The Palo Alto school board gave the green light to Superintendent Max McGee on Tuesday night to take a first step toward potential resolution of two separate federal sexual-harassment investigations at the district's high schools by authorizing him to invite the U.S. Department of Education's Office for Civil Rights (OCR) to the district for a conversation.
The board voted 4-0, with President Melissa Baten Caswell abstaining due to the late hour of the vote, to authorize McGee to speak with leadership from the federal agency to "discuss the district's strengths and identify areas of improvement so we can ascertain precisely what they would like to see in order to have full confidence that we have been proactive in upholding and honoring students' civil rights and are aligned with OCR's mission," McGee wrote in a staff report that recommended the new approach, which he described Tuesday as "proactive" and "collaborative."
School districts can seek resolution agreements prior to the conclusion of an OCR investigation by entering into negotiations with the federal agency. An attractive benefit to resolution agreements, district staff noted Tuesday, is that they help the district avoid being issued an official letter of findings that identifies where a district or school is out of compliance.
"I think that findings have proved to be a challenge for us in the past in the sense that they can be damaging," particularly to the many school staff members involved in an investigation, Chief Student Services Officer Holly Wade told the board. "To the extent possible we'd like to protect those peoples' position in the sense that they've been involved in multi-year(s) of waiting and investigation. ... I think that we would like to move forward."
Tuesday's vote came after a motion from board member Ken Dauber to waive the board's two-meeting requirement in order to do as McGee proposed and move the district forward as quickly as possible on these two cases, which were opened more than a year ago and remain pending.
In June 2013, the OCR opened its investigation at Paly to look into whether the school responded properly when allegations of student sexual harassment or assault were reported. The case was opened shortly after a series of articles were published in student magazine Verde describing a "rape culture" on campus and how up to nine student who had been sexually assaulted had then been "harassed verbally on social media after the assaults" by other students. It also coincided with the resignation of then-Paly principal Phil Winston, who at the time was under investigation by school district officials for multiple allegations of sexual harassment and inappropriate behavior involving both staff and students.
The next year, in March, the OCR opened a new investigation at Gunn in response to a family's complaint that the school failed to "appropriately and effectively respond to notice of sexual harassment at the school."
Jan Tomsky, managing partner of Fagen Friedman & Fulfrost, one of the district's primary law firms, explained to the board via speaker phone on Tuesday night that although there is uncertainty about where exactly OCR is at in its current investigations of Paly and Gunn, the further along the agency gets into an investigation, the more likely it is that the OCR will want to include a monitoring agreement in a resolution, if that's the course the district takes.
An OCR Case Processing Manual notes that resolution agreements require "effective and vigorous case monitoring." Some board members peppered Tomsky with questions about conditions of monitoring and how long monitoring can last.
Monitoring agreements can include obligations to send OCR documents, updates on efforts like creating new policy or implementing extra staff training, as well as to allow site visits and interviews all conditions that Tomsky said can be negotiated. Tomsky said in her experience, monitoring agreements have lasted for about six months.
Tomsky told the board that there is no downside to seeking a conversation with the OCR.
"I think to the contrary, it suggests a desire to reach a resolution, put an end (to the cases) and move forward and confidence that we're happy to engage in this process with you," she said.
She described it as talking about "where are we and how can we end it?"
"We need to be collaborative," McGee said. "We need to be positive. We need to be proactive rather than reacting and rather than waiting."
Members of the board have also consistently described the OCR as unresponsive, frequently not even returning the district's phone calls, and have expressed frustration about what feels like drawn-out investigations with no closure in sight.
Board member Camille Townsend noted that the federal agency has a large backlog of cases across the country, asking, "in the big picture, are we better off to wait and see what happens?"
"What are we doing in the process when we say what are we waiting to see what happens ... have we taken steps since the investigations?" she continued. "Are we giving all this information to OCR in the process? Why do we have to wait for anybody? Have we sent them tons of things that we've done? Are they asking? Are they interested?"
Wade said the district does send updates to the OCR on any related efforts going on in the district professional development, additional training, curriculum for students as well as any documents the agency requests. Wade also recently requested and received direct technical assistance from the Office for Civil Rights to review and reform the district's Uniform Complaint Procedures (UCP), Palo Alto's process for investigating and resolving reports and complaints of sexual harassment (as well as other forms of discriminatory harassment based on race, disability, gender identity, etc.).
Townsend also initially opposed Dauber's motion to waive the board's two-meeting rule to take action last night. She said she was concerned about the lack of transparency around a vote taken late at night without members of the public present to give comment.
"If you're going to back me into a corner ... I'll say yeah, (McGee) can call (OCR), but I think this is the wrong way to do it," she said.
Dauber responded, saying, "To miss an opportunity to have a productive conversation because we want to wait another couple of weeks I think that there's just no benefit and (a) potential cost."
McGee said he will return with an update at the next board meeting.
The OCR investigations at Paly and Gunn followed several others in the district around allegations of discrimination and bullying. Two of those cases resulted in resolution agreements. One that involved the district's mishandling of the ongoing bullying of a disabled middle school student ended in a December 2012 resolution in which the district agreed to rewrite its policies and procedures on bullying.