Feds direct Palo Alto school district to address violations | News | Palo Alto Online |


Feds direct Palo Alto school district to address violations

Office for Civil Rights outlines remedial actions as it concludes sexual-harassment investigation

In a much-anticipated conclusion to a federal investigation into how the Palo Alto school district has responded to cases of sexual harassment at its two high schools, the U.S. Department of Education's Office for Civil Rights has submitted to the district a draft agreement that outlines specific steps the district will be obligated to take to address its failure to comply with federal law.

Office for Civil Rights (OCR) attorneys presented the agency's legal findings in meetings last week and on Monday to Superintendent Max McGee, Chief Student Services Officer Holly Wade and the district's lawyers, informing them verbally of their findings and providing in writing a draft resolution agreement.

The findings, which will detail how the district mishandled several cases of alleged sexual harassment and thereby violated anti-discrimination law Title IX, will only be released after the district has signed the resolution agreement.

The agreement is subject to negotiation and could change, but the agency's findings are not, according to the agency's procedures.

The 11-page document reveals that the Office for Civil Rights expanded the investigation, launched by incidents that led to two separate cases, to encompass multiple allegations of sexual harassment, teacher grooming and sexual violence involving students, teachers and administrators over the course of the last three years.

The first case was initiated by the Office for Civil Rights itself in June 2013 in response to Palo Alto High School student publication Verde Magazine's investigation into "rape culture" at the school. The story detailed anonymous accounts of off-campus sexual assaults and students' attitudes around rape and victim blaming.

The next year, a Gunn High School family filed a complaint alleging that the school district violated Title IX in its handling of peer sexual harassment and violence in which their daughter, a Gunn student, was assaulted and victimized by her former boyfriend, also a Gunn student.

Until the legal findings are released, the details of how the district failed to properly comply with the law can only be gleaned from the extensive remedial actions the federal agency is proposing in its draft agreement.

It directs the district to hire an independent investigator, to be approved by the Office for Civil Rights, to conduct proper Title IX investigations into the way the district responded to allegations that former Paly principal Phil Winston sexually harassed students, allegations that then Paly teacher Kevin Sharp had an inappropriate consensual sexual relationship with a student and reports of off-campus sexual violence in 2012-13 and another in 2014.

In effect, the agency is asking Palo Alto Unified to conduct the investigations the district was obligated to carry out at the time it learned of the various incidents and allegations but didn't. Among other details, the investigations are to determine whether any school employees should be disciplined for "enabling or failing to report the behavior."

The district is also being directed to prepare written notices of the outcomes of the investigations and to send them, after the agency's review, to the complainants and respondents (those who were accused).

The agreement asks the district to provide all investigative reports, underlying documents and interviews related to Paly teacher Ronnie Farrell, who was arrested this summer for allegedly touching a student in appropriately in a classroom at the end of the last school year, and former Ohlone Elementary School teacher Michael Airo, who was arrested in January for alleged child sex abuse that occurred more than a decade ago.

What the resolution agreement says

While the Office for Civil Rights' findings have yet to be released, the resolution agreement indicates the district has erred in its policies, training, reporting of and response to sexual harassment and discrimination.

The agreement asks for revision of district policies on non-discrimination and harassment, sexual harassment and the Uniform Complaint Procedure (UCP) to ensure compliance with Title IX. Its sexual harassment policy should explicitly define grooming, behavior defined by the Office for Civil Rights as "a desensitization strategy common in adult educator sexual misconduct," an issue that came up in the Sharp case, the agreement states. The district's policies also conflict with each other in some places and "do not support each other," Wade said the federal agency informed them at last week's meeting.

The federal investigators also identified tracking reports of sexual harassment and sexual violence as an area of concern, asking the district to create an online system where it can maintain its own confidential, detailed tracking of complaints and where students and parents can anonymously report concerns.

The agreement also suggests a need for more transparency, proposing that the district's Title IX coordinator report annually to the superintendent and Board of Education the information collected by these systems.

Paly and Gunn in particular will likely also see increased training and new school-climate surveys for both students and parents to assess the extent to which students witness or experience sexual harassment or violence and the "effectiveness of school harassment response and prevention efforts," the agreement states.

McGee told the Weekly that the district's top priorities will be to conform its policies to federal law, to make sure all investigations are completed within their required timeframes with prompt response to all parties involved and to regularly report the number of complaints to the board and public.

He declined to state whether there is anything in the draft agreement that the district will challenge but did say that there "may be some things to discuss with them" about the feasibility of conducting new investigations into allegations that stretch several years back.

McGee said he will not be recommending the district object to the Office for Civil Rights' proposed three-year monitoring period, which could involve requests for more information, site visits and interviews. The draft resolution also proposes strict reporting requirements to ensure the district is complying with the agreement.

"Looking at the big picture, we intend to be cooperative," he said.

He declined to give specifics about the Office for Civil Rights' findings since they were shared verbally, he said, rather than in writing. The district will have the option to appeal the findings within 60 days if it believes they are incomplete, incorrect and/or the appropriate legal standard was not applied, according to the agency's case-processing manual.

"This is important for us to listen to what they say, to work through this resolution agreement and do better," McGee said in a video interview on the Palo Alto Weekly's "Behind the Headlines" webcast last Friday.

He added that he is committed to being transparent about the district's dealings with Office for Civil Rights.

"I think it's important to put it out in the public as soon as possible," he said.

The complainant in the Gunn case, whose name is being withheld by the Weekly to protect the family from further public exposure, told the Weekly her family is "relieved" that the investigation has finally come to an end, with confirmation that "serious mistakes were indeed made in our case."

"The intent of our OCR filing was to bring objective outside review to PAUSD policies and practices which we believed were inadequate," she said. "We did not expect it would have any impact on our particular case due to the considerable length of these investigations, but we were concerned about the potential for future mishandled cases.

"We hope the district will now move forward collaboratively with the OCR in changing processes, so that future victims will be protected," she said.

The district has 90 days from Dec. 7 to respond to the resolution agreement. The district's new law firm, Atkinson, Andelson, Loya, Ruud & Romo — the replacement for Fagen, Friedman & Fulfrost, which represented the district in past Office for Civil Rights cases — is working with staff on a response, McGee.

The two Office for Civil Rights investigations began under the watch of former superintendent Kevin Skelly, who left the district in June 2014. Skelly was widely criticized for failing to promptly disclose -- even to the school board -- a December 2012 resolution agreement and findings from the Office for Civil Rights that the district's mishandling of a Terman middle school bullying case had violated the civil rights of a disabled student.

McGee arrived in August 2014, and the next month the district received a complaint about Sharp from the parents of a student. No Title IX investigation was initiated by the district until the following year, and then the district's two law firms came to opposite conclusions about the case. The district and Sharp entered into a settlement resulting in his resignation last November and a payment to him of $150,000, the same amount paid in a settlement with Winston in exchange for his resignation in June 2015.

In October 2015 -- at the urging of trustee Ken Dauber -- the school board and McGee sought to take advantage of a provision in the federal agency's guidelines allowing the negotiation of an early resolution of the Paly and Gunn cases, thus avoiding the issuance of a letter of findings that would identify where a district or school is legally out of compliance.

The agency, however, last December informed McGee the investigations were too far along to pursue early resolution, and McGee announced that the district could expect both findings and a resoution agreement in the two cases.

The board will discuss the draft agreement at its first meeting of the new year, on Tuesday, Jan. 10.

View the full resolution agreement here.


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19 people like this
Posted by Marc Vincenti
a resident of Barron Park
on Dec 14, 2016 at 8:06 pm

Marc Vincenti is a registered user.

Thanks to the Weekly for its stellar reporting. It was a hopeful sight, to see Todd Collins and Jennifer DiBrienza on the dais last night.

42 people like this
Posted by How Do You Like Your Crow Served?
a resident of Another Palo Alto neighborhood
on Dec 14, 2016 at 8:34 pm

The chickens are finally home to roost.

PAUSD violated the rights of female students. It should have investigated a whole series of things but did not. Most shockingly of all, it failed to put into place grooming policies after Kevin Sharp was discovered to have groomed a student. Had Max McGee and District Compliance Officer Holly Wade acted properly in response to Kevin Sharp, Ronnie Farrell might not have done what he is alleged to have done to the young victim in that case. Had a grooming policy been in place and students been trained on how to recognize the signs, perhaps when Farrell sent a private facebook message to that young girl, she would have recognized the warning signs of grooming and known to report it rather than to go meet him.

That is what is known as an omitted precaution. It's also what is known as FUBAR.

We have failed in the most important job we have, which is to keep our children safe from sex predators in the schools. We had the chance to intervene and didn't. We should all be deeply ashamed. There is no way to ever make up to this student what was taken from her and her family. It is an outrage. It is shocking. And it is McGee's fault. The fact that he still has a job after he failed to deal properly with the aftermath of the Sharp case is repellent. [Portion removed.] You didn't want to admit that Paly made mistakes and needed improvement.

That of course is the same mistake made by Katherine "our staff is very sophisticated" Baker, who didn't think we needed training. Of course, history repeated there too with the recent Jordan case that was a total replay of the Terman case from 2011.

Now would be a good time to repeal the outrageous Resolution of the Palo Alto School Board condemning OCR, and also to apologize to the parent who was falsely accused of "document tampering." PAUSD was arrogant and it aligned itself with the hard right [portion removed] wing of the Republican Party in condemning the Obama administration's dedicated work on Civil Rights. Last night the Board passed a resolution that purported to support civil rights for all students, including girls, transgender and genderqueer students.

You cannot have it both ways. You cannot embrace civil rights to make yourselves look good and condemn civil rights enforcement.

2 people like this
Posted by story behind the story
a resident of Stanford
on Dec 14, 2016 at 8:41 pm

Weekly reports that the district "violated anti-discrimination law Title IX."

Not even the OCR, or its parent the US Department of Education, believes that a school refusing to do what the OCR says it must do is against the law:

--- Assistant Secretary of the OCR Catherine Lhamon: OCR's guidance does not “carry the force of law.”
--- US Department of Education Deputy Assistant Secretary Amy McIntosh: "guidance that the Department issues does not have the force of law."
--- Under Secretary of Education Ted Mitchell: "our guidance does not hold the force of law and are recommendations and illustrations."
-from "Must vs. Should," Inside Higher Education, February 2016, Web Link

Same said Federal Judge O'Connor when a school recently took the OCR to court to fight instead of comply. Kent Talbert, former general counsel in the Education Department: Judge O'Connor says that "the [OCR']'s wrong."
-from "Federal Interpretation -- or Legislation?" Inside Higher Education August 2016 Web Link

The real story here? According to Alyssa Peterson of Know Your IX: these complaints are a powerful tool in the OCR and complainants' "media strategy" campaign.
-from "What the Future Holds for the Federal Crackdown on Campus Sexual Assault," Chronicle of Higher Education, June 2016

4 people like this
Posted by Caleb
a resident of Barron Park
on Dec 15, 2016 at 9:26 am

1. I hope the decision about whether or not to sign this agreement takes place during an open session of the school board, where the pros and cons are publicly discussed. I don't trust the Weekly to give an honest report about both sides of this story, and I'd rather hear it for myself in an open session.

2. It would be in the best interest of the district to hold off on signing this agreement until the new administration is in place in Washington. [Portion removed.] It wouldn't surprise me if the people involved in this are replaced by the new education secretary.

16 people like this
Posted by The retaliation from Carrillo et al was worse
a resident of Another Palo Alto neighborhood
on Dec 15, 2016 at 9:26 am

Actually, I'm quite alarmed for the families and others in the future who will be retaliated against by the district people who think their "embarrassment" is a punishable offense. The OCR really should make some provision for a monitor who will hear any and all complaints about retaliation so that they get nipped in the bud. Failing to do so is like telling stalking victims that stalking us a crime but they can only get police help after they are murdered.

OCR should make the retaliation monitoring broad enough to take in allcomplaints and evidence of existing and past retaliation that was never dealt with because if a lack of any kind of protection (and the certainty if more retaliation from complaints). After all that these families have gone through, they think their nightmare is over but if experience serves, they habe no idea what is about to hit them. OCR needs to wake up to that, after all that they have seen in PAUSD.

23 people like this
Posted by Retaliation from Carrillo et al was worse
a resident of Another Palo Alto neighborhood
on Dec 15, 2016 at 9:38 am

Sigh. OCR is not an enforcement agency. They are there to help districts follow the law, and to protect students when districts don't. All the district is doing by fighting OCR is neglecting its own mission and opportunity to improve.

If the new administration takes away what limited help OCR is now, I hope the City will make good on its promises and draft a charter amendment creating an ombudsperson position with the City, someone directly answerable to the City and parents and independent from the district administration, who can and has the power to solve problems from outside the echo chamber. The parents are paying bigtime for too many overpaid bureaucrats who don't answer for their incompetence. We can take responsibility for ensuring there are checks and balances, by implementing a better structure for it.

9 people like this
Posted by Ron
a resident of Crescent Park
on Dec 15, 2016 at 10:01 am


Do you Mean that since the new administration is ok with Sexual misconduct against Women, that this will just go away?

18 people like this
Posted by jh
a resident of Evergreen Park
on Dec 15, 2016 at 11:34 am

jh is a registered user.

Down the years there have been a succession of parents who have started legal actions against the school district. Which the district has then settled out of court with the usual non-disclosure clauses. Each parent believes they are on their own and have no idea that other parents have or have had the same problems. Which is, of course, the way the school district wants it. Parents settle because doing so not only protects their child's privacy and any possible retaliation, but also because few parents have the resources or energy for a protracted fight with the school district. So parents settle court of court and sign the non-disclosure agreement. It takes a brave parent who is willing to go public and expose the school district. How many of these suits have been filed over the years, and how many millions of dollars has the district quietly paid out? No way to know. If these cases were without merit why would the district settle out of court with non-disclosure agreements?

5 people like this
Posted by Stew Pid
a resident of Community Center
on Dec 15, 2016 at 12:20 pm

Most of these horrible events were brought to us under the august leadership of Kevin Skelly.

3 people like this
Posted by jh
a resident of Evergreen Park
on Dec 15, 2016 at 1:00 pm

jh is a registered user.

Way predate Kevin Skelly.

11 people like this
Posted by caleb
a resident of Barron Park
on Dec 15, 2016 at 4:12 pm

@Retaliation, OCR is very much an enforcement agency, and it constantly requires school districts and colleges to enter into consent decrees. Albeit civil not criminal. OCR is being sued for exceeding its statutory authority. Web Link

A little history -- OCR began in the Carter administration but was very small, just a handful of people. Obama greatly expanded it in 2009 to about 500 employees. The initial focus under Obama was to protect gay students from harassment. But in 2010, OCR's mission was broadened to enforcement of Title XI and disability rights. Palo Alto became a focal point for OCR. At one point we had more OCR cases pending than any school district in the country. One reason is that we had an activist in town who held a meeting to teach parents how to file OCR cases. And this activist appears to have worked very closely with the Weekly to stir the pot.

I have a feeling that a Republican administration will scale back OCR under the idea that communities should have control over their schools, not Washington. Not that sexual assault is acceptable (as one person said on this thread) but that Washington's solutions are often a bad fit and sometimes outside the law (as the case cited above alleges).

McGee would be wise to wait and not sign anything with OCR until the new education secretary cleans house. It's very possible that the new OCR crew won't even bother pursuing these cases.

10 people like this
Posted by Nameless teacher
a resident of Terman Middle School
on Dec 15, 2016 at 10:40 pm

These issues are so lamentable. They harm good teachers everywhere. My heart goes out to the family. My gear is of retaliation.

Like this comment
Posted by Nameless teacher
a resident of Terman Middle School
on Dec 15, 2016 at 10:41 pm

*fear (autocorrect)

8 people like this
Posted by Parent
a resident of Crescent Park
on Dec 15, 2016 at 11:17 pm

@caleb, good point, why would McGee want to agree to follow the law if he didn't have to? OCR resolutions don't have fine or penalties - they just make districts do what they should be doing anyway.

3 people like this
Posted by Devil in the details
a resident of Crescent Park
on Dec 16, 2016 at 7:47 am

The remedial actions suggested by the OCR are well-intentioned, but administratively onerous. The District needs to take action, but, unless the OCR is going to fund an administrative block and tackle team, how will the District implement this list successfully?

I suggest the District determine what meaningful steps to solve the problem it can successfully implement and take them, but wait out the OCR, which, under the new administration, is likely to lose funding and staff.

If you disagree, I suggest you re-read the list of remedial actions and start considering the work force it will take for each one and the impact each will have. You will see they are not of equal import and that effort and benefit are not aligned.

8 people like this
Posted by Parent
a resident of Crescent Park
on Dec 16, 2016 at 10:53 am

@Devil, which did you find especially onerous? The only ones that I take issue with are reinvestigating, using an outside investigator, incidents that are several years old. That seems likely to be costly and of limited benefit. But the policy changes, training, monitoring, and reporting all seem to be what we should be doing anyway.

11 people like this
Posted by The retaliation from Carrillo et al was worse
a resident of Another Palo Alto neighborhood
on Dec 18, 2016 at 9:39 am

Reinvestigating is actually a good idea. Until there is something that could forces upper management to take stock of the practices that have been happening over and over, things will not get better, because the employees most at the root of problems will continue to put their CYA over improving the culture. Plus, the older cases deserve to have the help for their kids, too. They are usually the most injured and least able to seek help. They may be old as far as the district is concerned burpt I assure you, for many, the damage continue and some truth and reconciliation will be helpful for them and for the system.

13 people like this
Posted by Fairmeadow mom
a resident of Fairmeadow
on Dec 18, 2016 at 11:59 am

Obviously the cases should be investigated. How else can the district know what changes need to be made? In addition to the fact that the district violated the law in not doing them when they were required to.

5 people like this
Posted by Parent
a resident of Crescent Park
on Dec 18, 2016 at 12:04 pm

@Retaliation - help me understand. In my understanding, in most of the older cases, the staff directly involved have almost entirely moved on - the entire admin staff at Gunn has turned over, Winston is long gone, and the current principal at Paly was the person saying Sharp should be removed. So it seems to me that we'd find out what we already know - that Bowers is ineffective in this role and that Wade, to the extent involved, little better. By definition, most or all of the kids involved in the older Paly and Gunn cases have graduated, so it's of no help to them. I would draw the line at cases, say, less than two years old, and focus on that. The cost/benefit just isn't there otherwise. Do you think otherwise?

11 people like this
Posted by The retaliation was worse
a resident of Another Palo Alto neighborhood
on Dec 19, 2016 at 9:51 am

No, I don't agree that the persons most responsible for the untrustworthy culture at the district office have moved on. Read my online name. Some truth and reconciliation is probably the only way to establish patterns when there are employees who are so politically adept with their own colleagues. Who did the current superintendent ask, in the district office, to approve the current legal team? We turned over legal, but the CYA crowd made sure to approve the new team. We will never get out from under this, even with turnover at the school sites, if new employees are subject to the same culture and expectations, and the key employees responsible are not held to account.

What happened at Jordan in this latest bullying case could have been expected, if the cases where things most went wrong (but people just left the district or gave up) had been examined impartially and learned from. The retaliations haven't been looked at at all. They are not old to people who are living them with the district still protecting the employees who retaliated in the district office and put their own behinds above fixing our system for the kids. The culture in the district office and thus among employees has NOT been fixed.

The fact that our new superintendent is still so caught up in flaunting records laws and transparency comes back to the same people, who are still with us. And truth and reconciliation matter to those who have been harmed, illegally, unprofessionally, and unethically, by those who are still with us. Until more investigation is done by a truly impartial source, none of us can fairly judge. Think about it. If your child faced serious problems and your family faced retaliation and you were made to feel powerless against the district, how would you feel if someone finally was going to investigate but the district and the core employees responsible got to nix it, saying two years had passed and it was old news? It isn't old news for those who were damaged, especially the children whose relationship and trust in such an important institution has been destroyed. Even if certain employees have moved on, the fact is, the district has never gotten the benefit of learning from its mistakes or making things right so they don't happen again. And, frankly, they still continue to employ key people in the district office whose tenure coincided with our district's special ed and student services' most problematic practices.

8 people like this
Posted by The retaliation from et al was worse
a resident of Another Palo Alto neighborhood
on Dec 19, 2016 at 10:06 am

Sometimes you can read your own writing to get the answer to your question. You say the staff at Gunn has almost entirely moved on. Jacoubowsky moved to Jordan, where he was principle during the latest serious lapse. I don't even blame him, I blame the people from the district office (who haven't turned over) who established the culture and expectations followed at the school site, It doesn't matter whether school employees are old or new, when they seemed to have been implementing practices from the district office to avoid even noticing things going wrong (the staff telling the parents the principal was too busy, even as the principal was at the district office discussing the problem without ever telling the parent, and very likely because of putting CYA ahead of doing the right thing). No, we absolutely must learn from rather than sweep recent past problems that were never dealt with properly under the rug. (To a hurt student, what you call "old" isn't old. Imagine telling a molested child that to justify changing statutes of limitations on molestation. 'Well, the state moved you away from your relative two years ago anyway, so why should we investigate this old claim that you were molested? Your stepmother has a new husband now anyway.')

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