Palo Alto school district officials had the perfect opportunity last fall to demonstrate they had learned from their past mistakes and, after trainings mandated by its 2012 agreement with the U.S. Department of Education's Office for Civil Rights, were well-prepared for the next, inevitable complaint involving sexual harassment or discrimination.
Last September, the concerned parents of a recently graduated 18-year old Palo Alto High School student reported that their daughter and one of her teachers had commenced a sexual relationship right after graduation, and they wanted the school to be aware and take steps to prevent it from happening in the future to anyone else.
It was an especially important time for the district to respond carefully because the district was, and still is, under investigation by the OCR to determine if it responded appropriately to previous incidents at both Paly and Gunn involving potential sexual harassment.
It was also a great chance for then-new Superintendent Max McGee to model how such issues would be handled differently under his administration, with strict adherence to the district's policies, especially the legally mandated and recently updated Uniform Complaint Procedures (UCP), which spell out exactly how reports of possible sexual harassment should be investigated.
Instead, as this week's story in the Weekly outlines, the district not only failed to follow those policies but over the course of a year involved two of its law firms in uncoordinated and siloed work that ultimately led them to different legal conclusions and left the district with bills in excess of $50,000.
As soon as the parents met with Paly Principal Kim Diorio and shared their information, district policies (and both state and federal law) required that a UCP investigation be conducted and completed within 60 days. Among other requirements, the investigator is to be impartial, conduct interviews and gather evidence, make a determination on the credibility of witnesses, make findings of fact and arrive at a conclusion as to what steps need to be taken to correct any problems with the school's response or school climate through trainings or new policies. A written report must be shared with the complainant.
Instead of following these steps, the school district decided to treat the issue as a personnel matter and turned it over to the human resources department to investigate. After interviewing the parents and the teacher, but not the girl, no report was written and the matter was eventually dropped because of conflicting witness statements.
Then five months later, around the time the former boyfriend of the girl came forward and challenged the adequacy of the investigation that had been done, the district decided to ask the same law firm that is defending the district in the OCR cases to conduct a UCP/Title IX investigation into the allegations and whether the district had responded properly.
The Fagen, Friedman & Fulfrost firm concluded that it was more likely than not that no sexual relationship or harassment occurred between the teacher and student and that the district had fully complied with its responsibilities under the law.
Meanwhile the district's other primary law firm, Lozano Smith, which was not made aware of the Fagen Friedman investigation until after it was completed, came to the opposite conclusion -- that it was more likely than not that the allegations were true and that teacher had "exploited" his position of power "to establish the basis for a sexual/romantic relationship with a former student."
Within a six-week period last summer, the teacher was informed by one district law firm that he had been exonerated and by another law firm that he had engaged in unprofessional conduct and could be terminated if the behavior recurs, both firms using the same standard of proof called "preponderance of the evidence."
It is especially disturbing that the Fagen report criticized Paly Principal Diorio for urging her superiors to place the teacher on paid administrative leave during the initial investigation, calling leave a "very serious consequence" that was "ultimately not warranted." In fact, Diorio may be the only district employee who showed the appropriate concern and correctly advocated for an independent investigation.
Sadly, the district has shown it still does not have its house in order on how to respond to serious complaints in spite of extensive trainings of teachers and administrators. If nothing else, this latest mess clearly demonstrates why the district badly needs a high quality in-house general counsel to quarterback compliance matters and manage the work of outside lawyers.
We hope McGee and the Board of Education will move quickly to fill this position and insist that all harassment or discrimination complaints be immediately turned over to that person for proper handling under district policies.
Students, parents, teachers and the public all deserve better.