A majority of the Palo Alto school board agreed Tuesday night that the best course of action forward on a proposed resolution agreement from the U.S. Department of Education’s Office for Civil Rights on sexual harassment cases at the district’s two high schools is to seek clarification when needed but to avoid pushing back on requirements.
Primarily, the school board disagreed with a recommendation from Superintendent Max McGee to limit an independent investigation and review to only current students and teachers. In the draft resolution agreement, provided in December, the Office for Civil Rights (OCR) directs the district to hire an independent investigator, to be approved by the federal agency, to conduct proper Title IX investigations into former Paly Principal Phil Winston’s alleged sexual harassment of students, former Paly teacher Kevin Sharp’s alleged consensual sexual relationship with a former student and reports of off-campus sexual violence between 2012 and 2014.
“This is the Office for Civil Rights. They make suggestions to us, and my default is to accept those suggestions unless there is some compelling reason not to,” board member Jennifer DiBrienza said.
A majority of the board agreed that while the district can ask the Office for Civil Rights to clarify what an independent investigation might entail, there could be cases of sexual harassment or violence that they’re unaware of involving former students — students who may “have been harmed (and) to whom we owe equitable relief,” trustee Todd Collins said.
The independent investigation — the concept of which McGee does not object to and will comply with, he said — could shed light on how the district erred in the past so it can correct its practices for the future.
“This isn’t just about going and finding people that have been harmed,” said Vice President Ken Dauber, who served as the temporary president at Tuesday’s meeting in Terry Godfrey’s absence. “It’s also to understand what processes broke down, what decisions were made that shouldn’t have been made (and) what exactly was missing that we need to fix.
“If we don’t do those investigations, then we won’t know the answers to those questions.”
McGee argued that an independent investigation could have “diminishing returns and significant expenses” depending on its scope. For example, tracking down former students and staff could be costly. He took the same position on the resolution agreement’s directive to review all behavioral incident reports from Gunn and Palo Alto high schools from 2012 through 2016.
“We’re not disagreeing with the guiding principles” of those two requirements, “just how far back we should go,” McGee told the board. He later agreed to drop that recommendation at the board’s direction.
Melissa Baten Caswell — the only trustee who was on the board when the Office for Civil Rights first opened its investigations at Paly and Gunn — expressed concerns about the proposed agreement.
She said she was reluctant to agree to a resolution agreement without first receiving the agency’s official findings, which will identify where the district or the schools are legally out of compliance. The Office for Civil Rights has shared its findings verbally in meetings with McGee, Chief Student Services Officer Holly Wade and district attorneys but will not provide anything in writing until the resolution agreement has been signed.
Attorney Elizabeth Estes of the law firm Atkinson, Andelson, Loya, Ruud & Romo, who is working with the district on the resolution agreement, told the board via speakerphone that in her experience with voluntary resolution agreements, the Office for Civil Rights has issued its findings in writing after the agreement is finalized.
While the resolution agreement is subject to negotiation and could change, the findings are not, according to the agency’s procedures. The school 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 Office for Civil Rights’ case-processing manual.
McGee said staff sent notes of their understanding of the agency’s findings from these meetings but has yet to receive confirmation from the Office for Civil Rights on what are findings and what might be “concerns.” Baten Caswell asked McGee to share those notes with the board members.
“I don’t think we should be signing a resolution if we don’t know what the findings are,” Baten Caswell said.
She also voiced concern about the proposed minimum three-year monitoring period, which could involve requests for more information, site visits and interviews. While three years is “reasonable,” she said, “forever is probably impossible for us to support.”
Other board members noted that the monitoring period does have an end point — when the district is found to be in legal compliance, the resolution agreement states.
The trustees agreed with McGee that it’s reasonable to seek assurances from the Office for Civil Rights that it will respond to the district in a timely manner. District leadership has expressed frustration in the past that these investigations lasted for several years and that during those years, there was infrequent communication from the Office for Civil Rights.
McGee also proposed asking the federal agency to give 30-day notice before visiting the district to interview students and staff and that the notice include the specific purpose for the interviews, the specific students or staff to be interviewed and the expected length of the interviews. This proposal stems from the district’s past experience, he said, when the agency visited the district to interview staff who “felt extremely vulnerable and often discussed, ‘Should I get my own lawyer?'” McGee said.
Dauber called this position “unnecessarily defensive” and urged district leaders and staff to see the Office for Civil Rights’ involvement in the district as a positive, not a negative.
“I think it’s important and very positive … to see the role of OCR here as supportive of our efforts to provide a safe, educational environment for all of our students,” Dauber said. “To the extent that we haven’t done that in the past, which is what gave rise to the findings, we owe it to our students and to our obligations under federal and state law to correct that and to go forward and do better.”
McGee will bring the board’s input to his next meeting with the Office for Civil Rights on Jan. 19. The district’s new law firm is supporting the district in the process and has already started to work on policy revisions proposed in the resolution agreement, staff said Tuesday.
The district has also started work to develop an anonymous tip line for students and parents to report concerns about sexual harassment or sexual violence, McGee said.
The district intends “in large part” to fully comply and cooperate with the Office for Civil Rights, McGee said. He did not recommend any changes to the agency’s other reporting and investigatory requirements, which include to provide staff training on Title IX and investigations and to conduct a student and parent climate survey focused on sexual harassment and the district’s response and prevention efforts, among others.
“We all want to do what’s best to protect the safety and security of our students,” he said. “This is not adversarial.”
The district has until March 7 to respond to the draft resolution agreement, but McGee said he intends to return to the board for approval in February.
The first half of this article is quotes of trustees making sense, putting the kids first, and intelligently solving problems. Yay! Finally. The second half makes me wish Subramanian had not withdrawn from the board race.
There is a reason that there is a long statute of limitarions on child molestation. The pain any victim would have felt would likely have been compounded by hurtful kneejerk defensiveness by staff, who still seem to be immersed in a culture of putting first covering their butts from all embarrassments, real and (mostly) imagined. It could be very difficult to get anyone who may have moved away because of a child being hurt and untrustworthy response by the district to even call a hotline. It will be very difficult to find the people who were most hurt through reviewing complaints on the district side because of what I’ve observed as active attempts by certain upper level personnel to whitewash records and even insert damaging false material to make families and even children look bad (with no recourse to make corrections, plus retaliations if they try). In my own experience, parents whose kids were hurt the worst in special ed situations, where they left because if it, realize that their efforts aren’t even helping anyone else by fixing the system, since staff don’t really want to fix the system or restore trust. How do we get people who experienced that to come back and talk to us about what they experienced?
(Can someone please explain to staff that if parents were out to get them, there would be far more lawsuits, where the amount of disclosure in the duscovery process would be so unimaginably intrustive, they’ll long for the OCR – and the district employees could not only no longer avoid complying with records laws, employees may have to turn over personal records, diaries, etc., and if the employees hired a lawyer, it would only mean their own lawyer would charge them $300/hr to explain why they had to comply with the discovery process. I almost wish there were more parents suing because of the discovery process, and disincentivizing the secretive culture and illegal flaunting of records laws.)
Great news that we have finally moved beyond the Barb Mitchell/Dana Tom/Camille Townsend era of resistance to civil rights in PAUSD. Good to see that Melissa Caswell is firmly in the minority. She is a big reason that the district didn’t fix the problems after the first OCR findings 4 years ago. It’s not surprising to see that she is a dead-ender but it doesn’t much matter since she is the only one.
Great to see the new board working so well together but when it comes to the school district sanctuary thing, well, gosh, it’s a shame we can’t do better to protect ourselves and our kids!
None of us’ll ever be safer till we actually change minds in “Trump territory”—where they see minorities differently than we do, think differently, even watch different news than we watch!
We oughta do something that’ll give us the REAL “sanctuary” of having fewer enemies in the world!
Why not offer to become a “Sister School District” to a town somewhere in a “red state”? Like in Western Virginia, where school kids are falling behind because their parents have been taken down by opioid addiction (many because of injuries in the mines).
Check out PBS: http://www.pbs.org/newshour/bb/west-virginia-school-caring-students-addicted-parents-cant/
Some of the kids there, with parents strung out at home, are asking principals if they can stay at school over the weekend! Talk about wanting sanctuary!
We’ve got so much know-how here in Palo Alto–parents who’re experts on preparing for college and getting into it. Our know-how is what these beat-up communities need, and we’d be doing ourselves a favor by putting a dent into that huge demographic that voted for him: folks without college degrees.
Our sanctuary resolution is good; it’s nice for the kids to know we have their backs. But really!—we oughta have our OWN backs! By doing something where it will really create change!
Otherwise, aren’t we just staying in our “bubble”? Just like the other side is?
How nice to have a school board that finally takes responsibility and ownership of the school district’s problems instead of stupidly blaming a federal agency.
The most important thing about that meeting was that it happened in public. Ken Dauber and the Weekly are to be commended for forcing these issues into the public where they belong. The discussion happened in public where it belongs and the public now can see and evaluate the performance of the board members and staff. Just having it in public is driving them to do the right thing for the most part. And for Melissa Caswell, it is exposing to voters who she really is and that she does not really support civil rights for students. She once again repeated myths and falsehoods about government overreach and misconduct and tried to narrow the scope of the agreement. Melissa Caswell poses as a Democrat in the community but says things that are aligned with Republicans — and not just any Republicans but the Jim DeMint, Lamar Alexander, Jeff Sessions Republicans. She is advocating positions that are anti-Obama, anti-civil rights, and anti-rape victim and trans students. She is an enemy of Title IX and disabled and minority bullying victims. She protects the powerful against the powerless. She should not be on our school board. If voters knew who she really was, she would not be.
And now at least that is happening in public instead of behind closed doors. All you Palo Alto Democrats and liberals who think that Melissa is your friend, she is not. Watch the tape. Let her know that this is a community that supports civil rights not abusive teachers.
Melissa Caswell put Phil Winston into a special ed classroom and then hid the fact that he was a sexual harasser from the public and probably from OCR too. She should be shut down.
Ed,
Yours is an unfair rant. Calls at Tuesday night’s board meeting for information and clarity TO HELP PAUSD KNOW HOW TO BEST HELP STUDENTS is not a right wing takedown.
What I find odd (I am a social justice activist just so you know where I am coming from) is that the OCR already has its findings but won’t share them; it went over them with Dr. McGee. But it won’t send them over for the board to see nor will it look over the notes Dr. McGee took during their conversations to see if he captured them accurately. Ironic given that OCR’s Resolution Agreement calls for PAUSD to share its notes and findings with the OCR before OCR signs off on PAUSD’s action plans – a perfectly reasonable request. OCR should do the same by sharing what it found during its investigations before PAUSD signs off on OCR’s action plan.
At Tuesday’s board meeting someone mentioned University of Virginia. The first thing that pops up on this is from the Washington Post, which I assume you will agree did a phenomenal job covering the election (not a right wing or a fake news outlet). WA Post, “In secret letter, feds sternly criticized U-Va. for handling of sexual violence” (March 5, 2016).
WA Post reported that, after a 4 year OCR investigation, UVA had to put heavy pressure on the OCR to get a copy of the OCR’s Findings Letter BEFORE UVA signed the Resolution Agreement. It took a 41 page, single-spaced memo to the US Secretary of Education AND lobbying help from VA’s 3 highest office Democrats including US Senator Tim Kaine, Hillary Clinton’s VP choice.
It got it. (The WA Post posited whether the Governor and Senators’ intervention was why.)
What did the college find? An OCR letter that was riddled with “significant” inaccuracies. OCR took back the letter it said for “accuracy reasons” and ended up cutting out 2/3rds of the possible violations it originally IDed and the detailed case studies. OCR also revised its conclusion, issuing a “milder” assessment of UVA’s actions than the one it had made based on the inaccurate information.
WA Post asked OCR whether OCR often changed its findings. Apparently not often. OCR would not divulge how often it happens.
UVA did not mince words as to why it is important that OCR issue its findings letters in draft BEFORE resolution agreements are signed:
First, OCR’s procedures call for it. “The process of withholding notice of findings until after a resolution agreement is signed is inconsistent with longstanding OCR guidance that states ‘OCR always provides the school with actual notice and the opportunity to take appropriate corrective action before issuing a finding of violation.’ (2001 Revised Sexual Harassment Guidance.)”
Second, not doing so lacks opacity and due process.
“The University is troubled by the fundamental lack of due process [with] OCR’s practice of withholding notice of findings until after a resolution agreement is signed [which] undercut the most fundamental concepts of due process…the opacity of OCR’s process undermines the core of what we are trying to accomplish as educators dedicated to eliminating sexual and gender-based harassment and violence.”
“We are left in a very difficult position: OCR’s process forces institutions either to enter blindly into a resolution agreement without evaluating or seeing the written findings, or to reject the resolution agreement …in order to …dispute the findings (even when, as in this case, we are prepared to accept all proposed compliance remedies).” http://apps.washingtonpost.com/g/documents/local/aug-20-2015-letter-from-the-university-of-virginias-president-to-the-us-department-of-education/1888/
Third, holding it back does not let schools correct misinformation before the media and press unwittingly share it. https://www.scribd.com/doc/301513797/Aug-20-2015-U-Va-memo-to-the-U-S-Department-of-Education
The Weekly reports that PAUSD can appeal if it doesn’t like what is in it. The Weekly should check its source because the OCR’s Manual’s appeal rules I found don’t say that. Those rules only apply to complainants who did not present enough information to make a claim. https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf
Did I really read this right? The board just gave the OCR a blank check?
I thought the board was trying to reign in costs not give carte blanche to unscoped investigations with no oversight. What about doing their job?
@Ed,
Pleae recall that there were not very many candidates for school board this time around. Caswell barely eked out a victory over the other incumbent, Emberling, both of whom got such a low number of votes compared to Collins and DeBrienza, if the only other mainstream candidate running, Subramanian, had not withdrawn from the race, he would likely have beaten Caswell given that he got so many votes even as a non-candidate (his name was still on the ballot). Even the candidate who runs every year just to run but does not compaign got a lot of votes in comparison to incumbents. There were no other candidates for the three open spots. Usually it’s not worth running against two incumbents for what would otherwise effectively be one open spot.
So the voters hardly gave Caswell a pass much less a mandate. You would think she would reflect on that, but no.
It was really great to see the PALY principal informing the freshman about things that may seem obvious to adults, but kids need to hear. They need to keep this format! Also sending the rally notes home helps parent be part of the team supporting a safe campus.
Bottomless pockets,
OCR has asked PAUSD to investigate back to 2007. Dr. McGee said that PAUSD does not keep tabs on the whereabouts of students and staff who have moved away or graduated and so asked the board to OK limiting the agreement to those who are in district now, I guess to avoid the cost of hiring a PI to track them down. http://www.boarddocs.com/ca/pausd/Board.nsf/goto?open&id=AFCPNE656C27
Melissa Caswell was trying to understand the scope of the work better. Todd Collins, who ran mostly on promoting fiscal conservative-ism, asked about what the OCR wants the private investigator to do but didn’t ask about cost specifically or come up with ideas for cost-effective alternatives that Dr. McGee could pass by the OCR when he chats with them next. Both Jennifer DiBrienza and Ken Dauber had no objections. But it is early. This is just the first meeting the board has had on this.
The only other thing I’ve seen – and it is not official – was a post a few days back on OCR’s requirement that PAUSD hire an independent investigator, which apparently is highly unusual. It suggested that outsourcing this work could cost PAUSD at least $250,000.
Without the summaries that PAO deleted:
From UVA’s August 2015 letter to the US Secretary of Education mentioning OCR’s procedures:
“The process of withholding notice of findings until after a resolution agreement is signed is inconsistent with longstanding OCR guidance that states ‘OCR always provides the school with actual notice and the opportunity to take appropriate corrective action before issuing a finding of violation.’ (2001 Revised Sexual Harassment Guidance.)” Here is the document that that OCR quote is from: http://www.nccpsafety.org/assets/files/library/Revised_Sexual_Harassment_Guidance_2001.pdf
From UVA’s August 2015 letter to the US Secretary of Education mentioning “opacity” and “due process”:
“The University is troubled by the fundamental lack of due process [with] OCR’s practice of withholding notice of findings until after a resolution agreement is signed [which] undercut the most fundamental concepts of due process…the opacity of OCR’s process undermines the core of what we are trying to accomplish as educators dedicated to eliminating sexual and gender-based harassment and violence.” http://apps.washingtonpost.com/g/documents/local/aug-20-2015-letter-from-the-university-of-virginias-president-to-the-us-department-of-education/1888/
From OCR’s Case Processing Manual section on Appeals:
“OCR affords an opportunity to the complainant to appeal OCR’s letters of finding issued pursuant to CPM subsection 303(a).” https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf page 23.
The person filing the complaint is the complainant. The school district named in the complaint is the respondent. Section 303(a) is entitled “Insufficient Evidence Determination.”
From the PAUSD Board packet on what Dr. McGee said about costs:
“While we agree with the principle of hiring an independent investigator and have that individual approved by OCR, we would like to limit the investigation to students and staff who were and currently still are attending or working at Palo Alto High School. …Tracking down students who have graduated and staff who have left will be time-consuming, costly” http://www.boarddocs.com/ca/pausd/Board.nsf/goto?open&id=AFCPNE656C27
On fiscal conservatism: the board members, including Caswell, who decided to fight OCR ended up giving the taxpayers a double bath of wasted dollars. First, they misspent hundreds of thousands of taxpayer dollars on legal fees, including over $50,000 on a completely inane and futile lobbying effort. Second, they made sure that the district wouldn’t improve in dealing with discrimination, so now we have a second sight of violations and findings that have to be cleaned up after.
How much money do Caswell and other dead-enders want to spend fighting OCR as opposed to cooperating to benefit students and clean up the mess they made?
D-E D,
This is about steps forward.
No one is “fighting” the OCR. This is a negotiation so it is appropriate, and expected, for PAUSD to ask questions and enter into a give and take with the OCR. Otherwise the OCR would have just sent a take-it-or-leave-it offer and not have generously given PAUSD 90 days to work with them on it.
Be careful who you blame for this “mess.” I and many had hoped that Ken Dauber, who ran on a platform of improving all things civil rights related so we would no longer need the OCR’s help, would have straightened things out during the years he’s been on the board and policy committee. I know he’s been trying but there still are problems; the OCR lists policies that need re-writing and mentions 2 alleged incidents of sexual harassment at Ohlone and Paly as well as allegations of an inappropriate relationship at Gunn in December of 2015, all since his coming on the board.
Consider that perhaps a school board and administrative staff cannot stop these things from happening but rather that the best they can do is work to reduce their frequency and act quickly when they do happen so they end quickly too.
Based on what McGee said at the board meeting, OCR has told the district the findings that are the basis of the resolution agreement. I doubt if there are any surprises: failure to investigate the harassment reported in Verde rape culture articles, putting Winston in a special ed classroom, not doing an appropriate Title IX investigation of Kevin Sharp at Paly, not protecting the Gunn student against harassment.
3 cents is reading from the same obstructionist playbook as the old board: red herrings rather than agreeing to investigate what happened and fix it.
I will hold Dauber accountable for how he handles this situation just like the other board members.
As a parent, I want honest closure and full transparency, regardless the cost. There is simply no way to know if our children are safe if we don’t come to understand the staff and leadership mistakes that lead to these problems in the first place. Spend all the money you have.
We have to find the truth.
And if there is an effort to assign blame/costs/whatever, it clearly falls upon the prior board and management that caused these problems. The investigation to find the truth would have been free had they simply not covered up their mistakes. So the correct attribution of cost lies with the original perpetrators.
That we must pay it today is essentially acknowledging that their cover up was a waste of our future tax dollars, and irresponsible on their part.
But it is a cost that must be paid, and pay in full until we know the truth.
I am concerned that so many of the board members superficially and uncritically accepted the full OCR smorgasbord of recommendations, with out any real discussion of potential costs of investigations, which could be high due to anonymous tips (which could be malicious or bogus). Seems like if members don’t toe the orthodox line, they get branded anti-civil rights.
I am also concerned how much time some board members spend texting back and forth during meetings with — who? Spouses? Other unaccountable advisors?
And I’d like to remind “Ed” and others that school board positions are non-partisan.
More red herrings from the Old Guard perspective:
— “malicious or bogus tips”? What?
— Board members texting with “unaccountable advisors”? Or spouses? Or with their kids at home? Or maybe…Putin? Or maybe nobody, as I watched the Tuesday meeting and didn’t see mad texting going on.
— Non-partisan school board positions doesn’t mean that school board members don’t have political affiliations or commitments. Barb Mitchell’s libertarianism was well known for example.
Thank goodness the voters figured out how to stop the mess, and sent Dauber, Debrienza, Collins and Godfrey to the board over the last two elections, rather than Foster and Emberling.
Well I don’t know if some board member is surfing the internet because they were board with listening to Camille prattle on and on about nothing in Trumpian disjointed rambling that went nowhere. I don’t care.
The last time the board discussed OCR, they did it behind closed doors and no one knew who they were talking to or what they were saying. At least now the discussion is happening in public.
Thank goodness for the new board. Now if we can just get rid of Caswell and her anti-civil rights views.
Between this, classrooms without permanent teachers, subs quitting every other day, insane truancy policy, really poor communication and transparency on implementing/enforcing new policies…Lots of room for improvement.