Editor's Note: On Tuesday, June 17, 2014, the Palo Alto school board will vote on a resolution declaring that the school district will "expand its pursuit" to have the federal Office for Civil Rights (OCR) change its investigative practices and to review mistakes the board asserts occurred in one of the several cases investigated.
At the board's June 3rd meeting, all five board members voiced support for the resolution seeking redress against OCR.
In 23 "Whereas" clauses in the resolution and in a separate memo written by board president Barb Mitchell, vice president Melissa Baten Caswell and Superintendent Kevin Skelly, numerous statements and allegations about OCR's conduct were raised. Among other things, the memo accused OCR of being "purposely confrontational and disruptive." The Weekly editorialized on the resolution on June 6.
Palo Alto Weekly contributing writer Terri Lobdell, who has followed and reported on the district's work with OCR over the last 18 months, prepared the following background material on four of the most important issues being raised in the memo and resolution. We hope it provides readers who have been following these issues with a better understanding of the background and context.
The issues, below, are as follows:
OCR Requests to Interview Students During Its Investigations
School District's FOIA Requests
OCR's Notification to District about Terman Findings
District's Appeal Regarding Alleged Errors in Terman Case Findings
Past Weekly stories on this topic that Lobdell has reported on include: "Out of the Shadows: How a federal inquiry is changing the way schools respond to bullying"; "Power to Hurt: How social media impacts our kids"; and "New school district bullying policies given 'green light' by feds and state.
Lobdell is a non-practicing attorney and former Palo Alto school parent living in Palo Alto; she is married to Weekly publisher Bill Johnson.
Issue #1: OCR Requests to Interview Students During Its Investigations
A lot of questions have been raised about OCR's requests to interview students as part of its investigative processes in Palo Alto. The information below might be helpful as the community considers the implications of these questions.
The first question that often arises is: Why interview students? The reason most often given is that student accounts can play an important role in piecing together the truth about misconduct that allegedly happened at school, whether it is sexual harassment, school fights, cyberbullying, cheating, streaking, egg wars, drugs at prom, etc. This is why school administrators, teachers, police and OCR attorneys often seek to ask students questions when they want to find out what happened in these types of incidents.
Teens especially can be knowledgeable, articulate, insightful witnesses, if provided a confidential, nonjudgmental adult ear. Many teens will speak freely and honestly about their school experiences, if they feel safe and listened to. Many people who work with youth feel it's important for adults to take the time to hear what youth have to say, and to take youth seriously on topics of community importance.
OCR often depends on students as important witnesses when piecing together the picture of what happened with classmates in bullying or harassment cases, and also general school climate issues. Often students are among the most well-informed, impartial witnesses available on these topics. Conducting student interviews is an integral part of an OCR investigator's job, as it is for school administrators, district officials and some police officers.
In the Terman bullying case, for example, middle school student interviews (35 in total) were a significant part of OCR's investigation. Much of the corroborating evidence of bullying and harassment in that case, as described in the OCR's findings, relied upon student accounts.
According to OCR's written findings in the Terman case (in which the bullied student was referred to as "Student"), multiple students interviewed by OCR described a hurtful game they called "(the Student) touch." The game was played with both the Student and another disabled student (like a game of cooties).
Many students told OCR that they consistently tried to avoid the Student, that a lot of people bullied the Student and called the Student names like "stupid," "slow," "annoying," and worse. Classmates said, "If you're hanging out with (the Student), you're a loser too."
These and other forms of peer harassment began in elementary school and then continued on at Terman.
Several students told the OCR that they had never said anything to school staff about the Student being bullied because they were worried about being accused of being a snitch.
The OCR attorney arranging and leading the Terman student interviews was Shilpa Ram, a former teacher.
The process Ram followed for setting up the Terman student interviews was summarized in a Palo Alto Weekly June, 2013 article, and in documents made public during spring 2013. OCR proposed this procedure as its standard approach. The Terman staff cooperated fully. How it worked is described below:
OCR asked Terman to send out notices to parents of all students who had been in the complainant's classes the previous year. Terman's then-principal Katherine Baker agreed, and sent out a letter dated Oct. 12, 2011, on school letterhead, addressed "Dear Parents and Guardians." The letter said:
"Please read the enclosed letter from the U.S. Department of Education, Office for Civil Rights (OCR). They are visiting our school on Thursday, October 20, 2011, and are inviting your child to participate in a group interview that will help them determine if our district is operating its programs without discrimination on the basis of disability. Please be advised that these interviews are NOT part of a district investigation, but we are cooperating with the (OCR). Student group interviews will take place during class time, and will be conducted by representatives from OCR. Terman staff will not be present at the interviews. Your child will be able to make up any work missed during the 30-minute interview session.
"If you do not wish your child to participate, please sign and return the enclosed form to the front office as soon as possible.
"If you have any questions you can contact OCR directly. Contact information is on the enclosed letter."
According to the school district, six parents chose to opt out for their students; no complaints about the process were received by the school, before or after the interviews.
Terman staff then provided OCR with a list of students available for interviews. From that list Ram organized student interview groups of 4-6 from each class (that the bullied student had attended the previous year), with 35 minutes allotted to each group. There were six student groups altogether, one from each of four classes on the bullied student's schedule, and two from the student's P.E. class.
Earlier that month, in an email dated Oct. 6, 2011, Ram described the interview process for Terman staff, and asked that no school staff or counsel attend the student interviews to allow for greater confidentiality and comfort. She wrote:
"As you'll see in the parent notification, we want to protect student confidentiality in the interview process. We will not collect any personally identifying information about the students. We have found that the presence of school staff or counsel could unintentionally make some students less willing to share their experiences. Therefore, we'd like to conduct the student interviews without staff or counsel observing. This is consistent with our approach to student interviews in other OCR cases. I have included my contact information on the form and parents are more than welcome to call me directly with any questions about the process.
"We suggest that the school provide a space that is appropriate for the size of the group and one which will maintain confidentiality. In the past, we've conducted such interviews in the library, in an empty classroom or other space.
"By Monday, October 17th, we would like the District to send us a list of the names of the students whose parents have consented to their children's participation in the student interviews… We'll use the list to put the interview groups together. If the District would like to suggest some students who are talkative or at ease speaking with adults by appending a short paragraph to the list or designating certain students with asterisks, we'd welcome your input….
"We are hopeful that with two staff members, we'll be able to conduct our interviews efficiently and minimize the time that staff and students will be out of the classroom."
A total of 35 students were interviewed at Terman, in the six small groups, on Oct. 20, without district staff or lawyers present. No recordings were made.
According to a report made by Charles Young to Kevin Skelly on Oct. 21, 2011: "Parents were informed and were able to dismiss their children from the interviews if desired… The staff was unable to be present during the student interviews, but both our District Attorney and a CTA attorney were present with staff (during staff interviews)… The day was long but the attorneys felt like it shed only a positive light on the school and our support of students. Apparently, students shared with investigators how much they liked their school."
Since the Terman findings came out, the district has taken a different stance regarding OCR requests to interview students. The next time the issue came up was about four months later, in spring 2013, in a case involving bullying allegations of a student with disabilities at one of the elementary schools. OCR asked to conduct student interviews of fifth graders and the district resisted. This was not made public at the time.
A Daily Post story on July 19, 2013 broke this news (with headline "School officials to rebuff feds") based on interviews with board members Barb Mitchell and Dana Tom who told the Post that the district had "denied OCR's requests to interview elementary students" and that the OCR had backed down from its request. Mitchell and Tom said the district would no longer accept opt-out forms as sufficient parental consent, and instead would require a more affirmative consent form. They also advocated that student interviews be recorded.
According to a district statement made to the Weekly after the July Post story, the district did not "refuse" to allow OCR investigators to interview the students (as was implied by the Post story) but "rather asked a variety of questions concerning the nature of how the interviews would be handled. OCR then decided that the student interviews were not necessary and they were not held."
Later OCR determined there was insufficient evidence to support the complainant's allegations of bullying based on disability in that case.
Most recently, this spring, about a year after the OCR's student interview requests at the elementary school, the OCR again requested (in early April) student interviews, this time at Paly and Gunn, in connection with its investigations of alleged sexual harassment at both schools. The district's response advocated for: affirmative parental consent, audio recording of interviews, and the presence of a district employee and/or independent psychologist during the interviews. The letter also challenged the relevance of information students might provide, issues about sensitivity of the information sought, the suggested group interview format and other problems.
As a result, OCR's proposed interviews of students at Paly and Gunn have been put off; whether, when and how they may happen in the future remains to be seen.
Some have asked about whether the district requires parental consent prior to student interviews with school administrators, or the police, as part of a local school or police investigation. According to a district statement, in such instances, "considerations for obtaining written consent from parents prior to a conversation or recording a conversation are situational and depend on various factors."
Specifically with regard to police, the district's statement cited board policies (BP/AR 5145.11) related to "Questioning and Apprehension by Law Enforcement." These policies allow law enforcement officers to interview and question students on school premises and to remove them when appropriate. It requires the principal to document information about the situation (officer's name, badge number, capacity, reason for interview, start/stop time of interview, etc.) and says the principal or designee whenever practicable should be present during the interview as an observer unless the student or officer objects.
Under these circumstances, the school is also required to attempt to notify the student's parent/guardian "as soon as practicable" about the police contact with their child. If the student is removed from campus by the police, the policies require immediate notification of the student's parent/guardian.
Another frequent question is: What types of information might an OCR attorney want to ask students about? A brief review of three recent cases, two from California and one from Minnesota, might be useful in showing the types of student information relevant to OCR inquiries:
In a 2013 Contra Costa County school district case involving an OCR-initiated "compliance review" regarding sexual assault and harassment, the investigation included interviews with students, parents, administrators, teachers, counselors, etc.
According to the findings, the student interviews included high school, middle school and elementary school students, and provided information including:
--student descriptions of frequent non-consensual student-on-student sexual touching during passing, recess and lunch periods; students also reported inappropriate touching by school employees
--students calling each other names that were sexually derogatory, with such language used throughout the day, every day; this behavior sometimes included sexual threats
--students reported many rumors circulating regarding the sexual reputation of female students
--students said they did not report harassing incidents to school officials because they didn't understand the conduct experienced was sexual harassment, didn't know they had a right to complain, didn't believe that complaining would be effective in addressing the problem, believed that the behavior is normal or condoned, are "used to it" and/or don't want to be labeled a "snitch," be ostracized socially or suffer physical retaliation for reporting
--school staff commonly ignore sexually harassing language between students, or even directed at them, as it is so pervasive that it is impossible to respond to it all
--many teachers stay inside classrooms during lunch and between classes, so they are not always aware of what is going on, or available to supervise students
--students described the hostile environment created by sexual assault and harassment incidents on the broader school community as well as on the students directly subjected to the attacks, and the lack of school-wide initiatives to address these impacts
In a 2011 Tehachapi, California case involving harassment of a gay middle school student who died by suicide, OCR interviewed friends of the targeted student and also 75 of the student's classmates. The findings cite information from student interviews, including:
--students described the extent and types of bullying and harassment aimed at the gay student throughout his time of attendance at the school, including derogatory sexual comments and physical threats and assaults
--students described demeaning and mocking behavior outside the targeted student's presence, and also generalized gay slurs directly at individuals (or things) seen as undesirable, all of which resulted in an adverse impact on the school environment
--one of the student's friends said that she escorted the targeted student to the office on several occasions to seek help from school officials regarding the bullying; this contradicted what school officials told OCR, which was that the student had never reported his problems to them
--students reported that school employees ignored harassment of the gay student, even when they were around and aware of it
--many students reported that they believed steps taken by the school were not effective in stopping bullying/harassment, but were afraid to report bullying/harassment for fear of retaliation
In a 2012 case involving a Minnesota school district, Anoka-Hennepin, the OCR conducted a sexual harassment investigation that involved several visits to the district, interviews with 60 individuals including current and former students, parents, teachers and district staff, and review of more than 7,000 pages of documents provided by the district.
Prior to the completion of the investigation, the district settled the OCR case in combination with a separate related lawsuit, into one "Consent Decree." The OCR letter summarizing the settlement describes interviews with students as yielding information about how targeted students were constantly harassed because of their failure to conform to gender stereotypes. Students gave details and specifics of that harassment, including derogatory verbal comments and physical threats and assaults (one female student reported being told to "go kill herself"), and also described the impacts of that harassing behavior on those targeted students.
Below are excerpts from the OCR Case Processing Manual about student and other interviews during an OCR investigative phase:
Interviews are an integral part of most investigations. The objective of interviews is to gain an understanding of the records and data relevant to the issues in the case; to obtain information from and assess the credibility of witnesses; and to evaluate recipient defenses. OCR may conduct individual interviews or focus groups as part of its investigations.
Prior to initiating an interview, OCR should inform the witness of the following:
(i) The general purpose of the interview, including OCR's role, what law or laws may be pertinent to the investigation, and where appropriate, a brief explanation of what is under investigation.
(ii) The potential uses of the information to be obtained from the witness and the Freedom of Information Act. A witness who wants a more thorough explanation should be given a copy of the OCR Notice about Investigatory Uses of Personal Information.
(iii) The witness's right to personal representation during the interview by a person of their choice.
(iv) If the witness is an employee of a recipient, his or her right to refuse to have anyone else present during the interview and his or her right to refuse to reveal the content of an interview.
(v) The regulatory provisions concerning prohibition of intimidating or retaliatory acts by a recipient.
(vi) In most cases, the recipient's counsel will be allowed to be present during upper level management interviews.
Interview witnesses under circumstances that assure privacy. An interpreter may be used if safeguards are taken to ensure the competence of the interpreter and to protect the witness's privacy.
4. Interviews with Minors (Persons Under 18) or Legally Incompetent Individuals
OCR shall obtain written consent from a parent or guardian prior to interviewing any person under 18 years of age or otherwise adjudicated legally incompetent, for example, mentally impaired. Parental or legal guardian consent may not be required for persons under 18 if they are emancipated under state law and are therefore considered to have obtained majority. For persons under 18 who state they are emancipated, OCR should obtain proof of emancipation. Parental or legal guardian consent (or proof of emancipation) may not be necessary when the questions asked are of a general nature, not related to any specific events in which the minor was involved, and there are no records kept to identify the student. If a recipient refuses to allow minor students to be interviewed without consent even in the above circumstance, written consent must be obtained. If parents or guardians refuse to provide consent for an interview, and OCR determines that the child's information is critical, OCR may attempt to secure parental or guardian consent by inviting the parent or guardian to be present during the interview. If consent is denied, OCR will not interview the child.
5. Records of Interviews
A written record of both telephone and in-person interviews must be kept. Interviewers will notify interviewees if a tape recording is used and tape recording will be done only with the consent of the interviewee. If interviewers use tape recording, the tape becomes part of the case record along with the written record. Regardless of the technique used during the interview, a written record of the interview must be created.
The record of the interview to be placed in the case file must contain the following information:
(i) case identification (name and case number);
(ii) name and identification of the interviewee, interviewer, and any other person present (include an explanation for the presence of any other persons);
(iii) date, time, and location of interview (including whether the interview was conducted by telephone);
(iv) a record of whether the interviewee was informed of required notifications; and
(v) written record reflecting the questions and responses obtained during the interview (this need not be a verbatim transcript but must accurately reflect the responses of the witness).
(e) Limitations on Obtaining Information
1. Actions Constituting Denial of Access
A recipient denies access to OCR when it:
(i) refuses to permit OCR access to written or unwritten information, such as electronic storage media, microfilm, retrieval systems, photocopies, etc., or to recipient's facilities during the recipient's normal business hours;
(ii) refuses to permit OCR access to employees during recipient's regular business hours;
(iii) fails to provide information by virtue of the refusal of one of its employees to do so or to provide access to information maintained exclusively by an employee in his/her official capacity; or
(iv) refuses to complete applicable OMB-approved compliance and survey forms relevant to an investigation.
2. Refusals to Provide Data or Access to Witnesses
(i) If the refusal is stated orally, either in person or over the telephone, the investigator should attempt to ascertain the exact basis for the recipient's refusal, and attempt to explain OCR's authority or provide other information to address the recipient's concerns.
(ii) If the investigator is unable to obtain access to the requested information, the investigator will consult with OCR legal staff (when on-site, this should be done over the telephone whenever possible before the investigator leaves the recipient's premises). Where appropriate, OCR legal staff should discuss the refusal to provide information directly with the recipient's representative.
(iii) Where attempts to persuade a recipient to provide information have failed, a letter should be prepared setting forth OCR's authority to obtain access to the information and addressing any particular concerns expressed by the recipient.
(iv) Whenever the office determines that compliance cannot be achieved, the office shall recommend that the case be referred for enforcement.
Issue #2: School District's FOIA Requests
Among the issues raised in the school board's proposed resolution is the OCR's denial of the district's FOIA requests, and the subsequent lack of response to the district's appeals of those FOIA request denials.
The original FOIA requests were made to the OCR regional office in San Francisco, and the denials of those requests also came from that office. Appeals of denials go to a different place; the regulations require appeals to be made directly to the U.S. Department of Education's Office of Management Appeals Office in Washington, D.C.
According to school district documents made public, some of which are still in redacted form only, there appear to be at least three separate FOIA requests involving three different cases. Two were discussed in the board's June 3 meeting packet. All involve different facts but the same basic procedure.
In the Terman case, Laurie Reynolds, one of the district's lawyers, filed a FOIA request with OCR's regional office on June 14, 2013, for release of all the files and records in that case.
In a letter dated July 12, 2013, OCR Regional Director Art Zeidman denied the request, citing FOIA exemption (b)(7)(A) which applies to "any records in open cases when release could reasonably be expected to interfere with the ongoing activities of the case."
According to Zeidman's letter: "OCR has determined that release of the requested information, at this time, could reasonably be expected to hinder the ongoing activities in the case; therefore I am denying your request."
Zeidman's denial relates to the fact that the Terman case is still considered an "open" case because the terms of the Resolution Agreement have not yet been completed. Once this occurs, and once the OCR signs off on its monitoring responsibilities under the agreement, the OCR will close the case. The exact timing of this is up to OCR, but at the very least it won't happen until all the terms are completed, which could take another school year.
The Resolution Agreement, signed by Superintendent Skelly, grants broad monitoring power to the OCR. It states:
"The District understands that OCR will not close the monitoring of this agreement until OCR determines that the District has fulfilled the terms of this agreement in compliance with [the federal laws which were at issue in this case….
"Further, the District understands that during the monitoring of this agreement, if necessary, OCR may visit the District, interview staff and students, and request such additional reports or data as are necessary for OCR to determine whether the District has fulfilled the terms of this agreement and is in compliance with (applicable federal laws.)"
On August 14, 2013, another district lawyer, Lenore Silverman, filed an appeal of the OCR denial of the FOIA request in this case to the U.S. Department of Education's Office of Management Appeals Office in Washington, D.C. per the FOIA process regulations. Silverman disagreed with Zeidman's determination, and argued that the records should be released (her letter was included in the recent June 3 board packet, at p. 138.)
According to Chad Graff, another district lawyer who appeared at the June 3 board meeting, the district has not heard back regarding its appeals, despite the fact that appeals are supposed to be responded to within 20-30 days. The non-responsive agency in this case is the U.S. Department of Education's Office of Management Appeals Office in Washington, D.C.
The district has had subsequent correspondence with the Office of Management in emails dated Oct. 17, 2013 (not included with the June 3 memo to the school board); those documents are still only available in redacted form. There have also been a number of other emails back and forth between the school district and the OCR's regional office, also redacted, since that time.
For example, in one Jan. 2014 Board-Cabinet emails document file released by the district on April 1, the documents in redacted form (showing only date, recipients and author) include:
--Two emails (with attachments) dated Oct. 17, 2013, from Lenore Silverman to the U.S. Department of Education's Office of Management Appeals Office in Washington, D.C. (see pp. 3, 12)
--Email dated Dec. 2, 2013, from OCR's regional director Art Zeidman to Kevin Skelly (see p. 46); this appears to be attached to a redacted memo to the school board from lawyer Chad Graff dated Dec. 26, 2012 (see p. 44) and related to the reasons for the Jan. 14, 2014 meeting of district representatives with OCR attorneys; this January meeting was referred to in the June 3 school board meeting packet memo, along with the Feb. 19, 2014 letter released in full in the June board packet (previously released only in redacted form) from Skelly to OCR dated Feb. 19, 2014, summarizing the Jan. 14 meeting
--Email dated Jan. 17, 2014, from OCR attorney Zachary Pelchat to district lawyer Graff (see p. 42)
There are a number of other redacted emails between OCR and the district, also posted on the district's website among the Board-Cabinet emails released for other months. It is difficult to know, given these redacted emails, the full extent of what has been communicated with OCR, and how that might affect public discussion or decisions.
Still, the question remains: Why has the U.S. Department of Education's Office of Management delayed its response to the district's FOIA request appeals, as described by Graff at the June 3 board meeting? It's impossible to know for certain what the answer is, but the district's experience with these appeals is not inconsistent with the experience of the general public when dealing with FOIA. It is well understood among journalists, for example, that there often are long backlogs with large federal agencies when it comes to FOIA requests and appeals.
The Reporter's Committee for Freedom of the Press advises on its website that in these instances, the requester may want to consider a lawsuit:
"If your appeal is denied, or if the agency fails to respond to your appeal within 20 working days, you may file a FOIA lawsuit in the United States District Court most convenient to you, nearest the agency office where the records are kept or in the District of Columbia. Though technically you have up to six years after the date on which your appeal was denied to file a lawsuit, you should try to file the suit as soon as possible in order to demonstrate to the court your need for the information."
This is along the lines of what the OCR's regional office attorneys told Graff apparently, as recounted by Graff at the recent board June 3 meeting.
Delays by public agencies are also commonplace with California's own version of FOIA, the California Public Records Act.
Below is an excerpt from Section 603 of the OCR's Case Processing Manual, which includes a brief discussion of some FOIA procedures and exemptions:
"FOIA gives the public a right of access to records of federal agencies. The FOIA is implemented by Department regulations. (34 C.F.R. Part 5). Any requests for copies of documents or other access to information contained in OCR's files should be referred to the Enforcement Office staff responsible for handling FOIA and Privacy Act requests. Although each request will be reviewed on a case-by-case basis, generally, OCR is not required to release documents during the case resolution and investigation process or enforcement proceedings if the release could reasonably be expected to interfere with OCR's law enforcement activities. See 5 U.S.C. §552(b)(7)(A). Also, a federal agency is not required to release records if they are pre-decisional documents that would be subject to certain privileges in litigation. See 5 U.S.C. § 552(b)(5). Finally, a federal agency is not required to release documents if their release would or could reasonably be expected to result in an unwarranted invasion of privacy of an individual. See 5 U.S.C. §§ 552(b)(6) and (7)(C). OCR will not reveal the name or other identifying information about an individual (including individuals who file complaints or speak to OCR) unless (1) such information would assist in the completion of an investigation or in enforcement activities against an institution that violates the laws; (2) such information is required to be disclosed under the FOIA or the Privacy Act or otherwise by law; or (3) such information is permitted to be disclosed under both FOIA and the Privacy Act and OCR determines disclosure would further an interest of the Department and the United States.
"However, OCR can release certain information about your complaint to the press or general public, including the name of the school or institution; the date your complaint was filed; the type of discrimination included in your complaint; the date your complaint was resolved, dismissed or closed; the basic reasons for OCR's decision; or other related information. Any information OCR releases to the press or general public will not include your name or the name of the person on whose behalf you filed the complaint except as noted in the paragraph above."
Issue #3: OCR's Notification to District about Terman Findings
The June 3, 2014 memo to the school board from Barb Mitchell, Melissa Baten Caswell and Kevin Skelly (in support of their proposed resolution regarding OCR) says that on Dec. 26, 2012, "two weeks after a good faith voluntary agreement was reached" in the Terman case, the OCR issued an "unexpected report concluding that the District had violated anti-discrimination laws in failing to respond appropriately and effectively" to disability-based harassment of a disabled middle school student.
"The finding was a startling contradiction of extensive and well-documented staff actions in which civil rights laws were followed," the memo states.
Also included in the board packet is a May 20, 2013, letter that Skelly sent to OCR, summarizing a list of concerns the district has with OCR's practices, including a paragraph on the topic of when and how the district learned about the OCR findings.
Skelly's letter says that "OCR is not complying with stated protections of the District in OCR's process," questioning OCR's statement that its investigative attorneys had reviewed with district counsel, consistent with standard practice, "each of their anticipated findings" in a telephone conversation prior to the issuance of the written findings.
Skelly's letter says that the district's legal counsel has no record of such a conversation with OCR's attorneys that "included detailed review or discussion of OCR's anticipated findings." Skelly's letter also refers to the fact that "one telephone conversation in early April 2012" occurred but says it "did not include a discussion of the findings in detail, nor was it followed up in writing. Rather, it included general statements, and a statement that the Resolution Agreement would be forthcoming."
According to Skelly's letter, OCR's standard practice is to have a conversation with a school district representative about its investigative findings prior to the issuance of the written findings. This does not appear to be expressly covered as a topic in the OCR Case Processing Manual (see excerpts below), although it may be a standard practice.
According to the OCR manual, the basic procedure is: At the conclusion of an investigation (in Terman's case this was early April 2012, according to public record documents), if OCR determines that the evidence is sufficient to support a conclusion of noncompliance, "OCR will contact the recipient and will attempt to secure the recipient's willingness to negotiate a resolution agreement." (Note: No resolution agreement is needed if the OCR determines there is insufficient evidence.) If the recipient is willing, that negotiation process goes forward. Once the agreement is finalized, the letter of finding is issued. Per the manual: "If the resolution agreement is signed, a letter of finding(s) will be sent to the parties." If the recipient is unwilling to negotiate a resolution agreement, that triggers a different process (in that case, a letter of finding may be issued without the agreement, and the matter may be referred for enforcement action).
In the Terman case, the progression of steps that occurred appears to be consistent with what is laid out in OCR's manual. It also appears, based on public records and as reported in the Weekly on June 14, 2013, that the district had information from OCR in April 2012 regarding the substance of the investigative findings. The level of detail is difficult to pinpoint. The documents available include:
--In a memo to the school board dated April 9, Young stated that the district "received the Office for Civil Rights' results over spring break. As a result of the student's disability, we are responsible for corrective action related to discrimination and creating a hostile learning environment. Our attorney is working with the Office for Civil Rights regarding the corrective actions, which are quite lengthy.
"Holly Wade and I will be meeting with Katherine Baker tomorrow to discuss the findings, our response and plan moving forward. Part of the plan will include an IEP team meeting to discuss the findings, the development of a plan for training staff and notifying parents. Once the corrective actions are finalized, I will share them with you so you are aware of the areas we will be addressing.
"The staff at Terman will be disappointed as they felt they did a great deal of good work to ameliorate the concerns outlined in the parent's initial complaint."
--According to legal bills provided to the Weekly by the district, district lawyer Laurie Reynolds spent 1.6 hours on April 6 teleconferencing with OCR and researching discrimination issues, and 0.30 hours on April 9 teleconferencing about "OCR draft findings" and resolution agreement. On April 30, she billed three hours for time reviewing the draft resolution agreement, traveling to and from the district office, conferencing about the OCR resolution agreement, and teleconferencing with OCR.
Based on the documents available to the public, the district's complaint to OCR regarding how and when the district was informed about the findings appears to have been raised for the first time in Skelly's May 20, 2013 letter (described above and included in the June 3 board meeting packet). This same May 20 letter was previously released but in redacted form in response to a Weekly public records request.
According to the OCR manual, districts can choose to avoid a letter of finding if they are willing to enter into a voluntary resolution agreement at any time before the conclusion of an investigation. As the June 2013 Weekly story linked above reported:
"Also unclear is why the district did not act to avoid the negative 'letter of finding' by opting to resolve the case earlier with the Office for Civil Rights. Toughing it out to this late stage in the proceedings is a rare event….
"The vast majority of districts choose instead to reach agreement prior to the close of investigation, thus avoiding the letter of finding and additional political and legal exposure from damaging information the letter might contain. Why the district did not do that in this case, as it did in two other Office for Civil Rights cases it resolved in 2012…remains an unanswered question….
"In a May 6 email, at the request of an unnamed board member, Skelly confirmed (the availability of this earlier voluntary resolution option) in a report he made to the school board on his conversation with Office for Civil Rights Acting Chief Attorney Gayle Sakowski.
"'Districts can offer to resolve issues and OCR complaints at any time after the case is open. This process is open and if the district wants to resolve present cases they should contact the person handling the complaint. If district does not think it is at fault that's a decision they can make in terms of the process,' Skelly wrote.
"If the district does not think it is at fault, in other words, it can take the gamble that the Office for Civil Rights letter of finding will be in its favor. It appears this may have been the motivation for waiting it out in this case, although the basis for that decision is likely to remain confidential due to the attorney-client privilege afforded communications between Skelly and Reynolds."
Below are excerpts from Section 303 of the OCR Case Processing Manual regarding Letters of Finding:
"When OCR determines that a preponderance of the evidence supports a conclusion that the recipient failed to comply with applicable regulations, OCR will prepare a statement of the case (including a proposed resolution agreement), which the Chief Attorney or designee must approve. The statement of the case must set out the issues investigated; OCR's basis for entering into a resolution agreement; and an explanation of how the terms of the agreement are aligned with the issues investigated and are consistent with applicable regulations. The provisions of the resolution agreement will be aligned with the identified violation(s) and will be consistent with applicable regulations.
"The Office Director, in consultation with the Enforcement Director, must approve the initiation of negotiations and the proposed resolution agreement. Upon approval, OCR will contact the recipient and will attempt to secure the recipient's willingness to negotiate a resolution agreement. From the date that the proposed terms of the resolution agreement are shared with the recipient, OCR and the recipient will have a period of up to 90 calendar days within which to reach final agreement. The enforcement office may end the negotiations period before the 90 days have expired when it is clear that agreement will not be reached. If the resolution agreement is signed, a letter of finding(s) will be sent to the parties. …
"Under Section 303(b), the letter of finding(s) to the parties must include:
1. a statement of the issues raised by the complaint;
2. a statement of OCR's jurisdiction over the complaint;
3. a clear explanation of the pertinent legal standard and factual analysis;
4. If negotiations have resulted in an agreement, a statement that, when fully implemented, the resolution agreement will address all of OCR's compliance concerns. The letter will include a copy of the agreement; and
5. If negotiations have not resulted in an agreement, a description of OCR's unsuccessful attempts to resolve the complaint.
"The case file will include an index of documents in the file and a key referencing by tab of the evidence relied upon in making the determination.
"All letters of finding(s) must be approved by the Chief Attorney or designee and the Office Director or designee…."
Issue #4: District's Appeal Regarding Alleged Errors in Terman Case Findings
At its recent June 3 meeting, school board members, the superintendent and the district's lawyer expressed support for the proposed board resolution stating that OCR has not responded promptly or appropriately to their appeal to OCR for a "just review and remedy of substantial errors" they believe are contained in the OCR's Letter of Findings in the Terman bullying case.
The memo to the board from Barb Mitchell, Melissa Baten Caswell and Kevin Skelly supporting the proposed board resolution states that "investigation errors (in the Terman case) were reported to OCR on May 15, 2013, more than a year ago, after which an OCR supervising attorney expressed willingness to review inconsistencies. The errors were again reported to OCR on Jan. 14, 2014, after which the OCR Regional Director expressed willingness to review District concerns regarding the case. To date, OCR has not responded except to deny District access to the investigation records that would help to resolve the matter."
(Regarding the issue of the district's appeal of the denial of its FOIA request for access to the Terman investigation records, see previous above post on that topic, and also "Additional Note" at the end of this post.)
Skelly details the alleged OCR errors in a four-page letter dated Feb. 19, 2014, included in the June 3 board meeting packet (see p. 145). The letter concludes: "Essentially, in several places the Letter of Findings omits discussion of District efforts in addressing the student situation and creates negative implications from information that appears out-of-context to the District and/or that was not available for District review or response. The District's perception is that the investigating attorneys may have misinterpreted some circumstances reviewed and that the Letter of Findings creates some misleading impressions…. Certainly, the District staff intended to work carefully to prevent any bullying or harassment of the student and to provide the student an appropriate program at all times."
An earlier letter from Skelly to OCR dated May 20, 2013, also included in the June 3 board meeting packet, states: "It is unclear what right of appeal the District has to OCR's determinations. Ms. Sakowski (an OCR attorney) stated that OCR would be willing to review inconsistencies and unsupported determinations that the District found in (this matter). This was the first the District learned of the right to request reconsideration in this matter. The District would appreciate knowing what its appeal rights are for OCR investigations and determinations."
A review of section 306 of OCR's Case Processing Manual shows that only the complainant is provided with a route to appeal an OCR determination, and only for certain specific stated reasons with supporting documentation:
"The appeal process provides an opportunity for complainants to bring information to OCR's attention that would change OCR's decision. The appeal process will not be a de novo review of OCR's decision.
"The complainant may send a written appeal to the Director of the Enforcement Office (Office Director) that issued the determination. If the complainant has documentation to support the appeal, the documentation must be submitted with the complainant's appeal. In an appeal, the complainant must explain why he or she believes the factual information was incomplete, the analysis of the facts was incorrect, and/or the appropriate legal standard was not applied, and how this would change OCR's determination in the case. Failure to do so may result in the denial of the appeal."
Also, a complainant's appeal must be made within 60 days of the decision:
"In order to be timely, an appeal (including any supporting documentation) must be submitted within 60 days of the date of the determination letter. The Office Director may exercise discretion in granting a waiver of the 60-day timeframe where:
1. the complainant was unable to submit the appeal within the 60-day timeframe because of illness or other incapacitating circumstances and the appeal was filed within 30 days after the period of illness or incapacitation ended; or
2. unique circumstances generated by agency action have adversely affected the complainant."
Also, there is no timeline for the OCR to respond to a complainant's appeal:
"A written response to an appeal will be issued as promptly as possible. The decision of the Office Director constitutes the agency's final decision."
One reason school districts are not provided an appeal route similar to complainants is that when OCR makes a determination of noncompliance, the next step is a negotiated resolution agreement with the school district that is intended to settle the matter. (OCR does not enter into agreements with complainants.) This is a voluntary step on the part of a district, although if a district refuses, it could lead to an enforcement action in court. The clear incentive under these circumstances is for a district to agree to negotiate a settlement, as happened in the Terman case and in most cases nationwide that reach this point in the process (most reach negotiated settlements earlier in the process, before the conclusion of the investigation and the findings that come from that, per an earlier post above).
In signing a resolution agreement on Dec. 14, 2012, Skelly agreed on behalf of the district to corrective actions based on the OCR's investigative finding of noncompliance, which the district was informed about in April 2012 prior to negotiation of the agreement (see earlier post above on this topic). The district reached this settlement voluntarily, and "without admitting to any violation of law," as the agreement states.
According to district documents provided, after the Letter of Findings was issued (subsequent to the signing of the resolution agreement, per OCR procedures), no concerns were raised with OCR about possible alleged factual errors until about five months later (the findings letter was dated Dec. 26, 2012, and the district first reported concerns on May 15, 2013, according to the June 3 memo in the board meeting packet).
During the months before May 15, 2013, once the Letter of Findings was disclosed to the board and the public in early February as a result of the family releasing the report to the Weekly, the district's lawyer and other school officials characterized the process with OCR in positive terms, said they had learned a lot from it, and were making positive improvements as a result.
Examples of district comments included:
--Skelly's Feb. 2013 press statement: "We are profoundly sorry that a student was subject to bullying at our school… We worked closely with the Office of Civil Rights to design activities and policies that will help us improve the environment for our students."
--Holly Wade, director of special education, in a Weekly interview: "We see this as an opportunity to do some training, to look at some of our practices, to make sure they are very transparent in terms of how kids can seek help, what information we seek from students when they report an incident of bullying, and make sure all our administrative teams and teachers are well-trained in how to support kids when they are faced with situations where they don't feel safe…I mean it really is an opportunity for us, to press 'pause' with OCR's guidance, and give some really good training and provide support to our staff and students."
--In an email labeled "OCR Follow Up" from Katherine Baker, then-principal at Terman, to Skelly, dated March 19, 2013, Baker said that she and her staff had reviewed the OCR findings and resolution agreement, and that the teachers "have taken this case very much to heart." She said: "We have all been reflecting on what we could have done differently, or what we missed." She reported they had "learned many things from this experience," and "will institute changes." Lessons learned, as outlined in her email, included: "We need to have one go-to person for harassment cases"; "We must do a better job of documenting the steps we take in our investigations, including how we inform each other of the progress"; "We must be very proactive when investigating bullying/harassment incidents, and we need to determine if the harassment is against a student with protected status"; "It also means that we continue our practice of interviewing bystanders, not just the perpetrator and the victim, and we need to continue to monitor the situation with consistent follow up"; "We have learned that the harassment does not need to occur over time by the same perpetrators. It can be a single incident or occur at different times by different individuals"; "It is necessary to make every attempt to determine if a hostile environment has been created for the victim, and it is necessary that we stop the harassment"; "In the future we must be proactive about checking in with the victim and bystanders rather than asking them to report back to us if anything further happens."
District officials, back then, did not raise issues about substantial errors in the findings they were discussing.
Because of the secrecy surrounding these matters over the past year-plus, and even now with the district's recent release in the June 3 board packet of selected communications between the district and OCR that were previously redacted, it is difficult for the public to fully evaluate the nature of these disputes between the district and OCR.
It does seem apparent that whatever willingness OCR attorneys have expressed to review the record in the Terman case, in light of what the district has told them about alleged errors, it is outside what is required under OCR's rules. Whether that review has been made yet, when OCR will choose to communicate about it further with the district, and whether any errors will be found, remains to be seen.
Additional Note: The school district is seeking release of the investigative records and files in the Terman case, by way of requests it initiated about a year ago under the Freedom of Information Act (FOIA), as noted in an earlier post on the FOIA topic. These requests were denied by OCR's regional office last summer, and are currently stalled in an appeal process with the U.S. Department of Education's Office of Management Appeals Office in Washington, D.C.
As an addendum to the earlier FOIA post, and as it intersects with the topic of this post, some additional information from the district's April 23, 2014, letter to OCR's regional director from district lawyer Chad Graff (included in the June 3 board meeting packet, at p. 149) might be helpful. Graff's letter to OCR states:
"The District wrote on Oct. 17, 2013, to inquire about the status of its appeal and contacted you and/or other regional officials on January 14, January 22, March 12, and March 29, 2014, about the status of the appeal for the investigation records. Despite your and other commitments to follow up on the District's request, the District has never received a response. On April 7, 2014, we received an email from the FOIA Appeals Coordinator asking if we 'wish to pursue your FOIA appeal dated August 14, 2013.' On April 8, we responded affirmatively and described the long history of District communications indicating the intent to pursue the appeal. To date, we have not received a response. Per your suggestion, the District Superintendent wrote to you on February 19, 2014, to express the District's concerns on the investigation process and Letter of Findings in (the Terman case) as much as possible without the District having been able to review the investigation records. The District has not yet received a response to that letter."
As noted in the previous post, the district's Oct. 17 emails to the Office of Management Appeals Office have been fully redacted in response to public records requests, as have other communications between the district and OCR.