News

District flipped sides in Gunn sexual harassment case

After initially barring boy from robotics, school district entered agreement allowing his return. Now both families are looking for help from the courts.

A 16-year-old Gunn High School male student banned from the robotics team after being found to have sexually harassed a female classmate has fired back in new court documents, alleging the school district's enforcement of her rights violated his rights as a special-education student.

The female student, also 16 years old, turned to the courts to order the school district to reinstate the robotics ban, which was reversed by the district in January as part of a settlement negotiated with the boy's family, court documents filed Friday show. Both students are minors, belong to the robotics team and dated briefly.

The school district now finds itself in court and will have to account for how it upheld two distinct federal laws both meant to protect the civil rights of students: gender-equity law Title IX and the Individuals with Disabilities Education Act (IDEA).

Alec Rose, a Southern California attorney who has built a legal practice around defending high school and college students and faculty accused of sexual misconduct, filed a motion to intervene on behalf of the boy, who is identified anonymously as John Roe in court filings. In an emailed statement, Rose characterized his client as a "polite, respectful and very quiet young man" who did not want to enter into this lawsuit.

The male student has a "significant pragmatic speech disability," which the district determined in 2016 entitled him to special education services, court documents show.

Crystal Riggins, who with Laura Riparbelli of San Jose law firm Hoge Fenton Jones & Appel represent the female student, said that they feel there are "inaccuracies and mischaracterizations" in the boy's court filings but declined to comment further.

Following an investigation last fall after the girl alleged the boy sexually harassed her, the school district found that text messages he sent to the girl and comments he made about her to other students constituted sexual harassment and decided to remove him from robotics team activities so he and the girl could avoid contact.

In December, the boy's mother sought to block the district's action by filing a complaint with the California Office of Administrative Hearings, the process through which special education disputes between families and school districts are resolved.

The district and the boy's mother ultimately reached a mediated agreement in mid-January, giving him access to robotics team activities so long as an additional staff member, such as an escort, is present. This reversal prompted the girl's family to file their legal motion in late January, which resulted in a temporary no-contact order that prohibits the male student from attending robotics.

View a timeline of events in this case here.

Upon learning of the court order, Rose filed papers last week to intervene in the case on behalf of the boy. He argued that the school district failed to comply with federal law, which states that when inappropriate behavior is a manifestation of a disability, the district cannot implement discipline greater than or equivalent to 10 days, according to the court filings. In November, the district prohibited the boy from participating in robotics for the remainder of the school year, starting in January, but apparently failed to conduct the required "manifestation meeting" to determine if the harassment stemmed from his disability, according to the court documents.

The boy "suffers and will suffer irreparable harm if the January directive (between his family and the district) is not reinstated," his attorney wrote. "He is being deprived of his educational opportunity in violation of the IDEA and the mediation agreement."

The girl also alleged that the boy sexually assaulted her off campus in January 2018 — which he denied, according to his court documents — and she then ended their relationship, according to her petition. The district did not investigate this allegation "as it occurred away from school," Title IX Coordinator Megan Farrell wrote in an Oct. 23 outcome letter for the case.

According to Rose, the girl reported her allegations to the Palo Alto Police Department, which conducted an investigation before sending the case to the Santa Clara County District Attorney's Office. The boy denied the allegations and submitted to a police interview, including providing thousands of text messages with her as evidence of "their mutual desire for sexual activity," court documents state.

The district attorney did not pursue charges in the case, according to Rose's court filings on behalf of the boy.

The judge overseeing the current case set a new hearing for early March, also postponing the school district's required response to the girl's petition, which was initially scheuled to be filed on Friday, Feb. 8. The new deadline for the district is Feb. 22. In the meantime, the boy will not be permitted to participate in the robotics program.

The district has proposed that "this matter be submitted to mediation in the hopes that all claims relating to the students can be resolved informally and without court intervention," Superintendent Don Austin said.

Citing privacy restrictions, district officials have declined to comment further on the case or explain why the district negotiated an agreement with the boy's family that reversed its earlier actions of removing the boy from the robotics program.

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Comments

30 people like this
Posted by Ed B.
a resident of Professorville
on Feb 11, 2019 at 11:08 am


It is very disappointing that the district seemingly and based on this news report failed to follow its own policy and investigate the alleged sexual assault. The district's Sexual Harassment Policy (BP5145.7) provides that such alleged incidents "shall" be investigated if "if the effects of the incident may result" in on campus harassment. Any sexual assault by one student of another "may result" in such conduct, which is why the Uniform Complaint Procedure (AR1312.3) provides that sexual harassment and other discrimination complaints "Such complaints shall be investigated using this procedure regardless of whether the alleged harassment occurred on or off campus."

Current Trump Administration guidance on this issue re-affirmed existing guidance that "Schools are
responsible for redressing a hostile environment that occurs on campus even if it relates to off-campus activities." Requiring a student to attend a class or activity with a student who sexually assaulted them would create a hostile environment for that victim, regardless of whether an "escort" is present. What is the escort going to do to prevent the emotional trauma that a victim would experience from having to be present in an activity with their assailant?

Although the Trump Administration has proposed altering the law to block colleges and schools from investigating off campus conduct, those rules are not yet the law and may never be the law. Over 100,000 comments were submitted to the Department of Education protesting these new proposed rules -- particularly the proposal to require schools to look the other way at off-campus conduct. Educators have united against this proposal -- which is not yet law -- because it will have devastating ramifications for schools' ability to maintain a safe environment for all students.

For example, the AASA, the Association of School Superintendents, issued a devastating critique on this proposal, saying: "we are shocked by the change in the proposed regulation that would take away the ability of districts to initiate an investigation because the sexual misconduct occurred online or off-campus. . .Why
limit how districts can respond to sexual harassment that occurs outside of an education program or
activity, when our districts are already responding to other forms of misconduct that occur outside an
education program or activity when it impacts a student’s ability to feel safe and learn?"

Web Link

Following the recently-ended Notice and Comment period, the Trump Administration will respond to comments. Then there will be extensive litigation. For all practical purposes, these rules are very unlikely to ever go into effect if the Trump Administration loses in 2020. Thus, it is disconcerting to see in this story the quote that PAUSD refused to investigate this allegation even though it was timely reported, and even though current district policy requires its investigation because "it occurred away from school."

All across the country colleges and universities have declared that they are not going to change their policies or procedures until and unless these new rules go into effect. PAUSD should follow suit. At this time, PAUSD should continue to follow its own policy, investigate off campus incidents that "may result" in harassment on campus. If the assault is substantiated, then the district should take steps, as required by policy, to ensure that the victim does not experience a hostile environment.


66 people like this
Posted by The Public Interest
a resident of Charleston Gardens
on Feb 11, 2019 at 11:17 am

I wonder how a case of a speech disability could be considered to manifest itself in behavior that is deemed to be sexual harassment.

Also, is a speech disability a justifiable reason to sexually harass or sexually assault someone else?

If someone expressed an interest or attraction in someone else, does that give one of them cause to sexually assault or sexually harass the other?

If the District did not go through proper procedures, like not holding a required manifestation determination hearing, then I hope they will be held accountable for that.

I also hope they will be held accountable for not following state and federal anti discrimination laws --- and not giving the girl the appropriate access to her education.

And yes, this is the District's job to do so, all of it.


44 people like this
Posted by Super Confused
a resident of Downtown North
on Feb 11, 2019 at 11:41 am

The boy's family and boy are claiming because of his ""significant pragmatic speech disability,"..it led to his causing SEXUAL HARASSMENT and bullying?? Seems like a really far stretch where they are grasping at straws.

His family hired a [portion removed] lawyer who is experienced in these matters.. and takes a speech disability ... and uses that as an excuse for sexual harassment?

What an unbelievable excuse. [Portion removed.]


23 people like this
Posted by The Public Interest
a resident of Charleston Gardens
on Feb 11, 2019 at 12:14 pm

I see --- is this because the District failed to implement the boy's IEP properly that they are backing off and less willing to discipline him? (and of course because the boy's family took the District to court)

Check the Ed Code for this under suspension and expulsion for disabled students; if the District doesn't properly implement the disabled student's IEP, then the District cannot administer the same level of discipline.

So then, is it because of the District's own failure (which the District will say they can't divulge due to student privacy laws) that now the District is backing the boy and the girl cannot fully access her education?




30 people like this
Posted by Gunn Alum
a resident of Mayfield
on Feb 11, 2019 at 12:29 pm

I want to join others on this thread in expressing absolute outrage that the district would entertain a settlement with the offender's parents. I am beyond furious at the suggestion that a speech impairment excuses sexual assault and sexual harassment. The position of the district is fundamentally untenable—there is no balancing of interest to be done here, only swift action to protect our community from harm. [Portion removed.] PAUSD has brought shame to our city in its failure to adequately respond, and I dearly hope that our officials will be held accountable both by the courts and by the court of public opinion.

[Portion removed.]


4 people like this
Posted by Anonymous
a resident of Barron Park
on Feb 11, 2019 at 12:49 pm

[Post removed.]


24 people like this
Posted by Manifest Determination
a resident of Jordan Middle School
on Feb 11, 2019 at 1:09 pm

Angry as it may make readers, there truly are disabilities which the child does not understand they are using inappropriate speech and communication. This could be autism, or it could be a social communication disability on it's own.

The school district evaluated (tested) the boy, and found he has a significant social pragmatic speech disability. That means his ability to USE language is so impaired it constitutes a disability. He cannot communicate appropriately.

Knowing this, under law the District had an obligation to teach the boy appropriate communications. If it could not, the district was required to protect both him and other students by providing him an aide, or placing him in a separate program away or at a different school trained to teach his disability. These steps protect everyone.

By definition, the District did not appropriately teach the boy or place him in a safer setting. This is self evident in that it found the student guilty. The District knew the risk and did not mitigate it appropriately. This could be a cost saving measure, an unwillingness by the District to admit to it's evaluation results and provide services, or just PAUSD's lack of appropriate services for one of the most well understood and treatable disabilities there is. Really, there are programs and treatments in abundance, but you do have to implement them scientifically.

In terms of legal process, it is unimaginable the District was so remiss it did not hold a Manifest Determination Hearing. It knew the accused had the disability that caused exactly the behavior he is accused of. With the District's massive spending on lawyers, what was their lawyer thinking? Both Special Education staff and their attorney's should have known of this very basic requirement.

A Hearing would have protected everyone's rights, and prevented the situation we have now: readers condemning him for intentionally being at fault without giving him a fair hearing or due process.


24 people like this
Posted by Move the boy
a resident of Duveneck/St. Francis
on Feb 11, 2019 at 1:36 pm

Move the boy is a registered user.

If the boy's speech disability is so severe that he is sexually [portion removed] harassing students, then he can be moved to a special education school to better serve his needs at the district's expense.

However, the district would rather force the victim to deal with the boy then to have to pay to have the boy properly educated and dealt with appropriately. That is their typical response. Leave the assailant, let the victim go through the humiliation as it is cheaper for the district. They have no regard for the girl's well-being.

[Portion removed.]


21 people like this
Posted by Parent
a resident of Adobe-Meadow
on Feb 11, 2019 at 1:55 pm

It is strange how strongly people react to reports based on one-sided legal filings - first the girl's attorneys and now the boy's. It seems likely that both are overstating their case and leaving out information that weakens it. I can see why the Weekly has to publish this - it isn't their fault it is one-sided and limited. But I don't get why people feel they have to take the bait and get outraged, when it seems likely that all the facts aren't out yet.


30 people like this
Posted by Dishonest
a resident of Downtown North
on Feb 11, 2019 at 2:39 pm

The reason the District didn't do as @ Manifestation Determination states is it frequently shortchanges students with disabilities. The District and the teacher's union has a financial incentive to shortchange disabled students.

The district doesn't want to put disabled students in other outside programs, because that will cost money, money that then goes to outside programs, money that then won't go into the pockets of teachers and administrators and staff at PAUSD, money that the teacher's union wants to hold onto and keep within PAUSD for their own benefit, even if certain students can't be served within PAUSD.

So, as a result, students with disabilities may be shortchanged, not provided services, and not sent elsewhere when they can't be properly served, which can then ENDANGER other PAUSD students.

Thanks PAUSD and the teacher's union.

And please, let's not say we should give them the benefit of the doubt and there isn't enough money. The District is obligated by law to provide these services, but they try to find every which way not to. This is why so many special education families feel the district lies and tries to screw them. They don't deserve the benefit of the doubt while they shortchange one group of students and endanger another group.


14 people like this
Posted by cmarg
a resident of Palo Alto High School
on Feb 11, 2019 at 3:14 pm

cmarg is a registered user.

Did you read this portion.... everyone is focusing on the disability:

"According to Rose, the girl reported her allegations to the Palo Alto Police Department, which conducted an investigation before sending the case to the Santa Clara County District Attorney's Office. The boy denied the allegations and submitted to a police interview, including providing thousands of text messages with her as evidence of "their mutual desire for sexual activity," court documents state.

The district attorney did not pursue charges in the case, according to Rose's court filings on behalf of the boy."

If the boy submitted texts about their mutual desire.... am I missing something here?


5 people like this
Posted by The Public Interest
a resident of Charleston Gardens
on Feb 11, 2019 at 3:32 pm

@Cmarg:
yes, think you missed that that was according to the boy's advocate. No independent confirmation.

And sending text messages to someone doesn't entitle someone else to sexually assault or sexually harass the one who texts.


12 people like this
Posted by WaitAMinute
a resident of Crescent Park
on Feb 11, 2019 at 3:47 pm

Public Interest et al:

Cmarg may have brought up something that merits greater attention and not the quick putdown.

> thousands of text messages...evidence of "their mutual desire for
>sexual activity,"

That's a lot of text messages...and apparently they were reviewed by the PD and DA's Office...and as much as we learn of that from the boy's attorney, it is not something that can be faked or misrepresented.

We can argue back and forth...and vent this way and that...it looks like the two kids, with or without foreknowledge, have to explain themselves to others and live with the consequences of their acts of omission and commission for the rest of their lives.

In these litigious times it's easy to damn and take it out on the teachers and administrators...for faults small or large...when we would be doing better by looking at all the parties involved: the students, their peers, the teachers, administrators...


Like this comment
Posted by Negligence
a resident of Another Palo Alto neighborhood
on Feb 11, 2019 at 4:02 pm

[Post removed.]


25 people like this
Posted by Ed B.
a resident of Professorville
on Feb 11, 2019 at 5:04 pm

I posted above about the failure of PAUSD to investigate the alleged off campus assault. This violated its own policy and procedure, as well as violating current OCR guidance.

One of the unfortunate ramifications of this failure, discussed above, is that the district was able to pretend that somehow sending an "escort" to the activity would prevent a hostile environment. But if the alleged victim was actually sexually assaulted, that is an obviously totally ludicrous idea.

Another ramification is that the district is now asking the court to order the alleged assault victim into mediation with her alleged assailant. Mediation is never appropriate in cases of sexual assault -- much less court ordered mediation which is not voluntary and cannot be ended when the victim chooses.

This is disgusting. Perhaps this is why Ken Dauber voted NO to the request for mediation.


8 people like this
Posted by ferdinand
a resident of Barron Park
on Feb 11, 2019 at 5:09 pm

I hope this can be settled quickly with the least amount of further damage to either teen. Relationships between adults are difficult enough, let alone between two young [probably] inexperienced people. I'm surprised by some of the quick assumptions of guilt posted here without having full disclosure of details [which isn't possible] and judicial inspection of the case. Perhaps the district was premature in declaring, "It probably happened"?

- Didn't an earlier article state the police reviewed the original case and deemed they would not consider it? Does that mean there wasn't adequate evidence to confirm the accusation?
- If so, why did the school district take this approach despite knowing the police did not believe there was a case? And is that why they had to reverse their decision?
- There is no excuse for any sexual assault, but since the district didn't conduct a "manifestation meeting" it seems unfair to make assumptions on whether the boy's communication disability is irrelevant. Who knows whether he suffers from PTSD, mild autism, etc.
- Until anything is decided, why couldn't both teens be allowed to work on alternate days on the Robotics team, thus removing any face-to-face contact? I think they meet after school and this could have been a viable solution until the case is settled.


9 people like this
Posted by The Truth
a resident of Another Palo Alto neighborhood
on Feb 11, 2019 at 5:37 pm

We do not know the particulars. What if the boy had a history of using the speech impairment as an excuse or even a way to cover for bullying others? It wouldn't be the first time in this district. If so, the district really becomes part of the abuse by never getting to the bottom of things and just enabling it.

Apparently there was no trouble communicating through thousands of text messages or demeaning the girl to peers afterwards, so it is hard to understand how anything like that could justify assault.

I do think it matters that there is more truth-finding before anyone proposes mediation. Mediation only works ig both parties are acting in good faith. If one is using the process to further injure another, or just to further lie (because mediators do not enforce or even opine on law), mediation may do little more than allow another chance to revictimize whomever has been hurt.


7 people like this
Posted by Irrelevant
a resident of Duveneck/St. Francis
on Feb 11, 2019 at 5:39 pm

Irrelevant is a registered user.

[Post removed due to same poster using multiple names]


10 people like this
Posted by Seriously?
a resident of Green Acres
on Feb 11, 2019 at 7:59 pm

[Portion removed.] I am the mother of 2 young women who both graduated from Gunn and the safety of girls is very important to me. [Portion removed.] I suggest we all withhold judgment and wait for a proper investigation of the facts before we jump on the bandwagon of accusation and vilification.


2 people like this
Posted by Irrelevant
a resident of Duveneck/St. Francis
on Feb 11, 2019 at 8:45 pm

Irrelevant is a registered user.

[Post removed due to same poster using multiple names]


11 people like this
Posted by NoMoreCoedEd
a resident of Downtown North
on Feb 11, 2019 at 10:16 pm

This district is spending far too much on sex harassment/assault matters. It's time to get kids back into uniforms and separate them into boys and girls schools.


22 people like this
Posted by Sanctimonious City
a resident of Barron Park
on Feb 12, 2019 at 11:17 am

Sanctimonious City is a registered user.

To state the obvious, for the cost of a dedicated PAUSD high power legal team and Title IX Director we could probably afford a teen relationship counselor, a special needs support specialist, two additional teachers in the classroom and a brand new robot.

Liberal Progressive policies inevitably face inward and cannibalize themselves. As Robespierre pointed out before the revolution turned on him and then dragged him to the guillotines:

"Let him beware who should dare to influence the people by that terror which is made only for their enemies!"

Or, in more Biblical terms, you simply reap what you sow.


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