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Original post made
on Mar 8, 2013
Mrs. Mitchell and Mr. Tom
A Google search for National School Boards Association and Office of Civil Rights turns up a document from 1999: A Guide for Schools: Protecting Students from Harassment and Hate Crime
What is it about the 2010 Dear Colleague that changed the definition of bullying or the responsibilities for handling bullying, and why are these changes the focus of PAUSD's response to the OCR violation?
WHen Mrs. Mitchell calls the OCR, please address this concern that the 2010 Dear Colleague letter makes it appear that the "OCR is creating an expectation that school officials are to respond to each and every offensive incident as if it were a civil rights violation." and PLEASE report back their reply to this question.
GIven that you choose to focus on the 2010 Dear Colleague letter, I would like to know why? WHat does this have to do with the current OCR violation?
IF PAUSD had followed its own procedures, would we not have averted an OCR violation by any definition? 1999 0r 2010? WHat is the current district policy, and procedure for reporting and handling incidents at each school?
Or is the issue that our policies and procedures are so off base from OCR expectations that it makes it ok that a disabled child is punched. I cannot imagine you are saying you want to challenge the OCR guidance to make it so our policies are even more ineffective for protecting a student. But that's what it sounds like.
My view is that there is nothing that the OCR is asking for, that we would not do anyway. They seem to ask for more education, not a new software system that costs millions. If we do not educate enough, we could do it.
And don't we want to respond to every incident that rises to a level that a student feels unsafe?
What happened to the practice of a misbehaving child being "sent to the principal's office?"
A short discussion with the principal was quite effective in reducing bad behavior. And the embarrassment to the misbehaving child was effective too.
Didn't have to have committees and proclamations. Mostly common sense and adult responsibility.
Barbara Mitchell and Dana Tom want you to think that the law is unclear and that PAUSD is caught up by a federal definition of harassment that is overbroad and "differs significantly from current law, including California law, which defines bullying and school responsibilities very differently."
This is an abject falsehood.
They quote a 3 year old letter from National School Board Association complaining to OCR that it "is creating an expectation that school officials are to respond to each and every offensive incident as if it were a civil rights violation."
What they don't say is that three years ago Assistant Secretary of Education Russlynn Ali responded point by point to this letter showing that it was misguided and based on a misunderstanding and misreading of the law. You can read Assistant Secretary Ali's response here: Web Link
This is a little complicated for nonlawyers to understand, and that complexity is something that Mitchell and Tom are counting on. I will try to explain this in simple layman's terms.
The US Department of Education gives a lot of money to school districts including PAUSD.
Because the US Department of Education gives us that money they have the right in exchange for that money to place conditions on how we use it. One of those conditions is that we follow US Department of Education guidance on protecting student civil rights. This is not new. It is a federal law with a long and important history. It is how Lyndon Johnson desegregated southern schools. OCR is the agency that enforced desegregation. It is also the agency that enforces TItle IX and ensures that universities and colleges that receive federal funding treat female athletes fairly. Another law that OCR enforces is the law against harassment based on race, sex, disability or other protected classifications. That is the law PAUSD broke.
There are two ways that a student who has been unlawfully harassed can complain. One way is to OCR. In that case, OCR can order the school to stop discriminating and put it on a Resolution Agreement. That is what happened here. There are no money damages for that, only an agreement to stop discriminating. The other way is for the student to sue in federal district court for money damages. That has not yet happened in this case.
The standards in the two different kinds of enforcement (OCR and suits in federal court) are a little bit different but not in a way that matters for this case.
In 1999 the Supreme Court decided that school districts could be liable for peer-to-peer sexual harassment in a case called Davis v. Monroe County Board of Education. In order to be liable a district has to have actual notice of the harassment. It is not enough that the district should have known, the Supreme Court said. It has to actually know and do nothing.
OCR issued a Dear Colleague Letter in 1999, then again in 2000 specifically addressing the standard for its enforcement under federal law (called "injunctive" relief) and comparing it to the standard for money damages decided in the Davis case. OCR decided that when a district is sued for money, the Court may hold the plaintiff to a higher standard of evidence of wrongdoing (actual notice) than when OCR seeks to merely ensure best practices. OCR determined that it would continue to expect schools to prevent harassment about which they knew or reasonably should have known. This has been the law consistently since 2000. Every school district has been on notice since 2000 about that and you can read all about that in Secretary Ali's letter above.
But it doesn't matter because PAUSD did know about the harassment in this case. This is not a case in which the NSBA complaint has any relevance at all. It is just a smokescreen trying to create an impression that PAUSD was treated unfairly by the big, bad federal government.
PAUSD would be liable under both standards. PAUSD had actual notice of the harassment in this case and did nothing.
The principal knew. She thought it wasn't harassment and that her staff was very "sophisticated" so she didn't need training.
The Assistant Principal knew but he told investigators from the government that he didn't know.
The Compliance Officer Charles Young knew.
The Director of Special Education knew.
The Superintedent knew.
These officials received upwards of two dozen emails, verbal, and written complaints about discrimination. In March the family notified the district in writing that if it did not address the harassment, including a physical assault in which the little disabled girl was punched in the face so hard she had to go to to doctor and the police were called -- the family notified Kevin Skelly that if he did not address this known harassment they would go to OCR.
Nothing was done and they went to OCR.
So there is no issue of complicated law, changing standards, or conflict with CA law. In fact, CA law is entirely consistent with federal law. However, even if it was not in our federal system federal law would preempt any conflict.
The law is not hard to follow, changing, or ambiguous. Our elected leaders are shading the truth to protect themselves and Kevin Skelly. Or perhaps they are just unable to understand what has happened. Either way, they are not competent to address this situation and have conflicts of interest.
Dana Tom personally had notice of the discriminatory harassment and did not refer the written complaint he received to the correct compliance officer. Instead he condescendingly told the family that it would get "better results" if they trusted the school and worked through the principal. The "very sophisticated" principal.
Dana Tom would like now to tell you that the law was complex. But the truth will come out, eventually, under oath. And the reason it will is that the district did have actual notice -- including Dana Tom. And the district did not take appropriate action. That meets the standard set by the Supreme Court under Davis.
One more issue bears mention. Barbara Mitchell implies in the news story that there are private facts about this child's case that she knows but you do not know that somehow exonerate the district. She says that "the whole story isn't public," Mitchell said. "I'd ask people to reserve judgment."
This isn't true. There are no facts that do anything other than cast Mitchell, Tom and everyone else in a very negative light. You can merely read the OCR report to see that.
By making this sideways attack on the family's credibility, Mitchell is simply provoking the lawsuit that she ought to be interested in preventing.
Finally, Mitchell and Tom state that they "are not disappointed" with the results of the OCR investigation. This statement is breathtaking in its hubris and also in its failure to comprehend the dire situation for governance and litigation risk created by the board and staff.
OCR received 1513 complaints of disability harassment in the past 4 years. Of those, only 14, fewer than 1% were school districts who ended up with letters of finding against them following full investigations. All others were either dismissed for lack of evidence or resolved prior to a finding. The other 13 districts are primarily poor and rural, such as Opelika City, Alabama and Catoosa County Georgia. These are places with a history of civil rights violations. They are not the school districts PAUSD should be keeping company with.
To say you are "not disappointed" in that is to say that you have no business serving the public. This guest opinion by Mitchell and Tom displays why a committee comprised solely of board members is insufficient to restore public trust.
We need a blue-ribbon panel comprised of independent citizens who are respected by all sides such as Susie Richardson, or Joe Simitian. Not another opportunity for sad dissembling like this editorial.
I think parents should be notified whenever their child has been called out for bullying or fighting. I also think parents should be notified if their child is suspected to be a victim of bullying or physical abuse. The teachers or school administrators seemed to do this quite well in the elementary schools. But once kids get to jr high and high school, it seems like parents are not being informed so well.
[Post removed by Palo Alto Online staff.]
When I first sow this article I was very happy finally hear from Barbara and Tom about the OCR incident, and more when I got to the question that reads:
Why did the federal government investigate our school district?
Whoever after I read their answer, I got very disappointing. They still don't get it.
I was hoping that Barbara and Tom would come clean, and say because we have failed to protect a child who was being bullied on a daily basis, and her life was being miserable, and they told us that if we did not something about it, they would go to file a OCR complain, but instead of telling the true, they go around the bush, and again tried to make it look like they did nothing wrong. Shame on you two. When are you going to accept responsibility for failing this child? You two need to go now, leave your seat for someone who wants to take the issue seriously and not sugarcoated it. No wonder why Skelly acts like that, you are not being a good model.
[Post removed by Palo Alto Online staff.]
The one sided editing of this thread speaks volumes. Anything in sync with the editorial - no problem. Anything critical shows up as "[Post removed by HE who must be obeyed]"
Your comments seem intended to detract attention from the thread, with no value other than to say you guys are sour grapes, we win, you lose, we're the majority, you're the minority.
I'm glad the Editor is noting you as a troll because these threads may not be perfect, but if you're a grown up you and can take care of yourself, you can participate and learn or contribute information of matters to the community. Nobody is asking you to believe everything you hear, these are all opinions. Actually nobody is forcing you to read any of this.
When you have something of value to contribute, pro or contrary, I'm sure you probably won't be deleted.
Ms. Mitchell and Mr. Tom,
I was at first pleased to see your editorial in the Weekly, because I have been puzzled at the lack of response from elected officials about this issue. After reading it, I confess to being quite disappointed.
I wonder if you understand that the role of the school board is to provide oversight of the school district on the part of the citizens of the school district? You seem to see the current situation as primarily a problem of public relations and perception, rather than of substance.
Mr. Burke above has provided a clear response to details of your editorial, to which you should respond. I have read the OCR report and you are selectively quoting it out of context. Rather than address the ten pages of disturbing facts of bullying and inadequate staff response and legal violations, you quote the pro forma closing at the end, transforming it into a substantive judgement about PAUSD.
My reading of your editorial leaves me with the clear impression that you are more interested in defending the district's staff than in getting to the bottom of this distressing matter. I am very disappointed in you, as are the friends and neighbors I have spoken with about this. It is particularly sad to see Ms. Mitchell who has a reputation for forthrightly addressing difficult situations taking such a stance.
Board members are representatives of the community and this is a political response, under legal constraints, to their constituents. What is going on behind closed doors, however, will be entirely different.
Wow Jeanne and Agree. No wonder our kids feel okay to bully children with "character deficits" or differences. Talk about demonstrating lack of tolerance for differences and making judgments.
I wish I could see the comments removed. Jeanne and Agree (among others) seemed to have triggered the decision to make this thread available only to members who are logged in.
I believe that knowing what is going on is extremely important, especially given the fact that this is about kids. I think one better know what is the atmosphere out there, even just few. History is full of examples where ignorance of the real surrounding had tragic results. I'm not comparing here to those historic cases - just trying to say that I would rather read/hear/know what is going on, even hate speech directed at me in any way.
Privacy of kids/families would be the only reason that would have me totally support removing comments.
Having written the above - obviously, I have no clue as to potential liabilities of the host of this forum. I am grateful for the opportunity given.
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