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School board needs to open up discussion of OCR rulings

Original post made on Aug 23, 2013

Eight months ago our community learned that the U.S. Department of Education's Office for Civil Rights (OCR) found that Palo Alto school district violated the civil rights of a disabled middle school student by failing to protect her from harassment based on her disability. (The OCR is the branch of the Education Department that ensures that schools and colleges follow federal civil rights laws, by investigating complaints and assisting districts in complying with the law through activities such as training and review of policies).

Read the full guest opinion here Web Link posted Friday, August 23, 2013, 12:00 AM

Comments (31)

Posted by Addison mom
a resident of Addison School
on Aug 23, 2013 at 10:23 am

I agree with this editorial. Let's make sure that our schools work for all of our students. Being defensive to protect staff members or support the conservative politics of school board members is beside the point.

Posted by District not cooperating
a resident of Barron Park
on Aug 23, 2013 at 11:34 am

Do not forget that now the ones not cooperating with OCR investigators is the school district. They are not allowing OCR investigators to speak to other children involved in the cases, therefore the OCR complain based on race, was not complete. If district had allowed to interview the other student and her parent, the outcome would have come on behalf of the students. PAUSD is using all the resources to keep investigators away because they are afraid they will bring out the truth. On the first one, they did not, because the completely thought the persons making the complain had no idea of what they were doing, and PASD felt very confident, now that confidence in droping down. I guess is a good sign, but no the fest for the students and parents who want OCR to come and do what is necessary to do to make a good investigation. Thanks Kevin for this article and for allowing us to have this difficult but needed conversations.

Posted by DUH!
a resident of Greene Middle School
on Aug 23, 2013 at 2:29 pm

This is what parents have been saying for the last two years! Dr Skelly, listen up or find employment elsewhere!

Posted by Paly Parent
a resident of Community Center
on Aug 23, 2013 at 7:19 pm

Thanks for this very thoughtful op-ed.
Hopefully, the board and administration will be able to let go of what seems to have recently been a bunker mentality and instead reflect on how to serve kids who truly need the benefits and strong resources that we parents and residents have provided our district.
We look for to a return to the progressive focus that helped make PAUSD a school system that focused on preparing all of our students for success in life.

Posted by broken record
a resident of Adobe-Meadow
on Aug 23, 2013 at 8:46 pm

Dear Editor,
Don't you find it gets kinda repetitive that the only formal op-eds you can find attacking the district come from one group? You'd think that after all these years, you'd manage at least one other group or individual to come forward and fill your pages. Given the amount of effort you've put into it.
It does lead one to a singular conclusion when you can't vary your op-ed contributors. Oh, well. Continue going round and round.

Posted by you lost, ken
a resident of Another Palo Alto neighborhood
on Aug 23, 2013 at 9:45 pm

time to move on

Posted by JB parent
a resident of Juana Briones School
on Aug 24, 2013 at 12:04 am

Strange to see these juvenile responses to a well thought-out article. It's a sign to me that the "bunker mentality" that a previous poster referred to is alive and well. Here are a few of my observations: an election particularly a close one doesn't mean that "the coast is clear", and there is another election coming up in a year's time. The school board let alone two members - Tom and Mitchell - are not "the district", so Mr. Dauber is not "attacking the district." Actually he seems to be trying to save the district from a particularly dumb course of action we have been set on by Tom and Mitchell.
I agree with the first poster on one point in particular. I was unpleasantly surprised by Ms. Mitchell's memo when I first read about in the Weekly earlier in the summer. I didn't vote for the Tea Party, and I don't like it at all when politicians say one thing in public and something entirely else in private.

Posted by District not cooperating
a resident of Barron Park
on Aug 24, 2013 at 12:20 am

Yes, Kevin lost, but that does not mean that he is going to stop from making Palo Alto Schools a better place for our kids. He did it before he run for the elections, and can do afterwards. Those who think that because he lost he will dissipated you are wrong, so get used to hear his ideas to make PA schools a better place. Yes, we can do better, our children deserve it. We already lost enough children, not including the 2013 graduate from Gunn who died less than a month ago. I am wonder if he was bullied.

Posted by District not cooperating
a resident of Barron Park
on Aug 24, 2013 at 12:23 am

Sorry, sorry, I meant to say Ken, not Kevin. I did not mean to.

Posted by Overdue 4 change
a resident of Another Palo Alto neighborhood
on Aug 24, 2013 at 7:15 am

It's easy to confuse Ken and Kevin. One lost and should have won while the other won and should have lost. 2014 will be Ken's first year in the district and Kevon's last. It's only right.

Posted by Overdue 4 change
a resident of Another Palo Alto neighborhood
on Aug 24, 2013 at 7:17 am

Kevon! Him, too! No, just Kevin.

Posted by your world view
a resident of Another Palo Alto neighborhood
on Aug 24, 2013 at 9:35 am

Ken Dauber,

There are always at least two sides to a story and limitless ways to color it.

Case in point.

You do not share that the first OCR complaint just resulted in a tightening up of some language in the district's policies manual, more assemblies, and the child switching schools as the family requested (tho for some reason it then turned around to sue the district for money too.)

The second claim the OCR dismissed as groundless.

The rest have not been resolved and their proceedings not made public, so no conclusions can be drawn about them.

That’s quite different than how you paint it in your opinion piece.

I don't know the specifics of these cases and fully appreciate that mistakes can be made, bad teachers can be hired, etc. But my point is that you don't know all the facts of their cases either. You also are not privy to any facts about the child’s situation from the district’s perspective because it has to stay mum to protect that child’s privacy. And, as the Brown Act allows, you are not privy to the deliberations with its counsel in reaction to these legal complaints and threats.

It is hard to draw valid conclusions when you have less than ½ the story to work with, isn’t it?

Nothing the public knows reveals a misdirected district and board that do not care about kids. Nothing can be assumed about what happened in private.

Posted by Duveneck Mom
a resident of Duveneck School
on Aug 24, 2013 at 10:14 am

@your world view

The other disability bullying OCR complaints have not been resolved. One is at Jordan the other at Duveneck. They are still being investigated by OCR. The district has not entered into any Resolution Agreements. And OCR just announced a full compliance review of Paly and sexual harassment. There are at least 3 open OCR complaints, and possibly more (has the family that has been protesting special education filed any complaints with the state or federal government).

The first OCR complaint resulted in a finding that PAUSD had violated the civil rights of a disabled child by failing to intervene promptly and effectively to stop the bullying. That is not just, as you say, "tightening up of some language in the district's policies manual." That is a finding that our district violates the rights of the disabled.

I think Mr. Dauber is correct. There is no way to get through this situation without first stopping the bleeding. We do that by publicly facing our mistakes, admitting where we have been wrong, making an inventory of the shortcomings, and getting help from OCR (for free!) in fixing them. If the district adopts and attitude of humility (which it surely should have given the serial nature of the mistakes) then we can get through this with less convulsions and turmoil.

Fighting is the opposite. By denying and resisting and adopting a resentful stance of the wrongfully accused, we will generate more complaints, more mistates, and eventually the only way through this is going to be for Skelly/Young/Wade to fall on their swords and leave. That's not necessary if they would do this the right way but the course we are on leads inevitably to personnel changes.

Disabled children are being bullied and that bullying is being ignored in our schools. Do you think that the parents of those kids are just going to go back to keeping their mouths shut and accepting whatever happens now? The cat is out of the bag.

We need a full public investigation and report, similar to the one Yale did after it the sexual harassment OCR complaints. That's how you get through this without having to fire people.

Posted by JB parent
a resident of Juana Briones School
on Aug 24, 2013 at 10:21 am

@your world view
I appreciate that there is more than one side to a story, but you seem to be coloring this one in a way that is pretty inaccurate.
I read the OCR report when it came out and it made it very clear that school district employees from the superintendent on down didn't follow existing district policies. That includes the principal Katherine Baker and an assistant principal at Terman. Why not? What happened? Tightening up some language in a policies manual that apparently everyone ignores doesn't address that question. Why did the child not receive proper services until the story broke in the paper? Does that reflect an issue with special education services? The whole point of the school board is to be interested in those questions and to follow them up, even though I am sure that some employees would rather "stay mum" about it.
As Mr. Dauber says, we also don't know how many other children and families have been affected by these failures, which are probably still going on because the school board has decided to bury the problem rather than solve it. The fact that more complaints are happening bears that out. It seems to me like the board is more interested in defending school employees than making sure the system works for all of our children.
The other part of Mr. Dauber's article that really captures truth for me is that the school board is wasting time and taxpayer money on trying to figure out how to evade federal oversight of our students' civil rights. Here's the article where the Weekly broke that story, with the headline "In secret, school board weighs not cooperating with federal agency. Board vice-president says Office for Civil Rights is 'strong arming' district into adopting new policies." Web Link
There were also a bunch of stories in the Daily Post last month where Dana Tom, Barb Mitchell, and I think Camille Townsend talked about how it's not fair that OCR is looking at PAUSD.
And since you mention the Brown Act, that doesn't allow secret meetings about whether the federal government has authority in Palo Alto, so Tom and Mitchell are breaking that law.

Posted by your world view
a resident of Another Palo Alto neighborhood
on Aug 24, 2013 at 12:43 pm

Ken Dauber, Duveneck Mom, and JB Parent,

[Portion removed.]

Minor point: What was discussed in the school board's closed session was "closed" so no one besides those who were there knows what was said. The Weekly reported its guess as to what was said there but that does not make it so.

The implications that you draw from what you do not know are serious - that the school board is dishonest, deceptive, etc.

It would help the discourse if you would not make scathing accusations based on rumors and conjecture.

Major point: Why schools are pushing back against some of the OCR's "guidance." There have been many threads in this forum about the numerous constitutional law experts [portion removed] who have problems with the OCR's "guidance."

These experts' concerns have been so serious and the implications so important that reputable publications like the Wall Street Journal have published them.

More is posted here:
Web Link
Web Link

In a nutshell: The OCR states as law substantive things that go beyond what Congress wrote into the Civil Rights Act and so the OCR, the argument goes, is overstepping in role and reach.

You suggest, even so, PAUSD could still follow the OCR guidance to show that it is a team player. This, according to your logic, will end up with kids being in a better place.

That is superficial thinking.

By doing so, these experts warn, you will set in motion unintended consequences which would tromp on students' constitutional rights:

- Due Process (not allowing the accused a meaningful hearing with rules of evidence, unbiased and trained judges, and appeals, and imposing a burden of proof that is akin to a 50:50 guess before life-altering punishments can be imposed), and

- First Amendment (OCR guidance can be interpreted to require districts to monitor and punish off-campus cyberbullying between students if the subject is female, disabled or a minority, which is well over 1/2 the student population)

There also are serious state and federal privacy rules that may be stepped on by the OCR's requirement that districts investigate and push forward on rumors when students don't want to make a claim.

It is easy to see how following the OCR's rule could end up with school districts going into a semi-police-state mode to avoid lawsuits for not being zealous enough. That could mean more litigation than if they didn’t follow the OCR's guidance, putting them between that proverbial rock and hard place.

It is not black and white as Mr. Dauber assets.

Posted by Crackpot legal theories
a resident of Adobe-Meadow
on Aug 24, 2013 at 1:35 pm

[Post removed.]

Posted by parent
a resident of Another Palo Alto neighborhood
on Aug 24, 2013 at 3:02 pm

I think the editorial makes some good points. Federal laws are intended the protect the kids, the OCR generally sees its role as helping districts comply with the law, they only get to enforcement when that utterly fails. They aren't the FBI and penalties are rare (we haven't been hit with any, we've only been pushed a little harder to comply).

An above poster says, "Second, the board should affirm that the district will choose the path of cooperation and collaboration with the federal government on civil rights issues, and cease closed-door discussions about how to resist federal authority."

I agree, and I think the same should go with how the district chooses to deal with parents: cooperation and collaboration. For that, we really do need a different legal team with a completely different worldview.

Posted by Corporate lawyer
a resident of Community Center
on Aug 25, 2013 at 1:05 am

Dauber is giving PAUSD the same advice I or any of my colleagues would. Comply with the law and be transparent about it. It's astonishing to me that the school board would decide to challenge OCR's authority, which is tied to the federal funding that the district receives.
If @your world view represents district thinking, they have gone seriously off course. She is calling into question Title IX on sexual harassment, has mixed up litigation with administration of civil rights laws, and is talking about due process rights with judges and rules of evidence that are appropriate in a criminal context, not in ensuring that school districts are complying with the requirements attached to their funding.
As a taxpayer in the district, paying lawyers to write memos on OCR's authority is the last thing I want to be paying for. You might as well just toss the money onto the playground at recess. At least then some students will get some benefit from it.

Posted by I have a dream
a resident of another community
on Aug 25, 2013 at 1:55 pm

I was very disappointed at the election results in November and watching the Bullying cases play out it only increased. Heidi Emberling is useless. She does nothing and bullying was supposed to be her thing. Camille Townsend is one of those who is resisting OCR. Melissa Caswell just takes up space. People think she's smart (and she certainly seems to agree) but she's not doing anything. Barbara Mitchell's libertarian views are costing us money and no one seems to be able to pull the plug. Ken Dauber is the missing leadership we needed. Who will run next year to supply that voice? We need people who aren't afraid to step up.

Posted by Paly Parent
a resident of Community Center
on Aug 25, 2013 at 4:23 pm

I was at a block party yesterday and there was a lot of conversation among parents around these and other school issues. A recurring question was why the board is not exerting more leadership. A couple of answers were offered.
First, when the prior superintendent was pushed out the strongest complaint was over her autocratic approach. Consequently, an opposite style was embraced with Skelly and the board agreeing to function as a "team". The result has
been an aversion to open debate and discent along with a deference by the board to the administration, even on policy matters. The board often spends a lot of time and words talking about issues without daring to provide direction if Skelly does not agree with them.
Second, there is one board member who is focused and purposeful, Barb Mitchell. Unfortunately, despite her competence, personal likability and commitment, her values are quite libertarian and do not represent the progressive approach that had been a hallmark of PAUSD. We have seen those values reflected in the "site autonomy" credo which has left each school often left adrift. And her opposition to state and federal "interferance" is at the heart of the problems discussed in this thread.
Hopefully, we will begin a discussion about what are our values and how we can achieve leadership to best further those values.

Posted by your world view
a resident of Another Palo Alto neighborhood
on Aug 25, 2013 at 5:20 pm

Corporate Lawyer,

Nothing in my post even remotely suggests that I am calling Title IX into question. Nothing.

I suggest that you dust off your constitutional and administrative law books from law school and double check how the US administrative, legal and legislative systems work. I do know what I am talking about but since you can't verify that give a jingle to the Constitutional Law experts whose opinions about the OCR's role I am paraphrasing.

Call them. I'm sure they will be eloquent, intelligent, balanced and reasonable.

Lifted from Town Square:

- "Stanford's Berkowitz, who holds a JD and a PhD in political science from Yale University and reads the Ali letter as obligating schools 'to curtail due process rights of the accused' and 'institutionalizing a presumption of guilt.'" (Wall Street Journal)

Web Link

- "Georgetown constitutional law professor Jon Turley, a graduate of OCR Ali's alma matter Northwestern Law School, who observed that the Ali letter forces schools to either (i) strip students and faculty of basic due process protections, or (ii) be declared discriminatory."

Web Link

- "The American Association of University Professors" (TIME magazine).


While their front offices have you on hold, ponder this related post showing that even the Executive Branch through the OBM, the federal agency that oversees the behavior of all federal agencies and reports to the President, is perplexed at how some US agencies feel they can circumvent the public and Congress by writing their own laws tucked into their agency's guidance letters:

The OBM lists federal agencies' guidance letters that have overreached and reports that:

"Poorly designed or misused guidance documents can impose significant costs or limit the freedom of the public"

"Because it is procedurally easier to issue guidance documents, there also may be an incentive for regulators to issue guidance documents in lieu of regulations."

"rules which ...establish new policy positions that the agency treats as binding must comply with the APA’s notice-and-comment requirements [and] receive the benefit of careful consideration accorded under the procedures for regulatory development and review [including] public participation... Congressional oversight and judicial review." [the OCR letter did not benefit from any of these]

Web Link

Posted by Crackpot Legal Theories
a resident of Charleston Meadows
on Aug 25, 2013 at 8:49 pm

My. Head. Hurts.

Posted by Paly PTA mom
a resident of Duveneck/St. Francis
on Aug 25, 2013 at 9:44 pm

Paly parent is spot-on, I have been very disappointed at the silence of school board members on the whole bullying/civil rights issues. I agree with Ken Dauber that figuring out the root causes and fixing them will be much better for our kids than pointing fingers back at OCR.
I went back and read the Weekly article about Barb Mitchell's secret memo about how to keep OCR out of PAUSD. I have to agree with Paly parent, this kind of libertarian ideology is very contrary to our progressive community's values.
I don't want our school board to be getting its legal theories from the Wall Street Journal editorial pages, either. Let's get back to focusing on the kids and check our politics at the door. That goes for Mr. Tom as well: Please get everything out into the open. It may not feel very comfortable but it will work out better in the end.

Posted by Another lawyer
a resident of Midtown
on Aug 26, 2013 at 12:11 pm

I have been reading these different threads about OCR, and seeing the same references to so-called "Constitutional Law" authorities. Jon Turley is self-described libertarian law professor, and the Wall Street Journal (!) has an obvious ideological ax. If the school board is listening to them and deciding to go up against the federal government, that is a silly mistake.
If on the hander, as one poster says, it is Barb Mitchell that the board is listening to, and she is pursuing her own libertarian/Tea Party perspective --- that makes a bit more sense about what is happening, since the rest of the board seems ill-equipped to sort out truth from fiction.
"Corporate lawyer" is right about Title IX, by the way. The school district has an obligation to respond to events that interfere with the educational program of female students whether or not anyone specifically complains, so long as it has notice. The articles in the Paly newspaper about a "rape culture" and harassment of women students obviously constitutes notice. The idea that the district can't investigate because of privacy concerns is not persuasive, given that the district permitted the publication of the articles in the first place.
I don't see any good rationale for not cooperating with OCR that is not just about ideology. If Mitchell is the source of that, the rest of the board should decided not to go along with her, since she is leading in exactly the wrong direction.

Posted by District not cooperating
a resident of Barron Park
on Aug 26, 2013 at 6:33 pm

I guess we will be having OCR conversations again at tomorrow's board meeting even when the administrators do not want to have them. Yes, this is a bad way to start the school year, but it has to happened, they cannot pretend that everything is alright at PAUSD, while at the same time, they are refusing to cooperate with OCR. I really thought the administrators had learned a lesson, when I see that parents are protesting outside Gunn tells me different. They still doing the same old, same old tricks. Time to stop and take these issues seriously.

Posted by reaility check
a resident of Adobe-Meadow
on Aug 26, 2013 at 7:18 pm

The district isn't doing what these parents want. That is why they are protesting.
A protest doesn't mean the parents are right ALL it means is that the parents aren't getting what they want. That is no proof there a problem with the district or the board.

Posted by Reality Check
a resident of Charleston Gardens
on Aug 26, 2013 at 7:56 pm

Oops, meant to say "no proof there is a problem with the district other than the letter of finding against the district from the federal inspectors."

Posted by reaility check
a resident of Adobe-Meadow
on Aug 26, 2013 at 9:35 pm

Actually, no, I meant what I said, not what you thought I said.

Posted by BusyMom
a resident of Another Palo Alto neighborhood
on Nov 21, 2013 at 4:38 pm

I completely agree with everything KEN wrote except for one part: I disagree with the statement, "Palo Alto has a reputation as a community that cares about civil rights, and one that strives to welcome and support all children, no matter their race, ethnic origin, gender or disability." As actions speak louder than words I can tell you that our district's actions say that they do not care about ALL children. I can tell you first-hand that they do not value kids with special needs. Most of the special educators and staff I have dealt with over the last 10 years do not know the law (IDEA) they work under and do not have the skills and knowledge to do make sure they are following it. The district doesn't care that most of the special ed teachers are clueless, but well-meaning. They don't learn the law in their credential programs and the district doesn't help them at all. Help is available, if the district would use it: experts in the community are able and willing to come in and teach the teachers and staff exactly what their duties and responsibilities are under the law. If that happened, parents like me wouldn't have to fight an uphill battle for our children's rights day in and day out year after year. I have had to spend thousands of dollars and numerous hours educating them on how to do their jobs (legally and ethically per evidence-based teaching practices). There is a complete lack of leadership from the Dir of Special Ed. I have looked at other districts that are proactive and willing to go the extra step and wish to God ours was one of them. If you have kids in our schools you know first-hand that our district ONLY really cares about the best and the brightest. We all know that's the truth. That is our TRUE reputation. Palo Alto is now known negatively as the place with the large disproportionality problem and the numerous OCR complaints. Personally, I am both embarrassed and ashamed. No one is listening to us parents and the board and the district admins don't fully understand that they actually work for US! For once I would like the board and the district to REALLY listen to what parents of kids with special needs who have been bullied have to say!! Meeting behind closed doors, paying a lawyer thousands of dollars to write policy. Where were the mental health experts who should have been participating in forming evidence-based anti-bullying policies? Hello? Oh, they didn't use any. Only a lawyer was used? No experts from Stanford, Children's Health Council, etc.? Did they even think to look at other districts and see what good points they could have gained from their anti-bullying policies? Nooo, we're special. We live in a self-imposed Palo Alto Bubble in which our so-called leaders never bother to learn from anyplace or anyone else. Districts all around our great nation have struggled with the exact same problems that we struggle with. Bullying is not our unique problem! Are we that narrow-minded? I wish I could shake everyone one of them until they wake up! I will continue to fight for my special-needs child everyday until she graduates. I will also continue to support smart people like Ken and Michelle who are willing to say, "Hey look! The Emperor indeed has no clothes!" Thank you Ken and Michelle for being much-needed voices of reason.

Posted by palo alto resident
a resident of Embarcadero Oaks/Leland
on Nov 21, 2013 at 4:50 pm

@BusyMom - this is a serious question, if you "have looked at other districts that are proactive and willing to go the extra step" why don't you move to those districts? If another district would be better for your child, why wouldn't you go there? I'm not trying to get rid of a problem, just truly curious. If you own your home, you could rent it or sell it for a premium. If you are currently renting, rents almost anywhere are cheaper.

Years ago, Jordan used to have a reputation for having a great program for Aspergers kids and people moved here just to send their kids to school there. This is no different.

BTW - I agree that our district caters to the easy to teach, smart students. Because its easier and there are a lot of them. And the students that need extra help often receive it through their parents paying for services instead of the district supplying them.

Posted by not so fast
a resident of Another Palo Alto neighborhood
on Nov 21, 2013 at 5:41 pm

@palo alto resident.

….. not so fast…. PAUSD is happy to throw the quiet, high achieving kids under the bus, too. My kids were forced to sit next to nightmare children (some very wealthy ones, I might add) for all of elementary. What did my kids learn? They learned that if they behave and do well they will be punished by constantly be forced to sit next to, or be in groups with, the most ill behaved children at the school……

PAUSD is a haven for bullies, there are zero consequences. My kids were spit on, constantly poked and pushed by their "table mate" and given zero personal space. Year in and year out the teachers said my kids were "such a delight" because they "always helped manage the classroom." code for "we're using your child to make our day easier."

…..after much soul searching we applied to private schools - they were accepted to every school - and given financial aid. My kids are thriving. If you have a Quiet child - read the book QUIET by Susan Cain and then - pull your kids out. Many private schools will line up to take the quiet, thoughtful child. Let PAUSD roll around in it's own muck.

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