape, would have to show that the conditions it is being coerced into accepting it has to accept because the federal money constitutes such a large part of its budget that turning it down would represent a destruction of its schools. See NFIB v. Sebelius (Obamacare). Such a district that wanted to fight to protect local control of rapists and bullies would presumably be able to show that the federal portion of its budget was large, perhaps as large as 10% as in the Medicaid case.
In such a case, a mere 3.3% of the annual budget would be a hard sell to demonstrate that it would be coercive. The district can merely turn down the money. No money, no compliance problem. Crazy Tea Party people always want to have it both ways -- they want the money without the rules. If you don't want to follow federal regulations surrounding the receipt of federal funding, please turn it down. It is a very small part of the PAUSD budget. There is no coercion.
I did not see in any of your lengthy posts a reply to my question:
Do you have any links that show, despite the Senate Judiciary Committee's concerns when deliberating Campus SaVE, that "the vast majority of law professors realize that the burden of proof [is] an unimportant detail" or are we to take your word on that too?
On and one other thing -- the district can't challenge the preponderance standard under Title IX if it isn't actually part of the case or controversy. It can't argue that the entire 2011 DCL shouldn't apply because there is a part of it (the preponderance standard) that is included in the rule but that isn't at issue in the PAUSD case. The entire rule is not infected and invalid due to the mere presence of a provision that is problematic if that provision is not at issue.
So, what else could PAUSD challenge? The idea that when it has actual notice that a rape victim has been bullied so extensively that she left school it has to do something about it? That would be good press.
Perhaps the idea that when there is severe and pervasive harassment based on sexual violence that the school has to have a policy, conduct an investigation, and initiate remedies? I'm imagining the New Yorker article: "In the Heart of Silicon Valley, The Unlikely Tea Party Takeover" -- George Packer, I hope you are watching this debacle.
Or maybe the rule that OCR can conduct Compliance Reviews at all. Perhaps PAUSD can get on the soapbox and go for Full Crazy. Yes, we can hire Fagan Friedman (Web Link) to launch a full frontal assault on the right of the federal government to restrict or audit the use of its dollars in the absence of an individual complaint. Those schools in the south and southwest where Mexican families are too intimidated by the possible loss of employment to file a complaint? Screw them. This is PAUSD. Let's make some law!
Also, please cite and link to any 9th Circuit case law or federal regulations which back your claim that schools have an affirmative duty to investigate regardless of the victim's wishes.
By your logic, the law has to say what is NOT the law as well as what IS the law. That's ludicrous.
It is clear that you will not budge from your claim that federal agencies have the power to write laws and, your new twist, which is that it is Congress' job to chase after them and draft legislation if it does not happen to agree - kinda a bottom up approach. Consider re-taking a high school Civics class to refresh your memory on how laws are made in our country because you are just flat out wrong about that.
BTW - You are probably the only one who believes that Palo Alto schools are run by "Crazy Tea Party" extremists who want to "protect rapists and bullies" and to enter into a "shooting war with the federal government." Continue making those claims though because they undermine your unsupported interpretations of the law too.
Agency interpretations of law and major guidance documents are *law* unless Congress indicates that the agency has got it wrong, or unless a court determines, after according the agency sufficient deference for the type of guidance, that the agency guidance conflicts with the language of the statute or with Congress's intent. None of those things are the case here.
That is how our three-branch system of government works. Congress passes a statute, enforcement is delegated to the executive (here, OCR) and the court will determine whether or not the agency got it right, after according the agency deference for its judgments.
Again, I am sorry that you don't understand what agency interpretation is, how it works, why we have it, or what conditional spending is. I don't have time to teach this anymore right now and you are not an interested student anyway.
If PAUSD wants to challenge the Department of Education's interpretation then it has to wait for a court to determine who has the better interpretation of the legislation. Under such conditions, the agency receives a great deal of leeway from the courts (the specific level of deference depends on the type of guidance). I am just giving you some idea of how that is likely to go, and also some idea of how it will be received in the world outside of the PAUSD bubble.
The least popular part of the 4/11 DCL is the preponderance standard, which is in no way at issue in the PAUSD case. PAUSD would be left to challenge the parts that are at issue. Right now, per Barbara Mitchell, it seems to be challenging the right of OCR to even conduct compliance reviews at all. That is a no-brainer, loser dog and making that argument is a giant waste of taxpayer dollars. Even considering that argument is a giant waste of taxpayer dollars.
Obviously this school board thinks it has mad money to waste on hunting Moby Dick.
The whole point of the "preponderance" discussion is to highlight that claims that the OCR sometimes overreaches prove to be true. Congress and the President, when they reviewed the 2011 OCR letter while working on the 2013 legislation, refused to put a stamp of approval on all OCR rules.
If the OCR went too far by requiring preponderance as the standard of review, it might have overstepped elsewhere in that letter too. For instance, is its position that schools have to investigate every sexual harassment claim and rumor outside the law? What are schools to do if investigate means they have to disregard the victim's wishes and perhaps even violate students' federally protected privacy rights too?
These are valid questions that come out of a deep concern for students. School districts have a duty to ask those questions to get answers that will help them sort this out.
"School districts have a duty to ask those questions to get answers that will help them sort this out."
This is incorrect. School districts have a duty to follow federal law, as established under our tripartite system of government, which is made up of Congress, the Executive, and the Courts. Notice that nowhere in that three-branch system is "local schools." We have a democratic process, and it has operated. Unless and until the law changes at the federal level, there is no "duty" for a local school district, which is a creature of the state of California, to go rogue and begin to investigate whether or not the executive branch is faithfully executing the laws of the United States.
That is the job for the courts.
In the federalist system, the States can have a role to play. It should be less than it is, but that is another's day's lesson. If a state feels that the federal government has overreached its authority under the Constitution, then the state can challenge the government. In this case, I do not see that the State of California is taking up the banner of "local control of rapists," or "bullying is a matter of local preference," or "site-based control of disability harassment," or demanding the freedom to have no policy on discrimination on the basis of sex or disability.
Let's cut the crap. What is happening here is that PAUSD doesn't like "outsiders" coming in and telling us how to do things. We have local customs (site based control, treating rape that happens off campus as if it is no nevermind of the schools, allowing a certain amount of bullying if the bullies are the children of power-moms, and so forth). We have "local customs" that "keep the peace." We don't want outsiders, from the guv'mint telling us how to run things. We think that we shouldn't have to follow the rules, which seem to us like they were written for others.
But we would like to have the money.
Now our school board is going to spend our money to "preserve our way of life." This is just the same thing that happened all over the south in the 1950s and 60s. The only thing missing is the "Impeach Russlynn Ali" billboards (but best be careful about that, because I am thinking you are unaware of where she works now).
This is a stupid, idiotic, unbelievably misguided waste of taxpayer dollars that could be going into the classroom. Jerry Brown is looking for a reason to end basic aid and this [portion removed] strategy could well provide what he has been looking for. If PAUSD is arrogant enough to waste money on this, it obviously doesn't need a state subsidy.
This school board's Tea Party bent is making this far worse than it could have been. All we have to do is just cooperate and we can benefit from the government agency help and learn how to do this right.
I don't quite follow your obtuse metaphor about soft bats.
If it is trying to speak to the broader pattern of the district's conduct over these issues, then I would offer a different saying, "When you find yourself deep in a hole, stop digging." Sadly, it appears that our district leadership seems to be following the sort of strategy that "We can all agree" is supporting in this thread. That is, when you find yourself deep in a hole, dig harder, surely you'll eventually find an escape hatch. I would suggest that the far wiser option would be to take the rope that's being offered and climb out. Further, don't continue to blame your situation on those who warned you earlier that you were digging in the wrong direction. Unfortunately, that would require our district leadership to exercise some humility, for the betterment of our students, and to abandon an ideology that seems to think we are politically and legally semi-autonomous.
Digging--welcome to the semiautonomous region of Palo-Alo-Alo-altistan.
May I ask why "Curious" thread was locked? link - Web Link
I am asking here since it seems to me that this thread is dealing with issues similar to the thread locked.
Curious - Thank you.
Ss, [portion removed] Bottom line is you are assuming that what is in the OCR's letter is law and others are saying not only doesn't it reflect Congress' laws the OCR doesn't have the power to write its own laws. You are right that if the OCR sees its role as expansive and insists that it has the right to do either one, the school board will have some work to do if it believes what the OCR is asking violates other rights students have, it is impossible to comply without a huge diversion of resources etc. If either, it will figure out from its lawyers whether the OCR is overreaching or not. It is jumping the gun to dump on the district. It is just asking questions, assessing the impact, etc. No one has decided to disobey the OCR.
From the quotes of Board members in the article in the Daily Post of July 19, 2013, I gather that Dana Tom, Barb Mitchell, and Camille Townsend have all decided that the best defense is a good offense. How much better it would be for the finances of the district and the needs of our children if our Board could see it's way clear to actually addressing the issues the Office for Civil Rights has pointed out in it's report. Instead they seem determined to argue that our children should not be talked to unless a parent has taken the time to read the request, fill it out, sign it, and get it returned to the school in time. In addition, the Board is concerned that these "investigations are taking time away from school employees." This all reminds me of the effort made in the last presidential election to make it more difficult for certain people to vote. I presume the thought behind the Board's actions are that if the OCR is prevented from talking to the students and employees maybe this whole situation will never happen again and the district can just go back to following it's own rules without any outside interference.
It seems fairly obvious that the Board's public desire to protect our children from the evil OCR questioning them is really just a CYA tactic on the part of the Board and the Superintendent. If even one parent had commented on this thread that it bothered them to have their child spoken to by the OCR at Terman I would find it slightly more believable that someone other than the Board is disturbed by a branch of the Department of Education talking to children in the public school system. As it currently stands, however, any "parent" commenting at this point will appear to be a prop being used by the powers that be. If only all the legal energy that "we can all agree" is expending to prove S.Shriver wrong were being applied to some of the very real problems the district faces vis a vis children who are in protected groups, what a much better school district we could have. As it is I guess we will just have to hope that the OCR prevails and continues to take our district to task for failure to use the uniform complaint procedure and failure to protect certain groups of children from discrimination and harassment.
I believe the soft bat comment is meant as a reminder that even though people such as Barbara Mitchell and "Parent" and "we can all" portray the federal government as something easy to fight (a foam bat) it is not in fact foam and that is something PAUSD may have to learn the hard way.
@Myra Bradwell - Here's to the rules of civility from another time! I am sorry to see your first posting gone. Link - Web Link
Let me get this straight. Barb Mitchell, Dana Tom, and Camille Townsend are voting in secret to use our property tax dollars not to educate our kids, but to pick some Tea Party-inspired fight with the federal government? I read the Post interview with them last week. I might as well have been reading some House Republican spokesman talking about Obamacare or the EPA.
Mitchell and Tom seem to be the ringleaders on this. I agree with the metaphor of "digging a hole." But they aren't just digging an empty hole, they are filling it with our tax dollars and district reputation. Do we really want headlines like "PAUSD defies federal government on civil rights"?
I didn't vote for this, I don't agree with it, and I hold Mitchell, Tom, and Townsend responsible for it.
Anyone who thinks that the April 2011 OCR "investigation" requirement is simple and without issue should take a look at what is happening at UC Berkeley and USC.
UC Berkeley: Conducted an investigation that it resolved through "an early resolution" process rather than a formal hearing. UC Berkeley accuser: Thought that an investigation that did not include a hearing was insufficient and so filed a complaint against UC Berkeley with the Department of Education’s OCR.
USC: Conducted an investigation with witness interviews, etc. Resolution was rehabilitative and educative. Said that it thoroughly investigates complaints, remediates, and when appropriate hands out discipline that at times includes dismissal from the university. USC accuser: Even though witnesses were interviewed and both sides where consulted, she was not happy because USC did not suspend the person she accused. (Her rape charges against him are working their way through the criminal system and have not been ruled on yet.) She also complained that USC's investigation did not comply with the law because it took too long; USC took 2-4 weeks to interview witnesses and more than 60 day to complete the investigation. She subsequently filed a complaint with the Department of Education’s OCR too.
What the UC Berkeley and USC cases may mean for public high schools which want to avoid complaints and lawsuits is that their "investigations" will need to be immediate and comprehensive with judges, attorneys, witnesses, and evidence.
That investigation BTW is in addition to the courts and the police, experts at determining if a crime has been committed, which do the exact same thing.
That is why it is important to determine if the word "investigate" in the OCR's 2011 letter is law. If it is, Paly and all public high schools in the US will be setting up those parallel legal systems, with principals acting as judges. That cost lots and takes time away from other tasks.
And think about it from the students’ perspective. Do the accused and accuser really want principals to be the judge given their lack of training and expertise in fact finding, the law, etc? To be entrusted with the job of a courtroom judge in California, you must have a JD and at least 10 years of experience. How many principals in the US fit that bill?
In a courtroom, procedures are in place to ensure that the judge you get is impartial. If one of the students thinks that the principal is biased, who decides? If he or she is biased, who steps in? Will the OCR force the principal from the high school in the town over to take time away from his or her school so there can be someone to run other schools’ OCR-mandated investigations?
Or must schools hire private judges each time there is a complaint or rumor? Who oversees and pays for that? Are appeals allowed? Who hears and pays for that?
What evidence will be admissible and reliable? California legislators wrote an entire legal code telling judges and lawyers what evidence is and is not allowed in the courtroom. Web Link Must schools write their own rules of evidence or, if they adopt California's, will they need to send staff to law school to learn these complicated rules?
These are just a few of the tons of questions an OCR rape “investigation” requirement raises.
To "we can all agree",
Yes, I can see that you want to fulminate against OCR's role in sexual harassment and sexual violence. That's a political agenda, that's fine, and I wish you well to do it on your own time and your own dime.
Here is my view: I don't want my school district to waste our money on pursuing a right-wing political agenda. What really burns me up is when politicians like Barbara Mitchell and Dana Tom decide that they want to do this stuff in secret. You get to post on an anonymous board, but who cares? They are making real decisions and spending real money, but they also want to do it in secret. No thanks.
If a rape occurred, courtroom proceedings will end with the rapist in jail which, from the victim’s perspective, removes the student from school and so is in essence a suspension. There should be serious consequences and there will be.
So if the criminal hearing results in a de facto suspension, what will a school-based investigation do that that hearing in criminal court won’t? Allow for the OCR's lower burden of proof so it will catch more students, rightly and wrongly accused?
If so, it turns out that Shriver’s dismissive and unsubstantiated comment (“The vast majority of law professors realized that the burden of proof plays a negligible role in cases like this making it an unimportant details unworthy of much controversy”) becomes of paramount importance.
Parent above says that the legal burden for rape in court is quite high (“beyond a shadow of a doubt”) since courts really need to be certain that the student was raped so they don’t MISTAKENLY put an innocent person in jail and ruin his/her life.
Shriver argues that the burden of proof for school-based rape investigations is very low (“preponderance of evidence” i.e. 51%). That means that she thinks that MISTAKENLY denying a student his or her right to a public education, and MISTAKENLY requiring him or her to check the “suspension” box on all college and financial applications and give details about it, which will deprive that INNOCENT student admission into college, loans etc, too is not a big concern of hers.
If anything, the burden of proof in school-based investigations should be higher than in criminal proceedings to counterbalance an investigation which, due to lack of expertise and training in the law, will likely be a less fair and informed process.
The courts are set up to do this and are the experts.
It does seem scary when the OCR interviews minors on rape offenses without parents being present. What will the legal consequences be for those interviewed?
After we work through these fascinating burden-of-proof's and what-if's, we can start on the age-old "how many angels can dance on the head of a pin"?
The fact is, the OCR investigations so far haven't caught any student rapists, so we don't have to fixate on that. They have found out that Kevin Skelly and a bunch of other folks whose names I don't have time to look up screwed up royally.
The school board, which is supposed to be looking after our interests so we can go do our day jobs, instead decided to circle the wagons, dig a bunker, and sit around inside it in secret meetings listening to Barb Mitchell reading from Tea Party tracts.
You all can be outraged by fictional rapists. I'll worry about how come I voted for people who didn't tell me the truth about their politics.