Federal ruling against Palo Alto school district likely

Such is the legacy of the unfortunate tenure of Kevin Skelly. The scars of his torturous tenure on this district have still not healed.

At least McGee has a soul.

This is a lot more serious for the Board and District to be dealing with rather than the red herring of changing the name for Jordan Middle School.

I can only ask myself if there is an ulterior motive to those proposing the name change to trying to hide the fact that this is going on and prevent the BoE from spending their efforts on more serious problems, such as this.

Let's make the main thing the main thing, please.

@legacy, I agree that Skelly was a disaster. However, to be fair, much of this particular debacle is owned by McGee. McGee owns every bit of the Kevin Sharp matter -- from day 1 until today. Kevin Skelly never touched that. In many ways, that is the worst incident that will be addressed by OCR [portion removed.] (Of course one could say that Winston's sexual harassment set the climate for all that happened while he was principal, including Kevin Sharp's conduct. But Jackie McEvoy was principal in 2007 during the first complaint, and so it's hard to lay that on Phil, awful as he was.)

McGee has ownership of the following:

1. Decision not to move Charles Young out of the Title IX coordinator role even though there was ample evidence that it was being mishandled;
2. Decision to leave Kevin Sharp in the classroom for all of 2014-15 despite having had multiple complaints about him;
3. Decision to leave Kevin Sharp in the classroom for all of 2014-15 despite the fact that a students' parents complained [portion removed];
4. Decision to ignore the repeated requests of the Paly principal to get Kevin Sharp out of her school;
5. Decision to assign FFF to investigate Sharp [portion removed];
6. Decision not to remove Sharp from classroom pending the outcome of an investigation;
7. Decision to accept the Title IX report that failed to consider text message evidence that McGee knew to exist;
8. Decision to continue to use Chad Graff and FFF even though there was ample evidence that Graff and FFF [portion removed] had not served the district well;
9. Decision to continue to rely on Lozano Smith even though Lou Lozano was the source of the decision to retain Phil Winston and place him in a special education classroom after he was found to be a sexual harasser;
10. Decision not to amend the Title IX report in the Sharp matter even after it was repeatedly pointed out that the Report was clearly a cover-up given the district's finding that Sharp had groomed a student;
11. Decision not to hire a general counsel even though better legal advice is clearly needed unless he would be able to prevent the board from communicating with the in-house counsel in violation of board policy;
12. Decision not to issue an RFP for new legal counsel despite committing in June to the board that he would do it in August thereby depriving the board of competent counsel on the OCR matters;
13. Decision not to contact OCR to see whether or not the outstanding cases could be resolved without a finding against the district despite being urged to by a board member and Karen Gibson in open session [portion removed];
14. Decision to force the board to vote to order him to make a phone call rather than just pick up the phone himself;
15. Refusal to push for an anti-grooming policy requested by a board member that might have shown OCR that PAUSD was capable of cleaning up its own act;
16. [Portion removed];
17. Refusal to support a board member's effort to repeal the OCR resolution but instead allowing it to stay on the books where it did nothing other than antagonize OCR and cause it to focus on the district's many failures.
18. Refusal to work to resolve the Gunn stalking and dating violence complaint at an early stage of the process [portion removed];
19. Refusal to make focusing on Title IX compliance and revision of policies and training a key area of concern and focus.
20. Spending time on the XQ proposal instead of on TItle IX compliance even though [portion removed] there is clearly a need for real reform and focus in this area.
21. Appointing Holly Wade Title IX officer even though she has no training or experience in this area and relies entirely on FFF for all of this work, which is both expensive and error-ridden.
22. Constantly claiming lack of knowledge about things when questioned about it as if he is merely an observer rather than the CEO. The buck stops somewhere below him at all times.

There is more but this is more than enough. Maybe he has a "soul" as you say, but it is otherwise occupied.

Feds should also look into the discrimination by PAUSD against staff members on the basis of age, sex, and race. People are banned and harassed into retirement. [Portion removed.]

@Responsibilty,

To your comprehensive list, I would add: McGee has been told about serious retaliation by certain persons in the district office, but has taken a hands off or even adversarial stance rather than investigating. (Bringing the people in question closer and avoiding any look at the families' and children's sides sent a pretty clear message. Oh, and the threat of the district response against the families in the event of a complaint - a complaint to McGee, not even the OCR.)

Dr. McGee: You are still sending the message that the district will only do the right thing if forced to from outside. We faced retaliation for years for complaining after many months of trying to get help at all levels within PAUSD. We continue to be cordial, but despite all the district protestations to the contrary, this only gets us treated like chumps on top of the retaliation.

There are more serious mulifamily complaints in the future if you do not get proactive about truth and reconciliation, and you will own them. Do you want that to be your legacy? Ending your propensity for secrecy and avoidance of openness would be a start. Getting proactive about understanding why some families left after problems with said department/employees is even more crucial, because it's not over for most of the children. Take off your rose-colored glasses about certain employees and remember every conflict has two sides. Since your job is to educate children, you should care a little more about their needs and their side. Do not be lulled by any statutes as the ongoing threat of retaliation by said employees even for families trying to discuss and resolve problems with you means nothing is over for anyone even if they have given up trying to get help locally.

Do you really want to do the right thing and avoid these problems getting to this stage? As you asked, we're still waiting. The ball is in your court. But you are going to have to be very proactive at this point to get anyone to even believe you will act in good faith.

[Portion removed.] This is really a legacy of how California has gone wrong.
On the one hand pseudo liberal touchy feely - I am not your principal/superintendent I am one of you, which is all I believe it was, and on the other hand a ridiculously legal environment where everyone sues for any trumped up sexual harassment/ sexism/racism cause du jour.

[Portion removed.]

The principals and superintendent were not doing their jobs. They need to understand dignity, distance, authority and discipline. That means being fair. There is a difference between having authority but not authoritarian!

Sad. Three men who wanted too be cool.

Mary: Sometimes people are harassed into retirement because they are bad teachers and they can't fire them due to tenure. An excellent teacher would not likely be harassed into retirement.

Plus, this statement is incorrect: "These 2 younger teachers are 99.9% white, female, and under 30. What a shameful legacy."

@parent,
I can think of five great teachers who were harrassed into retirement, two subjected to the same kind of error-ridden discourse usually reserved for families the employees don't like. No one listened to thise teachers, either. The bad teachers remain. Why? Ever heard that joke about the lawyer who falls in shark-infested water and doesn't get eaten? That would be my guess.

@s,
That's just the point, though. There HAVEN'T been lots of lawsuits, even though people COULD HAVE sued the district in many more circumstances. For big bucks. The complaints to the OCR are difficult and stressful for families, particularly since they face certain retaliation by certain employees, probably aided by district legal, and the families don't get paid a salary to spend their time fighting these things as diatrict employees do, nor do they have all the taxpayer money to make lawyers do their bidding. The only thing district families get out of those complaints is getting the district to do the right thing by our children. District recalcitrance and retaliation works against children AND justice. Employees on the other hand clearly seem to have motives related to CYA to fight families and doing the right thing.

Given what families face, complaining is only for the bravest and most persistent. There is no room for trumped up anything, particularly given the surprising nastiness of some of the retaliation.

Think about it. The district had no compunctions about going after a federal agency whose mandate is to get districts to follow the rules protecting children. Imagine what they can do behind the scenes to families they feel crossed them.

[Post removed.]

Those lawsuits are coming, be assured. The OCR is opening up the doors to them!

Menlo Atherton High School wins the award for harassing teachers into retirement. I could tell you stories. Ageist administration.

[Post removed.]

Thank you Ken Dauber for reporting these problems to OCR. This will get our district on the right track and into compliance with Title IX. This rape epidemic has got to end. I appreciate the Weekly supporting Ken all the way along. How do we recall Townsend?

@Nancy - How did you turn two sexual-harassment investigations into a "rape epidemic"?

@It's acoming,
That's like a drunk blaming MADD or the police for a lawsuit from a drunk driving accident.

The big one is long overdue. Intervention is in order.

wow ... postings on threads about this topic seem to come from an alternate universe. We've had kids in the district going on 8+ years now and these comments in no way reflect ANY interactions that we've had in PAUSD with district staff, teachers, administrators, secretaries, janitors, ...

Best to wait for the OCR to act before rushing to judgment. Speculation just leads to confusion and misinformation.

Such as:

The Weekly: Its headline: "Federal ruling against Palo Alto school district LIKELY." Its story: Superintendent McGee "is NOT SURE whether the process will result in findings."

Town Square readers are confused about what a "finding," if PAUSD gets one, even means:

This thread: "Those lawsuits are coming, be assured. The OCR is opening up the doors to them!" "for big bucks."

Another thread: OCR just told Congress that it issues "recommendations" and "illustrations," not binding rules, so those who sue PAUSD for not following those recommendations open themselves up to very expensive counter lawsuits for bringing frivolous claims.

Quoting from an October 2015 article entitled 'Second Department of Education Official in Eight Days Tells Congress Guidance Is Not Binding'" --

--- Department of Education Deputy Assistant Secretary Amy McIntosh: "I tried to be very clear ... guidance that the Department issues does not have the force of law."

--- Under Secretary Ted Mitchell's sworn testimony: "To reiterate what Amy said last week ... our guidance does not hold the force of law and are recommendations and illustrations."

and

mentions a multi-million dollar counter suit a company won against a federal government agency because of that agency's "frivolous and burdensome lawsuit" and this "'U.S. Supreme Court Sets New Guidelines for Recovery of Legal Fees for Frivolous Civil Rights Claims'"

Web Link

Web Link

Responsibility,

Following up on my last post about waiting, not speculating.

I notice that the issue you say you are passionate about is OCR and Title IX sexual assault, calling for it to be the district's immediate focus.

Could your interest and concern have colored your perception?

I ask because I don't recall the papers reporting the facts you say below. Are you speculating? I suspect so since it is hard to fathom how anyone could be privy to what happened behind closed doors BOTH at the OCR and in the district.

Your claims, summarized:

- Overall climate in the district: "students are being sexually exploited by adults"

- OCR:

"Antagonize[d]" by the Board's resolution last year, OCR decided to "focus on the district's many failures."

OCR will be issuing "a finding against [the district] and three years of monitoring" because PAUSD didn't call the OCR as urged by a board member [Ken Dauber] and Karen Gibson in open session" when they asked it to.

- McGee:

"Constantly claimed lack of knowledge about things when questioned"

In the Paly teacher matter, "clearly" covered up facts in the Title IX report including "text message evidence that McGee knew to exist" and ignored "repeated requests of the Paly principal to get" that teacher out of Paly.

- Presumably McGee too (unspecified):

Refused "to push for an anti-grooming policy requested by a board member [Ken Dauber] that might have shown OCR that PAUSD was capable of cleaning up its own act"

- Former Paly teacher, by name: there were "multiple complaints about him"

- Former Paly principal, by name: was "found to be a sexual harasser"

- Holly Wade: "relies entirely on FFF for all" of the district's Title IX work

- FFF law firm and named attorneys in that firm: are "incompetent," their work is "error-ridden," and there is "ample evidence" that they are not to "be trusted"

- Lozano law firm: "the source" of the decision to place the former Paly principal in a special education classroom

@wait

I did not say that I am "passionate" but that is a typical tactic of discrediting, usually used against women, to make them appear to be emotional and irrational. In fact, what I said was McGee has exhibited a "Refusal to make focusing on Title IX compliance and revision of policies and training a key area of concern and focus." That is entirely accurate.

When a district is under multiple federal investigations for Title IX compliance, that district's chief executive officer should in my view make Title IX compliance a key are of concern and focus. That is sensible, not emotional. I reject not only the factual basis of your comment but also what it implies.

I furthermore stand by the absolute accuracy of my comments about Kevin Sharp, Phil Winston, Holly Wade, FFF, and Lou Lozano. [Portion removed.]

Responsibility,

I didn't mean to discredit you. I am just trying to sort opinion from fact.

You say that you "stand by the absolute accuracy of my comments about Kevin Sharp, Phil Winston, Holly Wade, FFF, and Lou Lozano."

What about the accuracy versus opinion of your statements about these?

- The overall climate in the district: "students are being sexually exploited by adults"

- That the OCR is issuing a negative finding against the district and will be monitoring the district for 3 years, and the reasons behind these actions: because the OCR is antagonized by last year's board resolution and Superintendent McGee waited too long to ask for an early resolution?

- Superintendent McGee's responses to questions, his cover ups, and his refusal to agree to an anti-grooming policy?

@Dan,
We were like you for the first six years, and would never have believed it except that we went through it. Complaints under ordinary circumstances are important for keeping things running well and fixing problems, but we remain stuck when the district has internal forces working so strongly against checks and balances (even protecting retaliation).

Your description of it like another universe is pretty apt. It is like that. As long as people who haven't fallen down the rabbit hole think it can't hapoen to them, the district will continue to hurt the families who most need support, with divide and conquer helping the worst actors get away with it. I actually think McGee could be an excellent superintendent, if the rest of us had cleaned house better before he got here. Instead, his legacy may be marred by the same things that drew Skelly under.

[Post removed due to inaccurate factual assertions.]

[Post removed due to deletion of referenced comment.]

@wait

You ask about whether the facts support these statements:

1. "students are being sexually exploited by adults." Yes. The facts support this statement. Phil Winston allowed an out of control streaking epidemic to take place at Paly and during the time that he observed naked teenaged girls running across campus [portion removed.]

2. That the OCR is issuing a negative finding against the district and will be monitoring the district for 3 years, and the reasons behind these actions: because the OCR is antagonized by last year's board resolution and Superintendent McGee waited too long to ask for an early resolution?

My actual statement is not the above. My actual statement is that the OCR resolution "did nothing other than antagonize OCR and cause it to focus on the district's many failures." This is also true as a factual matter. This resolution had no positive impact. It certainly did not achieve its stated goal, which was to obtain a meeting with Arne Duncan (we never even received a reply). It did not cause any change in OCR's investigation practices. It did not cause them to reconsider any of there actions toward the district. Rather it antagonized the agency. That is not the reason that they are about to make findings against the district -- they are about to make findings because the district screwed up (again). But it didn't help. That's common sense.

3. Did McGee wait too long to call to ask for resolution of the complaints? Yes. Clearly. This is about as factual as it gets. You can tell that because that's what OCR told him -- that it's too late for a resolution without findings. They have crossed the point when that would have been possible. That's why he said "we will not reach early resolution." Because they said "too late." He was completely negligent.

I personally don't care, because I think findings are good. I'm glad we are going to have them. I think they will be vindicating for the victims, and also they will prevent the district from being able to claim that they didn't do anything wrong they were just strong-armed into an agreement. I"m glad there will be findings. [Portion removed.] I suspect many parents who have been mistreated by the district feel the same. [Portion removed.] But as a matter of sound management and judgment, that was a terrible decision. Maybe if he wasn't off trying to sneak around to get McGee Academy he could have settled these two cases, like 99% of all school districts in America.

4. "Superintendent McGee's responses to questions, his cover ups, and his refusal to agree to an anti-grooming policy?" I actually have no idea what this is referring to. I'll go with this one: "Constantly claiming lack of knowledge about things when questioned about it as if he is merely an observer rather than the CEO. The buck stops somewhere below him at all times." The fact is that McGee can frequently be seen on video at Board meetings claiming that he doesn't know anything about things in response to board and public questions. I find him on this topic and on others such as XQ to be a slippery character. But I will allow that one is opinion, albeit the informed variety.

We can agree about one thing though. Waiting is fine with me. The feds are going to throw the book at PAUSD and I personally cannot wait. I believe that the findings are going to be completely vindicating for a lot of people and that the shame and ignominy will act as a change agent for the district -- a wake up call on this issue. My experience is that PAUSD is a deep sleeper. Ordinary wake up calls do not work. Years of data showing black students are underachieving? Ignored. Racist letter from math department? Under the rug. Coaches sexually abusing students? They might be defended if they have a lot of winning seasons. Pervy teachers? Paid off, no new policies. Adopt a UCP? You can ignore it. Laws are for other people. 12 suicides? [Portion removed.] You know what? this district needs a good kick in the teeth. I can't wait. I hope they need dental work when it's over.

Just agreeing that findings are going to be a good thing.

Dr. McGee is doing a fantastic job! Please admire is genuine concern for every PAUSD kids. I appreciate his transparency of good bad and ugly. I have only interacted with him indirectly 2-3 times and he is a fresh of breath air.
His job doesn't look easy and he works all hours.
Thank you Dr. McGee.

@Gunn mom,
You have only had indirect experience, and yet you think what? If people are experiencing retaliation against their chikdren, what should they do if McGee is not interested in investigating? Let your child continue to suffer? Let the district continue to break laws? Is it that you don't believe people have given him a chance? He's been here over a year. What if you've been very concerned, felt he was a breath of fresh air, and so coped as best you could, waiting for him but this only gets you ignored more? Now what? At some point, you take your information to a third party who oversees the compliance with laws. You may still like McGee but your child's wellbeing, and that of all kids, comes first.

One thing he has not been is transparent. You only think that because you haven't had to deal with problems. He's been worse than Skelly, and that's going to cause him trouble down the line.

[Post removed.]

Responsibility,

Lots of re-working words happened last night, by you and the Weekly with its redactions.

Sorting through it:

You say that you never said that the OCR will be issuing a negative finding against the district and require 3 years of monitoring. You said EXACTLY that (#13) but the Weekly erased it.

This statement of yours strains credibility too: "true as a factual matter" that the board "antagonize[d] OCR and cause[d] it to focus on the district's many failures." You may not know this but Federal agencies cannot be petty or punitive, which letting personal feelings lead to this kind of selective enforcement would be (google "selective enforcement" and the "United States Constitution").

Also, what you say about early resolution - that the outcome would have been better for PAUSD if only Dr. McGee had approached the OCR earlier - is misleading. Both early and regular resolutions can end the same way, with a resolution agreement and monitoring. Consider that PAUSD might have been better off NOT asking for the early resolution; it could be that an early request re-invigorates the OCR's interest in a languishing investigation, suggesting to it that the district's eagerness means that it has something to hide.

[Portion removed.]

@speculate,
"it could be that an early request re-invigorates the OCR's interest in a languishing investigation, suggesting to it that the district's eagerness means that it has something to hide."

No, that's just simply a complete misunderstanding of what this is, and makes it sound like our district is a bunch of criminals hiding up embezzlement. OCR is not a criminal agency investigating a crime. They are a DEPARTMENT OF EDUCATION office. What they do is try to help districts protect and serve kids, and properly follow the law. Usually, districts fully cooperate from the beginning because a complaint to OCR means there might be something serious wrong that needs fixing for the benefit of all their kids, and clearly the system is broken enough that someone took the complaint to OCR (and OCR accepted, which is also in itself rare relative to complaints). OCR does not decide individual cases, and it doesn't even take on individual cases if it appears there are processes in place in a dissstrict (as even happened here after the first settlement agreements).

Only a teeny tiny fraction of cases ever gets to the settlement agreement stage even. That's when the government has to basically write out what the district needs to do and make them sign it. It is exceedingly rare for a district to face anything punitive, because that's not what the department of education does, they aren't a punishment organization. But they can punish in very extreme cases. We could very well be one of those cases if McGee doesn't wake up and take a different and more open tack (with families). He's going to have a hard time avoiding further problems, like Skelly, if he continues to try to insulate himself through certain staff who are IMO what sunk Skelly.

Look at it this way. This is like the teacher (OCR) finding out that one of the students (districts) isn't doing well, or maybe is even engaged in unsafe behavior endangering everyone. There's a conference with the family (district administration). Most cases get resolved there, but once in awhile, recalcitrant guardians are asked to sign something with a clear list of what they will do. If it doesn't work, there are rumors about a woodshed in back, but no one knows anyone who has actually been taken there for a tanning. Palo Alto has been the recalcitrant guardians. The offender hasn't gone to the proverbial woodshed, but the teacher doesn't know the worst of it yet.

[Portion removed.]

I have no idea why the Weekly made the deletions they did [portion removed.] I stand behind everything I said though not the weird obtuse paraphrases you are making.

Anyways as I said let's wait for the findings. I think a lot will be cleared up when they come out. [Portion removed.]

Waiting for McGee,

[Portion removed.]

[R]ead my post about what happens if it does find against the district. The OCR is an advisory agency. Its "requirements," by its own admission, are not binding which means it won't be taking anyone to the "woodshed" for a "tanning" for breaking the law, as you say. It is a good idea to follow OCR's advice when it proposes improvements that help students, but that is different from your post about the OCR exacting punishment on school districts. Embarrassment maybe. Punishment, doesn't seem so.

You also said: a "teeny tiny fraction of cases ever gets to the settlement agreement stage."

Yes, many claims get dismissed early on but most for reasons that have nothing to do with districts' actions. Complaints don't state a violation. Complainant doesn't return OCR's call. Complainant filed too many OCR claims already and is barred from filing more.

It turns out that resolution agreements are not so rare: 1,310 cases resulted in resolution agreements during FYs 2013 and 2014. For sexual violence cases like being those claimed at Paly and Gunn: 28% ended with a resolution agreement.

It turns out that OCR monitoring isn't rare either: "In FY 13–14, OCR engaged in 4,321 monitoring activities. Additionally, OCR closed 1,178 cases in FY 13–14 that were previously under monitoring."

Web Link

BTW Even though it is not supposed to, OCR does, at times, "decide individual cases." Check out OCR's demands in PAUSD's first OCR case where it seems to have done so. Web Link

Resolution agreements are not rare and I certainly never said that they are. What is rare -- and what I said -- is Letters of Finding. Letters of Finding (of which PAUSD will have THREE soon) are rare as rain in the desert because under Section 302 of the OCR procedure manual any school district can enter a Resolution Agreement without findings at any time prior to the conclusion of the investigation.

McGee delayed, deferring to Camille Townsend and Melissa Caswell and their resistance to settlement, and did not exercise the right enjoyed by every district to enter into settlement prior to a finding. Now he has asked, because Dauber forced a vote on it. He got three votes for McGee to make a phone call, with Caswell abstaining [portion removed.] So now McGee has forced the board to literally vote to order him to place a call to ask if we can have a settlement without a finding.

Last week, the answer came back from OCR. Nope. You can't. Too late. But guess what? You will be getting a Resolution Agreement. Plus 2-3 years of monitoring. Plus a Letter of Finding. Now you are governed by Section 303.

So that is the level of insanity and inanity this has come to. Once again, Palo Alto rolls the dice. Once again, it comes up snake eyes.

What should we make of this?

My interpretation is that [neither] Camille Townsend [portion removed] and Melissa Caswell [portion removed] wanted to settle with OCR and both of them thought that they could wait this out, block student interviews, hide the information about Winston (potentially obstruction), and just stall, delay, dissemble and maybe eke out a victory.

Like all gambles there was downside risk. Since they were gambling with taxpayer money, they decided to let it ride on lucky 7. That was a bad bet. We lost.

Personally, however, as I said above, I am thrilled to death. I am glad that the individual victim and her family at Gunn are going to get the satisfaction of a Finding though I note that in open session of the school board the complainant's mother said she was perfectly happy to forego a finding and have a 302 Resolution. So, whoops. I am also glad that there will be a Finding for the further reason that PAUSD will not be able to claim that they were "strong-armed" into agreement by an overreaching federal agency.

They wanted to complete the investigation. That will be a decision that there will be plenty of regret over [portion removed.] That Letter of Finding is going to be very very welcome to me and so I say yes, you are right, let's wait and read all about it. It will be very very educational. I am especially looking forward to the sections on how PAUSD withheld the information about Phil Winston for months and tried to close the case saying that there was nothing to see here move along. I can only imagine that when the Phil Winston story hit the newspaper, there was some 'splainen to do over at OCR for the district. In most quarters, withholding information from a federal investigator is called "obstruction of justice." The lawyers like Chad Graff and the board members and district officials who failed to disclose Phil Winston to OCR will likely come to learn a lot about obstruction in the months ahead.

[Portion removed.]

@speculate,
If you read OCRs website, they do not take or decide individual cases, except in very extreme curcumstances. So, it is not, as you are portraying, their doing something they aren't supposed to. They generally don't. Apparently, the Terman case was one of the extreme cases, and having read the documents when posted, I would agree.

Secondly. OCR can in fact take away federal funding in very extreme cases. They don't usually, because their mission is to help districts follow the law. They can also issue rulings that make it possible for individuals to pursue justice in the courts.

I think you are getting confused, because there are Civil Rights offices, OCRs, in many if not most federal agencies. Department of Transportation has an OCR. I think even fisheries does. This is the Department of education. It's my understanding that of the approximately 2,000 complaints they took the year our district had two settlement agreements, only about 20 went to the stage where the government found the districts so recalcitrant they had to write out a series of steps for them and make them sign it. If you read the OCR site (department of education), the vast majority of districts work from the beginning to solve things and cases that get as far as Palo Alto's are extremely rare. I would guess it's rare for there to be districts with as much money as PAUSD who put their weight and money against the interests of families and first for professional appearances. I'm guessing very few pay their top administrators so much more than the state governor or senators.

Most complaints don't get "dismissed" - the majority aren't taken because they don't necessarily represent a breakdown in process, for example. It doesn't mean it isn't a legitimate complaint. As has been pointed out many times on Townsquare, you may have a legitimate case but the OCR does not take ordinary cases for the most part - it's the difference between complaining that you have been wronged and might have to go to court, and having to go to an outside agency because there is no local court system, or that it is so corrupt, there is no justice.

The district has acted like the spoiled child whining taking their parents to court for making them eat their vegetable and not torture the other kids in school. I only wish it were possible to go to an enforcement agency, so we could put an end to this and get back to educating children. And by "this" I mean the obfuscation, secrecy, backbiting, error-ridden letters and attacks on families, like pushing things to hearings, and all the other frankly unethical and unprofessional behavior that will not stop with this agreement because the perps never get taken to the woodshed.

Waiting for McGee,

The stats I posted and linked to were lifted straight from the Department of Education's Office of Civil Rights' report to the President, penned by the head of OCR Catherine Lhamon.

There were close to 1,000 resolution agreements issued the year PAUSD got one.

You pose an interesting point here: "OCR can in fact take away federal funding in very extreme cases." You are right in that that is what the OCR manual says. But it was written BEFORE OCR told Congress that it turns out that OCR's Dear Colleague Letters and rulings are really recommendations, not requirements.

If OCR can't make a district do something because what it issues are recommendations not rules, it can't take away federal funding for failure to follow those recommendations either. That's the difference between non-binding recommendations and the force of laws.

Perhaps that is why there has not been one school district or college that OCR has brought sanctions against, not even the University of Virginia which had about as high a profile of an OCR sexual assault investigation as there could be, featured in almost every major news outlet from the Rolling Stone Magazine to the New York Times.

After a very long OCR investigation of sexual assault on that campus, the OCR found a "hostile environment" for 4 years running with the University failing to take prompt and equitable action in 22 sexual harassment claims. In total, OCR had various concerns about UVA's handling of 29 of the 87 sexual assault reports filed in those few years.

OCR's Letter of Findings was a whopping 26 pages long. The findings were numerous and included a decade of deficient policies and deficient-to-no investigations in over 10 cases despite OCR's clear Dear Colleague Letter call for that.

And, as if that wasn't enough, in the negotiated resolution agreement the OCR signed off on UVA's refusal to admit to any wrongdoing and reservation of its right to contest OCR's claims "through all legal or administrative proceedings.”

Even there, the OCR did not bring a claim for sanctions.

Web Link

@wait. I am not sure why you are having so much trouble understanding this. I will explain slowly. OCR did not bring any enforcement action against UVA because UVA agreed to the Resolution Agreement. The threat of enforcement is sufficient to bring pretty much all schools to heel and that is why no actions need to be brought. However, where a school does not agree, enforcement can be brought and in fact has been brought in the past.

Most recently, OCR threatened enforcement against Palatine, Illinois (home of Max McGee) which was insisting on its right to discriminate against transgender students. OCR issued findings on November 2 and then gave Palatine 30 days to reach agreement. After first saying defiantly it would not reach an agreement, it then did so on the 30th day.

Web Link

Because the federal government is big and everyone eventually blinks so matter how loud they rattle the sabre in the beginning. Once the TV cameras were turned off, standing up to the federal government in favor of bigots got a lot less exciting and the same will happen here [portion removed.]

Now, would it have been better to have the Resolution Agreement without [portion removed] a big letter of finding? I'm going with "yes, it would have been better" for the district. Certainly it will not be fun to be a featured player in that letter. [Portion removed.]

Responsibility,

UVA and others were negotiated before OCR told Congress that its rules are recommendations. Up to then, the OCR had been telling schools that it worked with laws and failure to follow those "laws" could bring sanctions.

Palatine is an interesting case. The news reports I read about it did NOT indicate that the district caved because of the threat of sanctions. In fact, it considered revoking the agreement (below) despite possible sanctions.

That case was about a trans boy to girl's use of the girls' locker room. Once the OCR stepped in with its (IMHO quite sound) advice, the district agreed to "provide the student with access to the girls' locker rooms at her high school based on the student's request to change in private changing stations in the girls' locker rooms."

That part of the agreement related to that student ONLY.

The newsworthy dispute had to do with the OCR's integrity.

After the ink dried on the resolution agreement, OCR's Catherine Lhamon announced to the press that it was "'"wishful thinking"'" and "'facially inconsistent with the terms of the agreement' for the district to contend the policy did not apply districtwide."

The district called out the OCR for operating in "bad faith," accusing the OCR of having a "'blatant disregard for the facts' of the settlement" and using "'smoke and mirrors.'" "'Citizens have a right to expect more from a federal agency" it said.

So the Palatine school district said that it would consider retracting the agreement if OCR's Catherine Lhamon didn't retract her comments about its scope, despite possible sanctions if it did so.

The upshot: Lhamon retracted her statement in a letter to the district and said that, yes, she agreed -- that part of the agreement did say that it will apply only to that student.

Web Link

@speculate,
I think we are speaking apples and oranges, resolution agreement versus settlement agreement. But the description I gave you is not what you are referring to. The vast majority of districts work with the OCR, it is exceedingly rare for anyone to dig in like that.

I can barely stand to listen to your ideological slant, since our school district should be half that concerned by the bad faith if its own employees toward families. Who investigates or enforces that? I would have cared if the district had first taken the BEAM out if its own eye. OCR isn't any easier for families to work with, and no one is paying them bloated salaries with no accountability and giving them expensive lawyers on a leash. OCR is the only recourse and the district should be a little more concerned with providing it itself. Your ideology belongs somewhere it doesn't provide cover for underperforming people who let down or even hurt children.

You are just misinformed about the significance of the statements to Congress. Those statements are longstanding OCR and ED policy and did not represent any change. I am sure you will keep insisting to the contrary but you are just wrong and you can read any number of guidance documents and they will all tell you that they are "significant guidance documents" under OMB regulations meaning that they give advice and information about OCR's interpretation of the law but do not announce new legally binding rules. The clips you saw on CSPAN did not represent any change. I won't discuss this further because you appear to be unteachable on this point and I have no stake in whether you acknowledge reality or not. It doesn't change the fact that you are wrong that you refuse to admit it.

As to Palatine's motivation for accepting the resolution agreement, here is the language from the letter of finding:

"OCR has engaged in extensive negotiations with the District to resolve the Title IX violation in
this case. OCR notified the District of its Title IX determination on July 13, 2015, and has
actively negotiated with the District from that date through the date of this letter. OCR discussed
a proposed agreement with the District on July 13, July 16, July 20, August 1, August 13, August
19, September 16, September 25, and October 8, 2015. On October 12, 2015, the District
informed OCR that it would not resolve the Title IX violation voluntarily. On October 13, 2015,
OCR issued a letter declaring an impasse in the negotiations. OCR informed the District of its
continued willingness to negotiate an agreement, including holding an in-person meeting with the
District’s Superintendent on October 21. During the meeting of October 21, 2015, the District
presented OCR diagrams and blueprints of its locker room facilities that were consistent with
what OCR had observed during its onsite. The District also gave OCR a photograph of a mockup
shower curtain as a representation of what it would use for privacy curtains within the PE
girls’ locker room.

On October 28, 2015, OCR conducted an onsite visit at the School to view the privacy curtains
that District installed on October 27, 2015, and had further negotiations with counsel for the
District. To date, OCR’s efforts to resolve this complaint voluntarily with the District have not
been successful. OCR continues to be willing to negotiate an agreement with the District. If an
agreement is not reached within 30 calendar days of the date of this Letter of Findings OCR must
follow the procedures in its Case Processing Manual, at Section 305 for the issuance of a Letter
of Impending Enforcement Action."

The last sentence is obviously the most significant. This letter was issued on November 2. The Resolution agreement was entered into at 12:30 am on December 3 (at the December 2 board meeting. It was adopted at gunpoint and with a lot of resentment.

Catherine Lhamon (a Duveneck, Jordan, and Paly grad) said correctly that the district's claim that the locker room provisions applied only to a single student was out of touch with reality. That's because if the same facts arose again (i.e., if another TG student came forward and requested to use the locker room consistent with their identity, then they would have to be allowed, because if it was discrimination in this case it would be discrimination in the next case too. File that under "duh." The agreement requires the district to post the following notice: Web Link

"Township High School District 211 does not discriminate on the basis of sex in
its educational programs or activities, and is required by Title IX not to
discriminate in such a manner. This prohibition extends to employment and
admission. The following employee(s) have been designated to address questions
or complaints about discrimination: Title IX Coordinator, [Name or Title],
[Address], [Email Address], [Phone Number]. Inquiries concerning the
application of Title IX may be referred to the Title IX Coordinator or to OCR."

When you read this notice of nondiscrimination in conjunction with the Letter of Finding, here: Web Link

This is an agreement not to discriminate. That is an agreement to allow all transgender students to use the restroom of their gender identity, without the requirement of a privacy screen. Student A expressed willingness to use it, but she is not required. That's because OCR considers it discrimination to require it, and the school has agreed not to discriminate.

OCR states in the Letter of Finding that "All students, including transgender students, are protected from sex-based discrimination under Title IX." As part of that protection, all students are entitled to use the locker room and restroom of their gender identity. The district refused to allow her to use the girl's locker room even though she agreed to use a private changing area in that locker room. The district said instead that she would be required to use the private area in the locker room and denied access to the locker room unless she was so required. She resisted being subject to that requirement (though she agreed she would do so voluntarily). As a result, she was stigmatized, reprimanded, and threatened with losing credit for a graduation requirement. She was denied access to the locker room. OCR found that this was discrimination, and required the district to allow the student to have access to the girl's locker room and provide privacy screens for any student who wanted privacy (either the trans student or any other girl).

It is absurd to believe that this does not apply to any transgender student of any gender identity. Obviously, any trans student would have exactly the same right and claim that this trans student does. If it is discrimination in the case of this trans student, it will be discrimination in the case of the next trans student. The district must install privacy screens in all its restrooms so that every student can have privacy while changing who wants it. Otherwise, it is subjecting trans students to discrimination on the basis of sex.

Lhamon was only stating the obvious, when she said "I think we've been very clear about our position that (the district's) past denial of access to the locker room did discriminate on the basis of sex, so I cannot imagine that this district would be surprised about the way that we would enforce that going forward." That is just the facts. Lhamon expressly did not withdraw or walk back that statement and it is totally accurate.

Web Link

If you read the coverage, it's clear the district, the superintendent, and the school board are a bunch of horrible bigots more concerned with fighting OCR than with the health and well-being of this student -- who may as well be a witch to many of these horrible bigots who showed up with their signs to the school board meeting. Web Link The district's huffy comments in the media after it gave its grudging asset to the resolution agreement just showed that Lhamon should have taken them to enforcement because they are unreconstructed bigots who did not deserve another chance. Perhaps she reads these threads about OCR and will agree that Palatine deserved to be made an example. I suspect she came to regret that agreement in fairly short order, just as she will if she lets Palo Alto off the hook.

*********
See pictures and videos of the unbelievably horrible bigots of Palatine here: Web Link

""Regardless of what anybody says, this student is a male," one audience member said.

To raucous applause of some in the crowd of about 600, another man said: "It seems the rights of this one person are trumping the rights of everyone else." He added that his primary interest was for his daughters, prompting members of the audience to scream out, "And my girls!" "Mine too!"

"I'm angry because I'm tired of being told there is something wrong with what I believe," he said. "Like it or not, we are setting precedent here. Other school boards are going to look at what we did here, and they're going to cave to the OCR too."

[Post removed due to same poster using multiple names]

Responsibility,

Agreeing with OCR's mission, applauding much of its work, and marveling at its energy, this post is just to respond to what you and Waiting for McGee say about the how OCR works, what motivates districts, and the threat of sanctions.

By the detailed knowledge you share in your posts you likely know that what Title IX says and what OCR requires in its Dear Colleague Letters are quite different.

For example, buried in the Dear Colleague Letter on sexual assault it this controversial OCR "rule": cases are to be determined using the "preponderance of evidence" aka 50.001% certainty standard. Recall the Harvard Law professors scathing criticism? This "rule" is one of the reasons for their scorn and University of Pennsylvania law professors' scorn too. That preponderance of evidence "rule" is of OCR's own making; it is NOT in Title IX.

Web Link

Web Link

OCR's decision [portion removed] is problematic for the OCR:

The "club" that you mention and OCR uses is the threat of taking away federal funding, often millions a year. For that threat to have legs, OCR has to prove that schools willfully violated the law. A decision to not follow OCR recommendations doesn't cut it.

And there is that OCR is taxpayer funded and so isn't to overstate its hand i.e. make unfounded threats. Federal agencies are created to enforce Congress' laws and interface with the public in an honest, fair, and equitable way.

You are right that schools do end up following most of what OCR asks of them. They enter into agreements with the OCR for these reasons:

1. Often what OCR asks them to do helps students, lots.

2. They want to avoid a time consuming and costly negotiation.

3. They want to avoid personal and institutional embarrassment.

4. Until this Fall, schools were told that if they didn't follow OCR's rules they could kiss their federal funding goodbye.



Some OCR history:

Last year OCR's Catherine Lhamon told Congress that she requires schools to follow OCR's rules, even though many aren't in the Civil Rights laws or the Department of Education regulations.

This year Congress talked to Ted Mitchell and Amy McIntosh, Ms. Lhamon's bosses, who corrected the record by testifying that OCR issues recommendations and illustrations, not rules.

It reported by the Foundation for Individual Rights in Education, founded 16 years ago by a Boston civil liberties attorney and University of Pennsylvania professor to defend students' First Amendment/freedom of speech and other rights.

Web Link

Web Link

[Portion removed.] I won't respond further to your misinformation, other than to say that it is misinformation.

As to what is happening with OCR and PAUSD -- if PAUSD does not enter into a Resolution Agreement then it will receive the same kind of letter of finding issued to Palatine, warning of impending enforcement action to withdraw federal funds. Palo Alto will be on weaker ground than Palatine, given that the rights of transgender students are subject to a balancing test for privacy, and are unsettled in court, whereas the rights of female students to be free from sexual harassment, including a hostile environment and sexual grooming, and dating violence and stalking are clearly established. OCR will have no trouble showing violations of Title IX in PAUSD.

An additional thought for PAUSD officials to ponder is whether and to what extent PAUSD officials and lawyers may have committed obstruction of justice pursuant to 18 USC 1001, which provides up to 5 years in prison and fines for anyone who, to any administrative agency, knowingly and willfully

"(1) falsifies, conceals, or covers up by any
trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or
fraudulent statement or representation; or

(3) makes or uses any false writing or document
knowing the same to contain any materially
false, fictitious, or fraudulent statement
or entry."

Here are the questions that the PAUSD cases raise: did PAUSD tell OCR about Phil Winston when it was directly asked for all complaints or incidents of sexual harassment against students about which it had notice? PAUSD was presented with multiple document requests and information requests from OCR during the course of its Paly investigation. At the same time, PAUSD knew that Phil Winston had already been found responsible for sexual harassment and some of the allegations involved students. Did any of the individuals involved including board members, senior staff, and Chad Graff, knowingly and wilfully withhold that information from OCR? Did these individuals make any materially false statements or submit any materially false statements to OCR? Those involved in that investigation should go back over the statements that were made, the actions taken, and should alert their insurance carriers.

Enough of this attacking of OCR [portion removed.] I strongly suggest that the day of reckoning for the Phil Winston matter is close at hand and those who were involved should get their houses in order.

That day cannot come soon enough.

Read more about 18 USC 1001 here: Web Link

Please note that statements made to the executive branch can be prosecuted whether they are sworn or unsworn. The only requirement is that they be material to the investigation. If information about incidents of sexual harassment against students involving Phil Winston was not disclosed to OCR or if documents were submitted to OCR that did not include those incidents or denied their existence, then the only question is whether the fact that the principal of Paly was found through an investigation to have created a sexually hostile environment including of students would be "material" to an investigation of sexual harassment at that school.

What do you think? Seems material to me as a layperson, but let's leave it up to the US Attorney. Reading the US Attorney's manual, seems to fit right within it. And the district should take no comfort from the case law which is extremely broad in its interpretation of 18 USC 1001. Lying to government investigators is always a problem, and the courts never feel that it is acceptable. So, my urging to those attorneys such as Lou Lozano and Chad Graff, and those officials such as Barbara Mitchell and Melissa Caswell and Heidi Emberling and Kevin Skelly who submitted these documents to OCR is to take a close look at what was said and when. Read the text of 18 USC 1001, and then consider this: your attack on OCR has not endeared you to the very federal prosecutors whose discretion you may need. Think about that one.

Responsibility,

On PAUSD sharing information with the OCR about Phil Winston, you question whether they hid something saying that "those involved in that investigation should go back over the statements that were made, the actions taken, and should alert their insurance carriers."

PAUSD shared that information according to the Weekly: "Associate Superintendent Charles Young told the Weekly that the documents containing information about the allegations regarding Winston had been provided to OCR."

Are you concerned that PAUSD missed a deadline? I don't know but it is hard to imagine that the District Attorney would send someone to prison just because he took longer than the OCR would have liked to do what it asked.

Web Link

The statute is really clear so read it. I'm not seeing any excuse or defense for making false statements of "it took longer than OCR would like." But hey, if that's all you got, I guess you can try it.