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Palo Alto superintendent to engage in talks with Office for Civil Rights

School district takes new tack on pending civil rights investigations

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.

Editor's note: This story incorrectly stated the dates that the Office for Civil Rights opened its investigations at Palo Alto and Gunn high schools. They were opened in June 2013 and March 2014, respectively.

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23 people like this
Posted by Rajiv Bhateja
a resident of Los Altos Hills
on Oct 28, 2015 at 10:52 am

Good move by the School Board, finally bringing sanity to this issue. Thanks to Ken Dauber and Dr. McGee for their leadership on this issue.

7 people like this
Posted by John
a resident of Barron Park
on Oct 28, 2015 at 11:00 am

"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."

It's not clear to me why this is an advantage to anyone in the District except those charged with misconduct.

28 people like this
Posted by Comment
a resident of Another Palo Alto neighborhood
on Oct 28, 2015 at 11:00 am

"Members of the board have also consistently described the OCR as unresponsive, frequently not even returning the district's phone calls,"

Wow, isn't that the proverbial (much more handsomely paid with fewer responsibilities) pot calling the kettle black?

If we were talking about district responsiveness to families by comparison, the district would fare so much worse. This is one of the worst hypocrisies ever. I wish they had put a fraction of the effort and resources they put into complaining about the OCR, into improving responsiveness to families.

The only way to move on when you have experienced calculating and repeated retaliation by district personnel that has harmed a child, is for that person's supervisor to take an interest in getting to the bottom of it, and getting any person who capable of behaving that way when children are involved into a different line of work (attractive as they may be to "work" with).

2 people like this
Posted by Barron Park dad
a resident of Barron Park
on Oct 28, 2015 at 11:16 am

To "Comment" in the prior post -

[Portion removed.] You wrote: "calculating and repeated retaliation by district personnel that has harmed a child"

Can you say more? If true, don't you want to provide some hard evidence so that these behavior STOP rather than having it fostered upon other kids in the community?

[Portion removed.]

Tell us more.

27 people like this
Posted by Comment
a resident of Another Palo Alto neighborhood
on Oct 28, 2015 at 11:57 am

@Barron Park Dad,
Another parent who has experience the same said this recently, and it speaks for us, too. The parent said they used to at least be comforted in the knowledge that all the effort and grief they put up with was at least helping other kids, but realized at some point that it wasn't, it wasn't changing the problems in the district office/culture, so what they were going through never was really helping anyone else. At some point you have to do what it takes to protect your child and your emotional health, even if it means accepting that you can't right a serious wrong.

I don't know if you have ever been in an organization where there has been one or two people who are just extremely charming, untrustworthy, and massively self-interested. They set off discord and damage wherever they go, and always come out smelling clean. In my own observation in life, either the person goes, or the organization eventually tanks, which is usually what happens. (Amid lots of finger pointing and accusations, and the person who is really responsible still comes out smelling clean.)

I can only repeat the last sentence of my above post.

13 people like this
Posted by outsider
a resident of Old Palo Alto
on Oct 28, 2015 at 12:15 pm

The district is responsible for following CA ed code and has 10 school days to answer complaints. Maybe people do not know that Ca dept of education is a resource to file bullying complaints and also that anyone can file a complaint with OCR . Leave a message and they will send the form. There is an office in San Francisco. Having a conversation with any entity that has hired two law firms. ( not just two lawyers) is pretty futile for most families. Pausd has gone way beyond circling wagons. Parents are considered the enemy and children are not considered. Hope it changes. Hope the new admin will not be considered the enemy if they help parents and kids.

21 people like this
Posted by Marie
a resident of Palo Alto High School
on Oct 28, 2015 at 12:39 pm

Max is correct about being proactive. Maybe if you had been in charge older, non-white, and female PAUSD staff would not have been treated in such a shameful manner. The over the top treatment of the late Martha Cartwright was ageist at best. Another Gunn staff member was banned from the campus even before an investigation was started. While a former PALY principal was allowed to remain on duty after sexual harassment charges were filed by Paly staff and students. Justice at PAUSD is for whites, males, those under 50, and non-handicapped persons.

Good luck, Max, in changing a culture which is covertly racist, sexist and ageist. Stay strong and fight the good fight for justice for all staff & students. You cannot undo the past but you don't have to repeat it.

4 people like this
Posted by Jay Cabrera for School Board
a resident of Community Center
on Oct 28, 2015 at 2:32 pm

[Post removed.]

10 people like this
Posted by Red
a resident of Downtown North
on Oct 28, 2015 at 9:14 pm

Red is a registered user.


13 people like this
Posted by Comment
a resident of Another Palo Alto neighborhood
on Oct 29, 2015 at 12:36 am

I will agree McGee has courage when he is willing to really investigate and deal with the retaliations, and sets the district culture on a path of openness rather than better-skilled coverup than his predecessor.

6 people like this
Posted by Comment
a resident of Another Palo Alto neighborhood
on Nov 3, 2015 at 2:02 pm

"You cannot undo the past but you don't have to repeat it."

Actually, you skipped over reconciling for and apologizing for/fixing past wrongs. Simply moving on ignores the damage to children the district is rssponsible for reconciling with where real harm was done.

Finding the truth and apologizing goes a long way, Max. Unless you do, you may find like Skelly did that things don't just go away. Rot covered up has a tendency to make things fall apart out if site. You will find you are only getting away with the secrecy path because people have been trying to give you the rope to do the right thing. Don't trip yourself with it. The community knows a lot more than you think.

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