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About this blog: There are few issues more controversial and emotionally charged than education in Palo Alto. For this reason, I have chosen to write under the pseudonym Edmund Burke. Burke was an 18th century philosopher, statesman, and political...  (More)

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Palo Alto’s “New” Bullying Process Still Broken

Uploaded: Dec 26, 2013
In my last post, I examined the concerted effort by PAUSD Superintendent Kevin Skelly and members of the School Board to reassure parents that the district is "following the law" regarding discrimination and bullying.

I explained state and federal requirements regarding the required complaint procedures for discrimination and harassment, and showed that PAUSD does not meet these requirements. PAUSD has not yet complied with California's Seth's Law, which became effective in July 2012, nor has it complied with federal requirements issued in 2011 regarding sexual harassment policies.

Nevertheless, Skelly and the board members have publicly suggested that implementing these policies is less important than following the law in practice. In a November 22 email, Skelly told parents not to worry: "Let me reassure you that this delay in board policy and regulation has in no way affected our compliance with laws intended to keep students safe." Board member Melissa Caswell agreed, telling the Daily Post on November 21 that "even though the policy hasn't yet been approved, changes are already in place and the district is abiding by the law." Trustee Barbara Mitchell followed suit, saying that "our district has not waited to comply" with the law.

In this post, I will show that this is not the case. Indeed, substantial evidence shows that the district is not following the law in practice either.

Is PAUSD "following the law" in practice?

PAUSD's New Bullying Forms. One crucial piece of evidence that has been relied upon to support the idea that the district is following the law in practice is the district's new bullying forms. Ms. Mitchell contends that these forms demonstrate "strengthened response procedures," telling the Daily Post that the new forms have "standardized the procedure the district uses to investigate a complaint."

The forms are dated October 7, 2013, and it is a bit unclear how they were developed. Although Ms. Mitchell said that they were created by a committee comprised of parents, students, and staff, that appears to be wrong. There was such a group called the Safe and Welcoming Schools Task Force but it did not develop forms. (Further confusing matters, this group had a different name each of the three times it met: the "Safe and Welcoming Schools Task Force", the "Safe Schools Task Force", and finally, the "Stepping Up To Safe and Welcoming Schools Task Force.")

The forms were apparently created by a different group called the "Stepping Up Task Force" which was comprised entirely of site-level staff members selected by the district office who worked over the summer to develop "tools that will help clarify for students, staff and parents how bullying can be reported, action that must be taken and timelines."

There are four forms:

Form A, Bullying Incident Form;
Form B, Bullying Incident Investigation Form;
Form C, Harassment/Discrimination/Intimidation/Bullying Decision;
Form D, Request for Appeal.

Contrary to Ms. Mitchell's claim that the forms demonstrate improved procedures, the forms themselves demonstrate that the district is still not "following the law" in practice.

The Forms Demonstrate that the District is Still Not Using the UCP. The biggest flaw in the district's bullying forms is that they do not mention the Uniform Complaint Procedure (UCP). This is the state-mandated procedure I described in my last post. The UCP is required under California law to handle all complaints of discrimination, including bullying based on a protected status.

These forms also contradict the terms of the Resolution Agreement PAUSD reached with OCR to settle a complaint of disability-based bullying at Terman in 2012. In that agreement, PAUSD agreed to use the UCP to handle discriminatory harassment complaints.

Under the UCP, complaints of discriminatory bullying are to be made to the district Compliance Officer who manages the investigation and writes up the decision. There are specific requirements for both the conduct of the investigation and the content of that report, which must be completed with in 60 days. Complainants must be notified of their right to appeal an adverse decision to the California Department of Education.

It is difficult looking over these forms to conclude that the district contemplates using the UCP at all. All of these forms clearly pertain to a site-level process conducted by the principal. The Bullying Incident Form (Form A) contains no information on what to do if the complaint is based on a protected status and the instructions contain no reference to protected status. There are no checkboxes for categories like "race" and "disability" that could be used to prompt a principal to send the form to the Compliance Officer. Yet the form itself, once signed, will constitute a written complaint that triggers the district's legal obligations under state law to utilize the UCP.

These forms are clearly intended to be used in cases of discrimination. Indeed, Form C is entitled "Harassment/Discrimination/Intimidation/Bullying Decision" and specifically states that the principal is required to write up a report of his or her findings that includes the actions taken to end the discrimination, to address the effects of that discrimination, and to prevent retaliation or further discrimination.

Similarly, Form B, the Bullying Incident Investigation Form, contains checkboxes asking whether the bullying is based on sexual harassment or hate-motivated violence, both of which would constitute discrimination and trigger the obligation under state law to use the UCP, yet no mention of that obligation is found on this form. None of the forms or instructions contain any indication that anyone should notify the Compliance Officer about the complaint.

There are other issues with UCP compliance. None of the forms or instructions specify that the investigation and report must be completed within the 60-day limit mandated by law for UCP complaints -- indeed, no timeline is given at all. The Investigation Form does not require that the complainant be allowed to present evidence supporting the complaint. The Decision form includes a checkbox for indicating whether the appeal process has been described to the parents, but this refers to Form D, Request for Appeal, which goes to district Student Services Coordinator Brenda Carillo, not to the legally required UCP notice of the right to appeal to the California Department of Education.

The Request for Appeal form (Form D) states on the first line that it is an appeal "in accordance with" Seth's Law, Cal. Educ. Code § 234.1. However, under Seth's law, appeal is to be to the CDE. This form goes instead to district Student Services Coordinator, and it does not inform complainants of their right to appeal to CDE as required by law. Oddly, the form refers to grounds for an appeal that seem to have no relationship to discriminatory harassment. For instance, the appellant is asked to "explain if there is new relevant evidence, which could not have been produced at the time of the hearing." But the process does not include a "hearing." This is confusing and suggests, incorrectly, that unless there is such new evidence that there is no basis for a successful appeal.

Meanwhile, the district does have a
UCP
complaint form. However, the district's UCP form does not even mention bullying.
It provides a general checkbox for "discrimination" based on various categories (not including all that are required under the law, itself a problem) but does not specify that it covers discriminatory bullying. While this may be legal, when viewed in combination with the non-UCP bullying forms, the district is presenting a misleading picture to staff as well as to bullying victims and their families -- implying that the UCP is for discrimination that does not include bullying and that bullying, including discriminatory bullying, is to be handled using the new bullying forms.

PAUSD Does Not Need to Reinvent the Wheel. By contrast, the California Department of Education provides an appropriate model form which states clearly that the UCP is legally required in cases of discriminatory bullying, and cites the legal authority. There are a series of checkboxes on the first page of the form that list every protected classification and discriminatory basis for the harassment, and asks for details such as dates and times, witnesses, and other information.

Unfortunately, the non-UCP bullying forms have already been provided to the sites, and the district has already trained principals and other administrators on their use at meetings held on October 15 and 24. The forms evince a district commitment to site-based complaint resolution that is directly in conflict with the requirements of Seth's Law, the UCP, and the OCR resolution agreement. These incorrect forms will now have to be pulled back and staff will have to be appropriately trained on the use of the district-level UCP, further confusing matters.

The School Sites Still Do Not Use the UCP. At the December 3 BRPC meeting, district lawyer Dora Dome correctly noted that under the law, "any complaint alleging harassment, bullying, discrimination, intimidation based on a protected status must go though the UCP" regardless of whether the complaint is substantiated after investigation or not.

To return to our initial question: are Skelly and the board members correct that the district is already following the law despite the fact that it has not finished revising its policies? If so, then we should expect that all complaints that allege discriminatory harassment would at this time be handled under the UCP.

At first glance this seems unlikely. One function of written policies and procedures is to guide the conduct of staff in reacting to complaints. How are staff to know what the UCP entails or what the relevant timelines are for reporting or investigating if there are no correct district handbooks or policies to which they can refer?

The district's answer to this question is that staff have been trained in the correct, legally-mandated procedures. Indeed, there has been a great deal of training going on, most of it conducted by Dome for a fee. At the December 3 BPRC meeting, Kevin Skelly repeatedly referred to the district's investment in staff training in bullying. He contended that the "extensive training" already provided had left him with "no doubts about the ability of staff to deal with bullying."

What About This: A Recent Disability Bullying Complaint at Jordan. But a recent case at Jordan Middle School suggests otherwise. At the BPRC meeting, a parent came forward and stated that the family had made a complaint last month about disability-based bullying at Jordan, and had specifically requested investigation using the UCP. According to the parent, the complaint involved an incident in which a student who was well-known to have an emotional disability was teased to the point of extreme frustration and the disabled student lashed out physically at the student who was doing the teasing.

The parent stated that District Compliance officer Charles Young was informed about the incident and the complaint, and about the parent's desire for the complaint to be processed using the UCP. However, according to the parent, Jordan vice principal Grant Althouse had just informed the parent that the complaint was not investigated using the UCP. Instead, the site had taken three weeks to conclude that the incident was not disability-based. The decision given to the parent by the site did not contain most of the UCP required elements, such as conclusions of law, and rights of appeal to the CDE. Rather, the parent was instead informed that the site-level decision could be "appealed" using the UCP, even though the UCP is not an appeal process. The parent also provided documents that substantiated these allegations.

By the time the parent had received the decision, the school had already implemented its discipline and other corrective measures.

As Dome said, regardless of whether or not Jordan's conclusion that the incident was not disability-based bullying is correct, the complaint was legally required to be handled under the UCP. It wasn't.

This situation is worrisome for several reasons. First and most importantly, the district's site-level response was inconsistent with the UCP and therefore did not comply with state law. It was, however, consistent with the district's new bullying forms, which do not reference the UCP and invite an entirely site-level process. It was also consistent with the district's longstanding method for handling complaints, which is to use site-level and informal resolution and to ignore the UCP and state law recordkeeping and documentation requirements.

Second, it suggests that the training that has been provided has not successfully changed this pattern or alerted staff to the requirements of the law. Finally, it reinforces the difficulty of compliance with the law in the absence of duly adopted policies, procedures, notices and training materials on which to base that compliance.

Yes, Policies Do Matter. In conclusion, the district's new bullying forms and the evidence of the mishandled complaint of disability-based bullying from Jordan demonstrate that the district is not, as Skelly and the board members claimed, already following the law. Ms. Caswell is mistaken: changes are not already "in place," and the district is not "abiding by the law." Rather the evidence shows that the district is continuing to struggle with legal compliance.

Dr. Skelly acknowledges that it has taken "too long" to complete the drafting and adoption of clear, legally compliant policies. He has attributed the delay to OCR and CDE but this is only part of the story. The other part of the story is that the district has engaged two different law firms and four different attorneys to painstakingly negotiate with the federal government for special, custom-tailored policies rather than using the model policies and other UCP resources provided by CDE. The district has likewise paid outside counsel to create its own forms, which clearly do not comply with the law, rather than using the correct model form provided free of charge on the CDE website.

At minimum, the district should have quickly adopted interim procedures based on CDE or CSBA models that complied with the law while it negotiated with OCR. After all, it was legally obligated to adopt many of these rules years ago. Instead, the district has retained policies and procedures -- such as the lack of a disability discrimination complaint procedure, and a sexual harassment procedure that does not comply with either state or federal law -- that are unlawful.

The delay in bringing the district's procedures, policies, and rules into line with the law has not been, as Skelly and the board members claim, harmless. Rather, it has led to confusion among students, parents, and staff, more legal violations, and greater mistrust between the community and the schools over bullying.






Comments

 +  Like this comment
Posted by Skung, a resident of Another Palo Alto neighborhood,
on Dec 26, 2013 at 6:19 pm

Thanks for the links to the forms. These forms are almost useless, and I am certain that site staff hate them, just as I am certain that site staff blame parents they view as crazy for the very existence of these forms, rather than themselves as a team of leaders whose missteps and selfishness created this mess. Kevin Skelly finally posted his latest Weekly Communication, and he posted it late (Tabitha Hurley is being paid close to $150,000 to help put this collection of smoke and mirrors out on time) on the district website and it does contain his usual cheerleading about how great construction is going, but also another part where he says that the board should approve the latest Uniform Complaint Procedure, Non-Discrimination/Harassment, and Sexual Harassment Board Policies, but not the Bullying Policy because questions were raised, all according to Skelly. Sure enough, the policies that Skelly attaches in his Weekly Communication show a lot of cut and paste, as predicted. There is also a CSBA sample policy thrown in there. This tells us that lawyer Dora Dome was never needed, except to show the OCR and the public that something was being done about Skelly and Charles Young not doing anything about various parent complaints. Part of the Skelly-Young strategy has been to play the public by blaming the written policies for the parent complaints, not the ineptitude of the administrators and teachers, the people who the public pays to care for all children. Good luck with that, Skung. The Uniform Complaint Procedure was not the issue, the issue was that Young did not follow it. And if what Burke has written about the latest Jordan complaint is true, the larger issue is not a supposed lack of procedures and policies, it's the lack of willingness or competency in the assistant superintendent, who for the moment is Young. What good does it to present revised policies in Skelly's Weekly Communication that list the assistant superintendent as the person to go to if that person is someone who cannot do his job? Fortunately, Skelly and Young will announce in 2014 that they will be leaving PAUSD, so attention need to be focused on their replacements. Before Skelly leaves, it would be nice to know publicly what he discussed with PiE, one of the enablers of the current regime. According to Skelly, "Representatives of PiE met with me, Cathy Mak, and Barb Mitchell to discuss our working relationship. These are interesting times, and we need to maintain strong communications." I'd sure like to know about this relationship with our public school district. No secrets, right? Maybe Mitchell can send us the information through a letter to the Weekly or with an email that accidentally gets released. Keep writing Burke. Clearly you have some inside information. I'm certain that teacher union folks, principals, PiE-PTA parents, and others are all trying to figure out who you are. Know that Skelly and Young (and we pay Hurley to read this, too!) read every word and that they will continue to change their behaviors. Case in point is Young's latest memo in the Weekly Communication: he wrote nothing, which was exactly the advice given to him in the Town Square a week or two ago.


 +  Like this comment
Posted by Let the light shine in!, a resident of Jordan Middle School,
on Dec 26, 2013 at 7:03 pm

Fabulous and straight-forward presentation of the facts in this area. Thank you Edmund Burke!!!!

I cannot begin to understand the level of denial and CYA manipulation that it has taken Skelly, Young, the Board and their lawyers to so royally mess up such simple policy requirements. All of that convoluting and manipulating and spinning with a resulting garbage guideline/policy and even more legal exposure. What a tremendous effort expended to thwart the laws that protect our weakest children. Shame on you PAUSD!!!!!

If Skung is correct and the faces of incompetence are indeed being flushed out of the district, then we should ALL work to ensure that their replacements are willing to follow the law. We have sunk so low at PAUSD that we have to be explicit in looking for law-abiding administrators.

Behind these public faces is a culture that is willing to sacrifice civil rights and equal access to education in order to protect local fiefdoms with cozy power relationships for the wealthy. We have Camile Townsend who appears to be highly and vocally concerned with the privacy rights of accused bullies who she has personal experience defending. We have PIE who had to give up on site based fundraising for inequality reasons but is still pushing hard for site based power control so that they can "impact" their children\\\'s\\\' education. We have secrecy and subterfuge with illegal board meetings and skyrocketing legal bills to defend a broken status quo.

Let\\\'s keep letting the light shine in! Transparency in policy and management are key. PAUSD - you are always on candid camera. Start to act like it!


 +  Like this comment
Posted by Thanks in the Name of Our Special Ed. Kids, a resident of Palo Verde School,
on Dec 26, 2013 at 9:52 pm

Edmundo, you are amazing. Really, you should be one of our board members. You will be doing an amazing job for our kids, all kids, not just the "normal and wealthy." our children are lucky to have you and spend so much time trying to make things better for our kids, especially our special education kids. Thanks in their name. God bless your good heart. We are very lucky to have such educated person advocating for our kids. Hopefully one day we will hear from Skelly that he is leaving, that day we will have a celebration, for now let's hand in there and be vigilant to make sure that our kids rights do not get violated anymore by unprofessional and heartless principals, assistant superintendents, special education director and Skelly.


 +  Like this comment
Posted by Management please, a resident of Crescent Park,
on Dec 26, 2013 at 10:10 pm

Thank you Mr. Burke for your careful reading and analysis. I am continually amazed by how this group of managers and elected officials seems to be outsmarted by their own efforts to skirt the law and common sense.
I doubt if Dr. Skelly and the board members are even aware that their processes don't comply with the law. They seem only dimly aware of what is required, and to be focused more on protecting against criticism.
This latest news (in the first comment) that the district is abandoning its bully policy is another face palm moment. Really? After a year, probably hundreds of thousands of dollars in legal bills and staff time? "We had a meeting, couldn't answer some questions from the public, decided to kill it." If it was worth doing in the first place, why abandon it so casually? If it wasn't worth doing, why waste all of those public resources?
To me, this all looks like straight-up incompetence.


 +  Like this comment
Posted by how stuff works, a resident of Another Palo Alto neighborhood,
on Dec 27, 2013 at 9:04 am

My post was taken down even though it was just a list of questions respectfully posed, no names or pseudonyms were mentioned, it did not violate the TERMS OF USE, and it was not inappropriate.

My questions were posed because the blogger lays out how the law works and how it was violated but pens this piece under a pseudonym giving readers no window into the blogger's legal expertise in this field.


 +  Like this comment
Posted by how stuff works, a resident of Another Palo Alto neighborhood,
on Dec 27, 2013 at 9:10 am

Re-posting

Is it OK in CA for people not admitted to the CA Bar to give legal advice? "No person shall practice law in California unless the person is an active member of the State Bar." Members of the CA bar must "have passed the general bar examination given by the examining committee." Members who have passed that exam are listed here: Web Link

Does CA law allow lawyers to:

- Give unsolicited legal advice in a blog? Does that make every reader his client?

- Give legal advice anonymously? Call out by name people the lawyer says have violated the law while not disclosing the lawyer's name too?

For non-CA lawyers: CA law says that no one can "operate for the ... indirect purpose, in whole or in part, of referring potential clients to attorneys...unless ...registered with the State Bar..."

Web Link

Web Link

Web Link


 +  Like this comment
Posted by Edmund Burke, a Palo Alto Online blogger,
on Dec 27, 2013 at 9:42 am

Edmund Burke is a registered user.

How stuff works is asking whether it is lawful for a citizen, and the press (the Palo Alto Weekly) to publish a critique of the conduct of public officials and agencies, and to offer information and opinion about whether that conduct is consistent with the law. The answer to that question is yes.

Without engaging in a lengthy discussion, under the US Constitution as well as under the California Constitution, citizens and the press have the right to criticize and evaluate the conduct of public officials, agencies, and bodies. Furthermore, information about "how the law works" is protected First Amendment speech and is not the "practice of law." NAACP v. Button, 371 US 415, 426 (1963) (rejecting effort by Virginia to use unauthorized practice statute to prevent the NAACP from explaining civil rights and referring potential clients to specific attorneys because litigation was a form of political advocacy and "a means of achieving the lawful objectives of equality of treatment by all government, federal, state and local. . . "). See also Dacey v. NY County Lawyer's Ass'n, 423 F.2d 188 (2d Cir. 1969); NY County Lawyers Assn v. Dacey, 234 N.E.2d 459 (NY 1967) (holding that nonlawyers have a constitutionally protected right to publish information about law).

Similarly, I encourage "how stuff works" or any other reader to examine the legal sources I have cited, and others, and offer any contrary opinion. They too enjoy the same First Amendment rights as I do.


 +  Like this comment
Posted by how stuff works, a resident of Another Palo Alto neighborhood,
on Dec 27, 2013 at 11:36 am

In California: "As the term is generally understood, the practice of the law ...includes legal advice and counsel." People v. Merchants Protective Corp., 209 P.363, 365 (1922).

Many of the statements in this post go well beyond "explaining civil rights," "lawyer referrals," "critiques," "information" and "opinion."

They apply facts to the law and then conclude that those laws have been broken:

"substantial evidence shows that the district is not following the law"

"the forms themselves demonstrate that the district is still not 'following the law'"

"I ...showed that PAUSD does not meet ...state and federal requirements regarding the required complaint procedures for discrimination and harassment."

" the district's site-level response ... did not comply with state law"

"the district is not 'abiding by the law.' Rather the evidence shows that the district is continuing to struggle with legal compliance."

"it was legally obligated to adopt many of these rules years ago. Instead, the district has retained policies and procedures ...that does not comply with either state or federal law -- that are unlawful. "

[portion removed]


 +  Like this comment
Posted by Side Show, a resident of Another Palo Alto neighborhood,
on Dec 27, 2013 at 11:55 am

@how stuff works
Any chance you could stick to discussing the substance. Your anonymous comments seem pretty specious, unlike Burke's.


 +  Like this comment
Posted by Management please, a resident of Crescent Park,
on Dec 27, 2013 at 1:47 pm

It is pretty hilarious (unintentionally, I'm sure) for "how stuff works" to be citing cases to try to prove that it's somehow illegal to cite cases to demonstrate that some behavior is illegal. But "how stuff works" isn't breaking the law, he is just trying to shoot the messenger.

What I appreciate about Mr. Burke's contribution is that he is explaining the gap between the law and what PAUSD is doing, with plenty of citations to the law (both federal and state) so that citizens can decide for themselves. I particularly like that he includes links to his sources. He clearly goes to a lot of trouble to be transparent. I think this is a real public service, as I would not have time to find these things for myself. Since Palo Alto parents and residents tend to be pretty smart and educated, they can read these sources and judge the situation for themselves.

What I appreciate about "how stuff works" on the other hand, is that he is providing (again, probably unintentionally) a nice example of what seems to be going wrong in the management of the district. A healthy, well-managed organization listens to criticism, engages with it, and does better. An unhealthy, poorly-managed organization attacks its critics, tries to shut down information, and generally keeps getting worse. By this definition, PAUSD has a ways to go. (By the way, I'm not saying that "how stuff works" is a senior district staff member, I'm saying that his approach is typical of the problem).


 +  Like this comment
Posted by Publius, a resident of Duveneck/St. Francis,
on Dec 27, 2013 at 6:02 pm

Apparently according to "how stuff works," there is no problem when Skelly, Caswell, and Mitchell give their views about whether the law is being followed. Reported above, they said:

"In a November 22 email, Skelly told parents not to worry: "Let me reassure you that this delay in board policy and regulation has in no way affected our compliance with laws intended to keep students safe." Board member Melissa Caswell agreed, telling the Daily Post on November 21 that "even though the policy hasn't yet been approved, changes are already in place and the district is abiding by the law." Trustee Barbara Mitchell followed suit, saying that "our district has not waited to comply" with the law."

Are Skelly, Mitchell and Caswell engaged in the unauthorized practice of law? They aren't lawyers yet they seem to be offering legal opinions about the district's legal compliance, just like Burke. "Stuff" says that's illegal. Please, "stuff" send them a note asking them to stop "practicing law". Since you care so much about that issue.

Meanwhile back at the ranch, everyone else is concerned about bullying. I want to try to understand what on earth is happening with the new bullying policy. For the past year we have been hearing about this great new policy. They worked and worked on it. It was going to be a model for the state. We had to wait for the new policy to have a public discussion of the problems at Terman. Now, is it true, as "Skung" says that they have decided to cancel it? Now we will have no bullying policy at all -- just whatever the sites want and no new process? I don't understand. Mr. Burke, can you explain?


 +  Like this comment
Posted by Curious on next steps, a resident of Addison School,
on Dec 27, 2013 at 7:46 pm

I too would like to continue to discuss the substance - legal bullying policies for PAUSD.

If Skelly is not going to waffle yet again and is actually going to have the district adopt the CDE approved and legal procedures, then when and how are staff going to be retrained? Who is going to pay for that retraining - the malpractice insurance of Fagen et al? What are parents going to be told about how their kids are being protected?

What is going to happen to the Jordan bullying case that Grant Althouse diverted to the site level even though the parent had asked for a district level UCP investigation? That one seems beyond weird - especially since you tell us that the parent asked for it by name (and seems to have been more informed about the proper procedures than the staff). Is this going to turn into another state or federal investigation? More PAUSD funds wasted on legal cover up?

Where Oh where is our board on all this? Just as importantly, where are our community leaders on this? Doesn't everyone in Palo Alto have a vested stake in seeing our kids safely educated? Why aren't more of us up in arms and "disruptive" about the legal sinkhole Skung has dragged our city into?

Please everyone - forward a link to this discussion to our city council, elected officials, neighborhood leaders and community activists. Ignorance is not bliss


 +  Like this comment
Posted by Who is trying to stuff the works?, a resident of Professorville,
on Dec 27, 2013 at 7:53 pm

Can't help but wonder why the person who wants to block the spread of information is using a pseudonym?

Reminds me of when Skelly finally admitted to the press that the reason the district had backed out of hosting the Office of Civil Rights presentation was because it would encourage more folks to stand up for their rights and file complaints. Lovely strategy!

Maybe Skelly is struggling to figure out how stuff works?


 +  Like this comment
Posted by Let the light shine in!, a resident of Jordan Middle School,
on Dec 27, 2013 at 8:00 pm

What did PIE have to say to Skelly? What is PIE\\\'s position on this legal debacle? Would love to hear from both PIE and the PTA and see some transparency here.


 +  Like this comment
Posted by Skung, a resident of Another Palo Alto neighborhood,
on Dec 27, 2013 at 9:30 pm

PiE has raised $25 million in the last eight years. The recent millions of dollars frees up the general fund so everyone can get their raises and Kevin Skelly has a nice, big slush fund to pay lawyers. If you want to know more, ask the person who gets special access that you and I don't get: Kathy Schroeder, Executive Director. Money buys access, without access, you have to wade through the chain of command, which usually ends with Compliance Officer Charles Young. Tell me how that has worked out.


 +  Like this comment
Posted by Edmund Burke, a Palo Alto Online blogger,
on Dec 27, 2013 at 10:23 pm

Edmund Burke is a registered user.

@Publius

Regrettably, it appears that Dr. Skelly has decided to dispense with the bullying policy. In his December 20 Weekly communication to the Board, he stated that he has decided to change course. He stated that after the December 3 BPRC meeting, he discussed the bullying policy with "principals, district staff, and [unspecified) others," and he decided that it would be better to "hold off" indefinitely on what he now refers to as an "optional" bullying policy and proceed without it.

This goes against the CSBA, which "strongly recommends" that districts handle all bullying claims under the UCP. It leaves victims of so-called "ordinary" bullying -- bullying or harassment unrelated to discrimination -- without recourse to any specified procedure or policy of any kind.

I will discuss this at length in my next blog post, so please check back for more details.

@Curious

I do not know what happened in that instance. However, any parent who has made a complaint of discriminatory harassment which has not been resolved under the UCP is entitled to file a complaint directly with the California Department of Education.


 +  Like this comment
Posted by No practice vs best practice, a resident of Professorville,
on Dec 28, 2013 at 5:37 am

Wow! So instead of using CDE best practices we are back to total site-based control? 18 different personal "sophisticated" interpretations on how to handle bullying? 18 different ways that the district can get investigated and sued? Plus 18 different ways that "protected" classes can get ignored and keep the Office of Civil Rights busy in our town?

What a huge step backwards for our kids!


 +  Like this comment
Posted by how stuff works, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 6:50 am

I don't know how school board members know what is legal and not. I suppose, if what you report is true, they are sharing information their lawyers gave them and did not dig into the law books and draw those conclusions on their own. I also am not dismissing the point of the blog post - bullying - but I am first seeking information on the blogger to see if he is a reliable source before I spend time and dig in.

It is the dilemma all anonymous bloggers with passion have. Their credibility is in question from the start because, no matter how well written the piece is and absolute its conclusions are, no one knows if the writer is biased or has expertise in the matter.

I always wonder why someone who cares so much hides behind a pseudonym. Why isn't he on the street, at meetings, and on record? Presumably because he has something to hide, which brings readers back to question expertise, credibility, approach, etc.

That is where I am left here after the selective editing [portion removed] of my posts and deflective responses. [portion removed]


 +  Like this comment
Posted by Edmund Burke, a Palo Alto Online blogger,
on Dec 28, 2013 at 7:38 am

Edmund Burke is a registered user.

@stuff

Your posts were edited to remove content that speculated about my occupation and identity, which violates the terms of use. The introduction to this blog gives the reasons for my anonymity. Anonymous political criticism as a long and honorable history in this country, as the person posting above under the moniker "Publius" is referencing.

@Readers -- reinforcing my decision to write this anonymously, last night there was a coordinated DOS attack on this website intended to block this blog from appearing on the main page in order to limit readers' access to the information contained here by making it more difficult to find. This attack is underway again right now at 7:55am as I type this.

Fortunately, the individual or entity who is conducting this cyber-attack on paloaltoonline will be identifiable and the attack may be reported to the authorities as it is resulting in crashing the entire site in what amounts to a targeted DOS attack.

While this seems to be a petty and ridiculous thing to be doing, it is not a harmless prank. It is an assault on the First Amendment.

The First Amendment guarantees the right of the press and the public to criticize public officials, agencies and entities, including the schools. It is a shame that our constitutional rights to a free press and to criticize the conduct of the government are being placed in issue by "stuff" and the individual who hacked paloaltoonline (who are of course not connected) in a highly educated community like Palo Alto.


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Posted by Edmund Burke, a Palo Alto Online blogger,
on Dec 28, 2013 at 8:12 am

Edmund Burke is a registered user.

@no practice

Not quite. It is the CSBA (California School Board Association) not CDE that recommends the best practice of using the UCP to handle all complaints of bullying, regardless of whether the bullying is based on a discriminatory reason or not.

You are correct that the net result will be having a two-tier system for bullying complaints in which the first tier is the legally mandated process for discriminatory harassment and the second tier, for bullying that is not based on a protected characteristic, will be no process. Complaints of "ordinary" bullying will be handled at the site level according to whatever process each site devises. There will be no required investigation, documentation, written decision, or appeal.

This is very unfortunate and is not at all the process and policy that the public has been repeatedly promised by the school board and district staff.


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Posted by No practice vs best practice, a resident of Professorville,
on Dec 28, 2013 at 11:53 am

How do school staff figure out if either the victim or the bully are in the "protected" groups? I though a lot of the designations included pretty private stuff like disabilities (many invisible), sexual orientation, ethnicity, etc. Seems like a minefield for school staff and another huge legal liability.


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Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 12:45 pm

@no practice

You are correct that this is a potential pitfall with the district's chosen approach. I invite you to read my earlier post on this subject at: Web Link, in which I noted that the primary flaw in a two-tier policy is that school site staff will have to determine whether or not an act of bullying is based on a protected characteristic or not. Because bullying is often subtle, that will sometimes not be obvious, particularly in cases involving characteristics cause a student some privacy concerns such as sexual orientation, or where a student is being bullied due to being associated with someone else who has protected characteristics.

This is why, as the Weekly reported, the California School Board Association's general counsel "strongly recommends" that districts use the UCP for all bullying complaints, even those without discriminatory elements, to "ensure certainty and consistency for students, parents and staff when addressing all bullying complaints, regardless of whether or not a bullying incident might involve discrimination."

Errors are inevitable under this system and errors in which discrimination is missed and consequently given no process at all will result in more complaints, investigations, and possible litigation.

There are two tendencies that have pushed the district in the direction of this abrupt course reversal. First, PAUSD's radical version of site-based control is an impediment. It seems clear from Skelly's Weekly to the Board that the principals rejected the single tier approach. In PAUSD, sites have been allowed to decide what they will and will not do for a long time (even to the point of forming a principal's "union" to insist on the removal of a former Superintendent) and that system of absolute site-based control is now thwarting the effort to implement a consistent bullying policy across the sites.

Charles Young comes in for a lot of criticism and perhaps much of it is justified. But perhaps it is the case that there is no way in this organization for anyone to be effective in the job of compliance officer. That job is to ensure uniformity and consistency in district operations in a context in which there is no organizational system for doing that. Although the law requires a consistent district-level response, PAUSD has no district level way to push policies and procedures down to the sites, ensure accountability, or enforce uniformity or consistency.

The second factor that influenced this decision is the overall view among administrators and site staff that policies are for show. It is apparent that our administrators see policies as if they are required by law but they don't have much effect on what anyone does or does not do. In this view, policies and processes are adopted because of some red-tape or legal rule but decisions continue to be made at the site-level regardless. Both of the recent Resolution Agreements entered into with OCR involved a failure to follow policy; the first involved a failure to follow legal rules and policies regarding 504 plans. And despite entering into a Resolution Agreement in August 2012, and updating the 504 policies and providing significant training to staff in those policies and procedures last spring, last week it was revealed by the Daily Post that there has been yet another OCR complaint regarding 504 policies and procedures filed in September 2013.

The second OCR Resolution Agreement, regarding the Terman disability bullying case, included a commitment from PAUSD to use the UCP for all complaints of disability-based bullying. Yet as described above, a Jordan parent has reported that the family made a complaint of precisely that and also asked explicitly for the UCP process but received a site-level process instead.

Policies are not merely window dressing. They impact and help to shape the behavior of staff, parents and students.

It will take effort, leadership, and commitment to implement anything that is perceived as a challenge to these entrenched ways of doing things.


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Posted by Eileen1, a resident of Midtown,
on Dec 28, 2013 at 4:30 pm

@how stuff works

I do not appreciate your continued attack on the blogger. If, in your opinion, this blogger is inaccurate then by all means write ONE post indicating your concerns, if you have serious problems with the blog take it up with the editor of Palo Alto Online, BUT I do not believe it is in the community's interest for you to hijack this comments section in order to harangue Edmund Burke. Mr. Burke has expressed his reasons for remaining anonymous in previous posts. Since his blog is being hosted by the Palo Alto Weekly, I think we may assume that some basic fact checking has gone into his posts and that he has been warned against lying or distorting the facts.

Many of us in the community value Mr. Burke's postings. I find them to be even handed and filled with information backed by links to original documentation. I would very much appreciate it if the district administrators, the board members, and their lawyers were as open and above board regarding their sources when they give information to the community.

In the future when you comment under the pseudonym "how stuff works" or any of your other pseudonyms please stick to the topic and avoid bashing the blogger. Since you have pointed out that "all anonymous bloggers" have issues with credibility since no one knows who they are or what their background is, I feel it is only fair to bring up your own anonymity. What is your background or interest in the school district? If you wish to be taken seriously perhaps you should reveal your identity, or failing that, I recommend that you earn online credibility by posting repeatedly and factually under the same pseudonym for a sustained period of time as Edmund Burke has. Until you do that, I have no reason to take any of your sly criticisms of Mr. Burke seriously.

I have no knowledge as to the identity of Edmund Burke. My opinion of him has been formed solely by reading his posts over the last year on Palo Alto Online.


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Posted by Bob, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 5:15 pm

While Mr. Burke's painstakingly microscopic review of the District's actions in these "bullying" cases are somewhat eye opening, missing from EB's critique is any sense of the cost to deal with the incidents being analyzed, in terms of private and public expenditures needed to enforce what seems to be an exceedingly cumbersome, and almost unenforceable, suite of State and Federal laws.
Given the shroud of secrecy that engulfs each of these incidents—the general public has no idea how many incidents of verifiable "bullying" have occurred each year on the various PAUSD sites, nor any idea of how many non-verifiable incidents might have occurred, both on PAUSD sites and off.

Given the numerous documents, and procedures, that EB has described that the PAUSD requires to initiate an "incident review", as well as all of the Staff time (local, County, State, Federal), as well as public/private legal resources that might be applied—the cost in hours for each of these "incidents" must be fairly large—in the tens of thousands of dollars, when all is said and done. For the most part, the PAUSD has not offered any insight into the cost for reviewing, and resolving, these "incidents".
It only takes a couple of minutes to come up with a really gross estimate of these costs, however. Using a simple average number of hours to process a complaint, and an average salary, derived from all of those working on the matter, an average cost could be calculated.

Example:

If a complaint were resolved in ten hours, involving three people, whose average salary was $75/hour, this incident would cost at least $2,250 to handle.

But if, as we are seeing in some of these disability-related incidents, a goodly number of expensive people are involved, the cost to resolve such an incident could grow quite large--

If ten people were required to process/resolve the matter, each with an average salary of $150/hour, and 100 hours were involved—then the estimated cost to close this "incident" could be as much as $225,000. (There could be other costs involved, which are currently not being considered—such as Court costs, should the matter require the oversight of the Court for resolution.)

Given the lack of transparency of the PAUSD, the cost of all of these "bullying" incidents needs investigation. While the Administration made a big deal about assailing members of the public for requesting public records—even going so far as to claim they knew how much time, and how many dollars, were required to satisfy these requests—the PAUSD has not been very forthcoming about the costs associated with what seems to be management-related problems dealing with these matters.

In a previous posting, Mr. EB claimed that about 30% of the student body at the PAUSD had reported being "bullied" during a student survey conducted within the last year, or so. If we were to try to estimate the cost of dealing with handling every one of these incidents, let's crunch a few numbers:

Student Body: 12,000
% Students "Bullied": 30%
Total Number "Bullied": 3,600

Cost/Hour---People Involved---Total Cost
$500----------------5--------------------$9M
1000----------------5-------------------$18M
2000---------------5--------------------$36M
5000---------------5--------------------$90M

Other iterations of this worksheet ended up the costs of "$360M, where 20 people were involved costing $5,000/hour. While the numbers offered are not well presented, neither are they so unrealistic that they can be ignored, or dismissed. It becomes clear that if every incident of "bullying" were to be reported to school officials—then a tremendous cost to enforce these vague laws would be imposed on the taxpayers. Oh, and we would need to do this same calculation for every school district in the US (~14,400).

It doesn't take long to see that the people who created this legislation had no idea about how to enforce these laws, or the cost of said enforcement. It's very hard to understand why these incidents can't be handled locally—and not require the heavy-handed imposition of Federal law, which seems blind to the cost of enforcement.


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Posted by IB Brokovich, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 6:07 pm

@How Stuff Works: Methinks you have some kind of pathological obsession with trying to prove that Mr. Burke is doing something illegal. It's almost as if you some special interest in not having the very good information he has coming out in public. I, for one, am so grateful for all of the intelligence and energy Mr. Burke has put into uncovering the facts surrounding all of the issues he has covered. Can you prove anything Mr. Burke has said wrong? Please, if you can please let us know. I don't want to have the feeling that Mr. Burke has sold us a bill of unsubstantiated facts. I looked up a few of the things he has referred to and found him to be spot on.

Why don't you take a look at what is the driving force in your comments? It looks like fear to me......or maybe terror. The truth will set us all free. I am frankly quite tired ob being told untruths by PAUSD about everything being fine in the district. I am tired of my tax dollars being turned over to PR people and FF and F law firm amongst other things. Our teachers, staff and students need those funds. We need a school board that will finally stand up and show Skelly the door. He has misstepped far too many times and our district can't afford him financially. We can't afford him in the area of honor. We can't afford to have Skelly pull the reputation of our district further into the sewer. The school board can do the right thing whenever they like or we can just wallow in their inept leadership and see how much that does for our kids who are still suffering.

My good friend from the East Coast (her kids attend a prestigious prep school there currently) was going to move here but when she looked into our district she had second thoughts. She wants a healthy and functional district to educate her children. Test scores be damned.

Edmund, I have been watching you but have been too busy with other investigations to chime in for a while. I just smelled a rat in the "how stuff works" comments. I have been very disturbed to learn that there is a hacker in our midst. REALLY! Whoever is responsible should be ashamed for this disgraceful behavior. Please see you mental health professional asap as you need some serious assistance.



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Posted by bunyip, a resident of Adobe-Meadows,
on Dec 28, 2013 at 6:22 pm

the helicopter parents are the worst of the bullies - sorry your kid is not going to Stanford - move on.


 +  Like this comment
Posted by how stuff works, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 8:22 pm


Regarding hacking accusations: not me.


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Posted by parent, a resident of Palo Alto High School,
on Dec 28, 2013 at 8:40 pm

Wasn't everyone curious as to who Deep Throat was? It's only natural to want to know who is exposing problems anonymously.


 +  Like this comment
Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 10:00 pm

@Bob, thank you for your comment. In fact, though, the large majority of school districts are complying with Federal law, and are not being bankrupted as a result. Given the hundreds of thousands of dollars in hard costs, including legal fees, associated with PAUSD\'s failure to comply, along with the staff time, it seems likely to me that it would be cheaper to comply with the law than not. At least the outcome would be better for all concerned, not least for the children involved.

As to the desirability of having federal civil rights law, the original finding last year that PAUSD violated the civil rights of a disabled child at Terman provides some good evidence. Left to their own devices, local officials may not act to protect children from discrimination -- not necessarily for invidious reasons, but possibly because of organizational failings, local politics, lack of training, etc. Leaving those children with no recourse to outside authorities means giving them no alternative but to suffer the consequences of discrimination, which can be severe.

@Eileen1 and IB Brockovich, thank you for your support of this blog. I am gratified by your interest in the material I am presenting.

@bunyip: I have heard it said frequently that young bullies often have parents who are well-connected within the school. I can\'t find any evidence for the hypothesis that there is a relationship between having overprotective parents and being a bully. There is one study suggesting that there is a relationship between having overprotective parents and being bullied, but the author admitted that the causal arrows could just as easily point the other direction (that parents of bullied children tend to try to protect them) which pretty much makes that study meaningless. If you know of any evidence, feel free to post it.

@stuff and @parent. I believe you are receiving plentiful feedback from me and from the other readers that people do not want to debate my identity, credentials, or the validity of the blog itself. You are not being deleted for disagreeing on substance -- you have not as yet presented any disagreement on substance. Everyone, including me, has welcomed any dispute you might have with the arguments and evidence I am presenting.




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Posted by parent, a resident of Palo Alto High School,
on Dec 28, 2013 at 10:15 pm

EB - Very few people are reading this blog. Your views are high because it's the same people clicking on it. Look at how few independent commenters there are. I still can't figure out why you are so focused on policy because most people know policy only exists to appease the lawyers and protect institutions against lawsuits. Unfortunately, most employees are totally unaware of policies and frankly, policies don't prevent mistakes being made. Why you don't focus your efforts on preventing the problem of bullying, instead of focusing on the distribution of justice, continues to amaze me. What is your motivation? My opinion is that only a lawyer can follow your arguments so most people will read them and think, oh, that sounds good.


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Posted by village fool, a resident of another community,
on Dec 28, 2013 at 10:19 pm

@Edmund Burke - Thank you for your incredible research!

I stated on your previous blog that I stand corrected. I think that you are not wasting your time, I hope that you are ahead in time. I wrote hope, since if PAUSD will follow you it will be a huge step forward.

I have to be extremely careful about the the way I write the following, I am giving it a shot:

I think that currently you are performing the same type of work that was performed by those who looked into Al Capone tax issues. Looking into his tax was very important, by the end of the day the tax inquiries ended his other more disturbing actions.

In NO way I am comparing PAUSD to Al Capone.

I am trying to compare the way of getting into the heart of the matter in both cases. I think you are doing an extremely important job. It had to start with an issue that can be tracked, documented etc.

I suspect that have you chosen any other aspect of the PAUSD, your talents would have produced the same type of credible research and concerning outcome. It had to be about issues that are very clear and straight forward – tax, in the Al Capone case. Policies here, in the PAUSD case.

Sadly, it is a long and windy and costly road.

By the end of the day it is about the well being of so many children.

(I posted the above in my blog - Web Link)


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Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 28, 2013 at 10:33 pm

@parent. Thank you for commenting on substance. As you might suspect I disagree about the importance of policies. I think that far from merely existing "to appease the lawyers and protect institutions against lawsuits," policies establish the expectations for conduct for students, parents, and staff. Without them, everyone must improvise every encounter. Rules are contingent on the individuals who hold particular positions, and when those individuals change (when a school gets a new principal, for example) all the rules are subject to change. This subjects people to potentially arbitrary conduct (thus, my pseudonym).

The reason that laws require particular policies and procedures is not to have a talismanic effect on lawsuits -- if policies are not followed, they are no help in that department. It is to prevent the violation of rights in the first place. When mandated procedures are followed, rights violations are fewer, students do better, and schools can focus on education rather than ricocheting from crisis to crisis. That is better for everyone.

I do think that your view is consistent with that of many people in the district (I discussed this above). That is regrettable. It is the reason, for example that the district is now under investigation by OCR again for failing to respond to a disability discrimination complaint regarding the implementation of a 504 plan -- one year after it entered into a Resolution Agreement on that exact topic. When policies are viewed as window dressing rather than as the rules of the road, we will continue to repeat this pattern.

In terms of the relative merits of prevention and remediation, I think both are important. I don't see it as either/or and wonder why you do, and why you are so vehement about it. The district has a number of bullying prevention programs (the fact that each site is free to select its own programs without much attention to comparative efficacy is a concern). What it does not at this time have is a consistent and lawful mechanism for responding to discrimination and bullying when it does occur.



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Posted by Reader , a resident of Addison School,
on Dec 29, 2013 at 11:59 am

Thanks EB for sticking to the facts. I read this blog and so do many of my friends by the way parent. Not everyone who reads posts. I have been surprised at how many people read it. If I had one request it is that EB would write more often and on some other topics in addition to bullying. Has anyone looked at homework lately? Or what about tutoring? I think there is a lot of unfairness in classes. These are good topics too. A lot of things are affecting kids today. Hope to read more of this blog.


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Posted by Bob, a resident of Another Palo Alto neighborhood,
on Dec 29, 2013 at 12:39 pm

> the large majority of school districts are complying with Federal law,
> and are not being bankrupted as a result

This is not knowable, without a Federal Compliance Monitor being assigned to every school District in the nation. The fact that we generally don't hear about these issues is doubtless a factor of: 1) low levels of verifiable "bullying", 2) few complaints initiated by students/parents, 3) general compliance with Federal law by most school districts, 4) low interest by media.

However, if you are aware of data that proves compliance in the most of the 14,400 school districts (more-or-less), please share this data with us.

I would suggest that the whole area of compliance with Federal law is generally unknown to most people. The OCR is reactive—so it seems that it only gets involved in individual situations based on complaints from parent(s) in a given district. Beyond that—just how much activity in every school district in the US by OCR are you suggesting?

Previous data posted on the CA CDE web-site for "bullying" in the PAUSD showed about five actions for one year. Beyond that, it would seem that there is not much "bullying" going on, or a lot of non-reporting.

I stand by my suggesting that, for the most part, these laws are vague, and unenforceable if there were to really be any significant misconduct on the part of the student body, at large, particularly with some suggesting that the schools should be involved with "cyber-bullying" that goes on off-site, and not involving any school networking capability.


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Posted by Bob, a resident of Another Palo Alto neighborhood,
on Dec 29, 2013 at 1:27 pm

> Beyond that, it would seem that there is not much "bullying"
> going on, or a lot of non-reporting.

The CDE now posts data on Expulsions and Suspensions for each school district, which identifies the reason for each of these actions. The suggestion in my post that there were only five verifiable "bullying" events during that reportable year needs to be modified to reflect that only five events were considered as significant enough to warrant a suspension/expulsion-—leaving us with no idea to what extent other verifiable "bullying" was reported to the Administration.

Can't remember anyone posting on this topic actually referring to PAUSD data documenting the number of reports of "bullying" made by students/parents. Maybe it's time to make that suggestion to the Board of Trustees, and the Superintendent.


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Posted by Eileen1, a resident of Midtown,
on Dec 29, 2013 at 4:30 pm

Bob,

I believe it is difficult to refer to PAUSD data on reports of bullying because the district tries to handle bullying at the site level and does not aggregate data from each school to look at how much bullying is reported across the district. Furthermore, since the district has not used the Uniform Complaint Procedure in the past, and appears to still be disinterested in using it, there is no one form that a parent can fill out and KNOW that it will make to the district administration level. Without a uniform way for parents, students and teachers to report bullying it is almost impossible to know what the actual level of bullying is in the district. The only "data" I have seen the district office provide at School Board meetings was a questionnaire in which students self reported if they felt "safe" at school or not, and also if they had ever been "bullied" in school.

Superintendent Skelly has indicated that he does not believe there is a large bullying problem in the district - I gather he believes this based on anecdotal evidence. I find this ironic because if the problem is not very large shouldn't it be relatively easy to handle it according to state and federal law? If the problem is not very large then wouldn't it be less expensive to provide assistance to the students in need rather than pay lawyers to fight off the requests that some students and families have made of the district? If you look at previous articles that the Weekly has printed, and at documentation the district has provided to the public, you can easily see how much the district's legal fees have gone up since Mr. Skelly became superintendent. I am specifically referring to the fees the district pays for legal work done by the firms that handle issues such as special needs students and bullying issues.

Speaking as a Palo Alto taxpayer, I would much prefer that my tax dollars be spent helping children rather than paying lawyers to fight off legitimate requests for additional help that some of our district's children need.


 +  Like this comment
Posted by Addison Dad, a resident of Professorville,
on Dec 29, 2013 at 4:56 pm

As the parent of two special-needs kids, I am extremely grateful that you keep prodding the PAUSD into complying with State and Federal anti-bullying laws. That the Superintendant and the Board members demur over this issue is beyond me. How/when can we vote them out of office? Can we sue them for non-compliance?


 +  Like this comment
Posted by Walt Hays dad, a resident of Community Center,
on Dec 29, 2013 at 6:03 pm

@Bob
The district has admitted to being legally non-compliant in regards to bullying of protected classes. The first time was when Dr. Skelly signed the OCR resolution agreement that found PAUSD non-compliant with federal law in regards to policies and procedures involving civil rights of our students.

The district also self reported as non-compliant to the California Department of Education in regard to Seth's law as reported by Terry Lobdell in this paper on November 6, 2013:

"By the district's own report on a recent state survey, Palo Alto has been missing legal deadlines when it comes to compliance with state anti-bullying laws. Palo Alto is among 20 percent of districts statewide reporting that they had not yet complied with Seth's Law, effective July 2012, according to a State Auditor's report released in August." see Web Link

As a tax payer I expect elected officials to comply with state and federal laws. I have grown weary of the complacency and inability to properly manage our schools.

Thank you Mr. Burke for your diligence to guide this ship back on course. At this point you are our only hope.


 +  Like this comment
Posted by Bob, a resident of Another Palo Alto neighborhood,
on Dec 29, 2013 at 8:30 pm

> The district has admitted to being legally non-compliant in regards
> to bullying of protected classes.

Well, at least in the cases that were referred to the OCR. If you are suggesting that the District has confessed to pervasive "bullying" of "protected classes", I don't believe that they actually have said that. If I am wrong, could you please provide a link to a relevant confession?

> I believe it is difficult to refer to PAUSD data on reports of
> bullying because the district tries to handle bullying at the site
> level and does not aggregate data from each school to look at how
> much bullying is reported across the district.

Given the near-hysteria exhibited in the postings on this topic--it's really difficult to take much of this as meaningful without data to back up the claims of pervasive failures on the part of the Administration. I agree with those that are disappointed that a common procedure for processing these situations has not been adopted by the Board/Administration--but that would seem to be a problem that is solved politically. How many of you posting on this topic have written to the BoT on this matter?

> Without a uniform way for parents, students and teachers to report
> bullying it is almost impossible to know what the actual level of
> bullying is in the district.

While I disagree that it is impossible to know the level of "bullying" in the District based on a lack of common reporting--I believe that we are in agreement that no one knows how much "bullying" is really going on in the District.

My memory was a bit hazy as to the data reported to the State regarding Expulsions/Suspensions from "bullying". It seems that for 2011-2012, the following was reported:

PAUSD: Expulsions: 0, Suspensions: 1, Other actions: 5.

As a point of reference I looked up the same data for a couple other local school districts:

San Jose Unified: Expulsions: 0. Suspensions: 109, Other Actions: 0
Fremont Unified: Expulsions: 0, Suspensions: 38, Other Actions: 0
Ravenswood Elem: Expulsions: 0, Suspensions: 10, Other Actions: 0

We would need to normalize the suspension data against some norm, such as 1,000 students to be able to do a direct comparison of this data, but hopefully we can see that the PAUSD has the lowest number of suspensions of the group chosen.

If anyone wants to suggest that this data is not reliable, at least where the PAUSD is concerned, then please make your case--but I would appreciate something more than "he said, she said" as supporting documentation.


 +  Like this comment
Posted by Walt Hays dad, a resident of Community Center,
on Dec 29, 2013 at 9:37 pm

@Bob
This blog is about legal compliance with State and Federal law regarding policies and procedures around bullying; not the frequency of bullying in our district. The OCR is still monitoring PAUSD because we have not complied with the resolution agreement signed in December 2012.

Here is a link to a fact sheet on Seth's law that explains why the law was passed and what steps should have been put in place effective July 1, 2012. Web Link It is the board's responsibility as our elected officials to ensure that this and other laws are followed by our district.


 +  Like this comment
Posted by Edmund Burke, a resident of Another Palo Alto neighborhood,
on Dec 29, 2013 at 10:41 pm

@Eileen1, Addison dad , Bob, and WH Dad -- thank you for your comments and for following these issues. With respect to Addison Dad's question about whether or not a lawsuit is possible to compel legal compliance, the OCR complaint filed by the Terman family (as well as the complaints filed by other families at Duveneck and Jordan and the Paly compliance review) are aimed at that goal.

A private lawsuit for money damages and/or injunctive relief would also serve that purpose and may serve it better in some ways. Money, as they say, talks. When organizations incur damage awards or have to pay settlements to resolve lawsuits it can provide a significant impetus and incentive for change. Some organizations change only when they face litigation. Litigation tends to focus the mind. It is not the way that people envision it. It doesn't generally involve a dramatic day in court. Rather it involves a lengthy process known as discovery in which all of the documents and papers relevant to the matter in question come to light and become public (remember the tobacco litigation?) and many of the individuals involved provide depositions -- that is, they are questioned under oath by opposing counsel about the case.

Then there is bad publicity attendant to the public disclosures of documents. In educational litigation involving minor civil rights, documents would be redacted, but there would still be a flow of information including internal email and other correspondence, and a flow of disclosures regarding what went wrong, where the processes broke down, and who made the various mistakes. The public disclosures are often one of the reasons that civil rights advocates have pursued litigation as a social change strategy.

At the end of the process there may be a financial settlement, or -- more rarely -- a damages award. There can be declaratory and injunctive relief as well. That is what you are referring to in your question -- "can we sue them for noncompliance"? That would involve an order to follow the law in the future.

In theory, any of the invdividuals who have alleged that their childrens' rights have been violated by bullying could sue. In cases for money damages, the bar is higher than it is with OCR. OCR will find a district in noncompliance if it knew or should have known about the bullying but did not respond adequately. In a lawsuit for money damages, the district is only liable if it had actual knowledge of the harassment and displayed what is known as 'deliberate indifference' in the face of that knowledge. Whether or not those circumstances exist would typically be a jury question (that is, a question of fact, not of law).

A school district that has an appropriate, legally compliant policy that has been followed, that responded to complaints, and that attempted to intervene in order to stop the harassment and remediate its effects would generally not meet this standard even if the actions it took were not 100% effective. Deliberate indifference is quite difficult to show.

In the Terman case, however, it may well be that the district meets that high bar, based solely on the facts that are in the OCR Letter of Finding published on this website.

OCR reported that the district did have actual knowledge -- that many school officials knew that the bullying was taking place. There were numerous repeated complaints. Effective action was not taken. In many cases, OCR found that no action was taken at all. There was no disability discrimination policy. District staff were not truthful with the OCR investigators and stated that they had no record of who had done the bullying when in fact they did have those records according to OCR. It is very difficult to say that there is no genuine issue of material fact such that a reasonable jury could not conclude on the basis of that evidence that the district was deliberately indifferent (the standard applied at a defendant's motion for Summary Judgment). This is a complicated way of saying that there is enough evidence of illegality that the question would likely go to a jury -- an unpleasant prospect for most defendants.

So, in answer to your question, yes. However, there are many reasons that suits are often not filed. Most people whose rights are violated do not sue. There is much empirical research that demonstrates this fact. Most people "lump it." They don't sue -- they just want to get some help for their child and get on with their lives. Palo Altans may find this difficult to believe at this point, but one of the most well-documented facts in socio-legal studies is that most discrimination victims don't even file formal complaints with the employer or school that discriminated against them. And even for those who do file a formal internal complaint, that is as far as it ever goes in the vast majority of cases.

Most people are quiescent and accept their misfortune and get on with their lives and have no interest in any further trouble. They fear retaliation.

For someone to file a complaint with a governmental body -- let alone go to the press or sue -- signals a state of desperation and a total loss of trust and confidence in the system's ability to produce a fair result. The only people who file such complaints believe that it can't get any worse for them.

That is why these complaints are so worrisome. Although 6 may not seem like an enormous number, empirical research tells us that for every one of them, there are many more people who have had similar experiences but who have not filed complaints. The lack of a defined process or policy tends to guarantee that this is the case.

But what about @Bob's correct observation that PAUSD has a low number of suspensions? It is probably the case that because suspension is a metric that is reported to the state that PAUSD takes pride in having a low number of significant disciplinary determinations. Because there is no district level recordkeeping or reporting of any kind regarding bullying, and no way to know what discipline was or was not imposed (so long as it is short of a suspension) there is no basis for using that number to conclude that there is little serious bullying. All that I think you can conclude from that is that there were few suspensions.

Discriminatory harassment and discipline are two different things. Although a student is eligible to be suspended for engaging in serious bullying based on discrimination, it is not required that that be the outcome. It is important not to conflate the two processes as they are different. Regardless of what discipline is imposed on the bully, if any, the district still has a duty under the law to respond effectively to end the harassment, ensure that it does not recur, and to remedy the effects of the harassment on the victim. This is a separate obligation and discipline is unrelated to it.


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Posted by Former Paly Parent, a resident of Palo Alto High School,
on Dec 30, 2013 at 8:35 am

To help answer some of the questions posed above, below is some pertinent information previously published in the Weekly:

In June 2013, a story entitled: How often does bullying happen in Palo Alto?

Web Link

In November 2013, a story entitled: New school district bullying policies given 'green light' by feds and state

Web Link

Excerpt from the November story:

"By the district's own report on a recent state survey, Palo Alto has been missing legal deadlines when it comes to compliance with state anti-bullying laws. Palo Alto is among 20 percent of districts statewide reporting that they had not yet complied with Seth's Law, effective July 2012, according to a State Auditor's report released in August.

"The State Auditor's report was commissioned by the legislature last year out of concern that Seth's Law, named for a 13-year-old student who died by suicide after years of anti-gay bullying, was not being adequately implemented at the state and local levels.

"Seth's Law mandated districts to update policies to: prohibit harassment and bullying based on protected characteristics (disability, race, sexual orientation, etc.); require school personnel to intervene when they witness an act of bullying or harassment; implement a process (the UCP) to receive, investigate and resolve complaints of harassment and bullying (including a timeline to investigate and resolve complaints, and an appeals process); and protect complainants from retaliation. Seth's Law also required posting and publicizing complaint policies and procedures to staff, parents and students, and to maintain documentation of complaints and their resolution.

"The State Auditor's survey also showed Palo Alto to be among only 14 percent of districts responding "no" to the question of whether they had complied with the 2008 "Safe Place to Learn Act," the predecessor to Seth's Law."

Please note that the November story contains links to the State Auditor's report, as well as to the school district's response to the State Auditor's survey regarding compliance with anti-bullying laws.


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Posted by Reader, a resident of Addison School,
on Dec 30, 2013 at 9:40 am

I can't believe that:

1. The forms show that the district still isn't following state law or it's own resolution agreement. Can the district lose state or federal funds due to this defiance ? And is it defiance? Mr. Burke implies that it is incompetence but what if it's less benign? Didn't I read that Barbara Mitchell was arguing that PAUSD should thumb its nose at the Feds? She's board prez now.

Who drafted and approved these useless forms? What did we pay for that?

2. This district plans on having everything handled secretly at the sites no matter what the law says. If we didn't have Burke we wouldn't even know. We'd get press releases and spin. This blog is the best idea the weekly has had in a long time so thanks to whoever decided to have it. We would just be in the dark without Burke and the Weekly.


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Posted by Bob, a resident of Another Palo Alto neighborhood,
on Dec 30, 2013 at 1:14 pm

Just for the record, the definition of "bullying" from the CA Ed. Code--

Web Link

(r) Engaged in an act of bullying. For purposes of this
subdivision, the following terms have the following meanings:
(1) "Bullying" means any severe or pervasive physical or verbal
act or conduct, including communications made in writing or by means
of an electronic act, and including one or more acts committed by a
pupil or group of pupils as defined in Section 48900.2, 48900.3, or
48900.4, directed toward one or more pupils that has or can be
reasonably predicted to have the effect of one or more of the
following:
(A) Placing a reasonable pupil or pupils in fear of harm to that
pupil's or those pupils' person or property.
(B) Causing a reasonable pupil to experience a substantially
detrimental effect on his or her physical or mental health.
(C) Causing a reasonable pupil to experience substantial
interference with his or her academic performance.
(D) Causing a reasonable pupil to experience substantial
interference with his or her ability to participate in or benefit
from the services, activities, or privileges provided by a school.
(2) (A) "Electronic act" means the creation and transmission
originated on or off the schoolsite, by means of an electronic
device, including, but not limited to, a telephone, wireless
telephone, or other wireless communication device, computer, or
pager, of a communication, including, but not limited to, any of the
following:
(i) A message, text, sound, or image.
(ii) A post on a social network Internet Web site, including, but
not limited to:
(I) Posting to or creating a burn page. "Burn page" means an
Internet Web site created for the purpose of having one or more of
the effects listed in paragraph (1).
(II) Creating a credible impersonation of another actual pupil for
the purpose of having one or more of the effects listed in paragraph
(1). "Credible impersonation" means to knowingly and without consent
impersonate a pupil for the purpose of bullying the pupil and such
that another pupil would reasonably believe, or has reasonably
believed, that the pupil was or is the pupil who was impersonated.
(III) Creating a false profile for the purpose of having one or
more of the effects listed in paragraph (1). "False profile" means a
profile of a fictitious pupil or a profile using the likeness or
attributes of an actual pupil other than the pupil who created the
false profile.
(B) Notwithstanding paragraph (1) and subparagraph (A), an
electronic act shall not constitute pervasive conduct solely on the
basis that it has been transmitted on the Internet or is currently
posted on the Internet.
(3) "Reasonable pupil" means a pupil, including, but not limited
to, an exceptional needs pupil, who exercises average care, skill,
and judgment in conduct for a person of his or her age, or for a
person of his or her age with his or her exceptional needs.
(s) A pupil shall not be suspended or expelled for any of the acts
enumerated in this section unless the act is related to a school
activity or school attendance occurring within a school under the
jurisdiction of the superintendent of the school district or
principal or occurring within any other school district. A pupil may
be suspended or expelled for acts that are enumerated in this section
and related to a school activity or school attendance that occur at
any time, including, but not limited to, any of the following:
(1) While on school grounds.
(2) While going to or coming from school.
(3) During the lunch period whether on or off the campus.
(4) During, or while going to or coming from, a school-sponsored
activity.
(t) A pupil who aids or abets, as defined in Section 31 of the
Penal Code, the infliction or attempted infliction of physical injury
to another person may be subject to suspension, but not expulsion,
pursuant to this section, except that a pupil who has been adjudged
by a juvenile court to have committed, as an aider and abettor, a
crime of physical violence in which the victim suffered great bodily
injury or serious bodily injury shall be subject to discipline
pursuant to subdivision (a).
(u) As used in this section, "school property" includes, but is
not limited to, electronic files and databases.
(v) For a pupil subject to discipline under this section, a
superintendent of the school district or principal may use his or her
discretion to provide alternatives to suspension or expulsion that
are age appropriate and designed to address and correct the pupil's
specific misbehavior as specified in Section 48900.5.
-----


 +  Like this comment
Posted by Management please, a resident of Crescent Park,
on Dec 31, 2013 at 2:09 pm

Responding to Burke's comment that the criticism of Charles Young, the Associate Superintendent, may be unfair: I agree. The top leadership of the organization set the tone and priorities. That means the Board of Ed and the Superintendent. If board members and the CEO make complying with the law a priority, it will happen. If they don't, it won't. I would lay this at the feet of Skelly and the current and former school board presidents, Tom and Mitchell. Blaming underlings misses the point that they are executing on their bosses priorities.

As the old Russian saying goes, the fish rots from the head.


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Posted by Skung, a resident of Another Palo Alto neighborhood,
on Jan 3, 2014 at 5:06 pm

If only blame for the mismanagement of PAUSD was only that of Kevin Skelly with some from the board. Nope, Charles Young definitely is responsible for the latest bullying forms debacle. Young was hired in 2011 to replace Virginia Davis as the Associate Superintendent, or second in command next to Skelly. Watching him over the past two years, certainly one can see that he has not knocked our socks off in terms of his performance, and often, he has needed Skelly to speak for him at the board meeting presentations. One could take that underperformance to absolve him of responsibility of the many failures of this administration, but no, he is certainly one of the major players, and in fact, he is the person in charge of the Uniform Complaint Procedure, the OCR complaints and violation, not to mention a whole bunch more. I believe he has received the same raises as the other administrators. Has he earned it? Has he earned a fourth year in this district? If Skelly were gone, would you want Young leading this district? Are these not fair questions that the public can ask of our leadership?


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Posted by either/or, a resident of Southgate,
on Jan 4, 2014 at 3:54 pm

Is Charles Young incompetent or is he just following the orders of Kevin Skelly? Either way, it's not the discussion we want to have about our school officials -- particularly where the subject is bullying. I don't know the answer but I do know that when that's the question of the day, there's a problem. Please school board, just stop the bleeding.


 +  Like this comment
Posted by village fool, a resident of another community,
on Jan 4, 2014 at 7:33 pm

@either/or - if the question of the day is this bleeding which is apparently only one of multiple symptoms indicating deterioration/neglect, would you ask now, would you trust now, again, the same Dr. for any type of advice or action?


 +  Like this comment
Posted by Skung, a resident of Another Palo Alto neighborhood,
on Jan 8, 2014 at 7:27 pm

Dear school board, why have you forsaken us? Is all of this okay with you? Remember, what you permit, you promote, and you have permitted so much incompetence and so many secrets. We will forgive you, but it's years overdue to put these people on leave immediately.


 +  Like this comment
Posted by Busy Mom, a resident of Another Palo Alto neighborhood,
on Jan 10, 2014 at 3:18 am

Again, Edmund Burke, THANK YOU! I wish we didn't need you, but boy do we ever! I am still shocked at how the board, Skelly, Young continue to flaunt state and federal laws because they think they are "above them." They so obviously don't care about kids who are bullied, especially our most vulnerable ones with special needs. (Reminds me of how the Republicans treat the poor and unemployed). I wish that the OCR could withhold federal and state funds to our district until it complied with the Agreement and ALL applicable laws. How powerless our we parents as "stakeholders" and taxpayers who have to watch them waste resources, time, and money? I have a great idea! Let's totally ignore the OCR Agreement and continue to pay our old expensive law firm, hire a new lawyer, but not implement a new Bullying policy, and flaunt all relevant state and federal laws on disability, harassment, and bullying? Sounds like a great idea, right? How crazy are these people? I agree with previous posts: laws are GOOD and useful! Unfortunately there are a lot of laws on bullying and harrassment, but so what? How ridiculous to complain about having laws! Adults who are mature and honest learn the laws and obey them. Big deal. Grow up! What is wrong with Skelly and board that they don't see that it\\\'s their duty to uphold all state and federal laws that protect kids! Either do your damn jobs, or quit and let more responsible, honorable people take over. OMG, I am so sick of them not dealing with reality! By the way, speaking of ways to be honest and not waste taxpayers\\\' money, did you know that the OCR would have given the district FREE trainings on the how to implement the UCP as part of the Resolution agreement, but Skelly and group said, "no thanks." I would have said, "Of course, thank you OCR, please use your expertise to train our teachers, staff, and principals!" But then I am not like them. I am an honest, responsible adult who knows right from wrong and cares about helping kids. They live in an alternative, fantasy, bubble of "we don't care what anyone says, we will continue to do it our way (at the site-level) until someone in power forces us to change." Did you know that one of the OCR cases has now moved to the federal jurisdiction because the state OCR is so tired of the b__s__t from our district? It seems like the only thing that might make our district do the right thing is to get sanctioned and funds held back as punishment. It's really the only way these goons are going to change their ways. Unless....I don't know. Help me, Edmund!


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Posted by village fool, a resident of another community,
on Jan 19, 2014 at 9:10 pm

@Edmund Burke - A totally off topic question, if I may.
On Jan 2, 2014 I posted the following comment on Web Link
The comment disappeared, completely. No trace that I ever posted.
I am wondering if you can share your insight as to the reasons that had my comment removed this way?

Posted by village fool, a resident of another community
0 minutes ago
village fool is a registered user.
@Never been more disgusted – Back in July you wrote:
"…Or maybe I will continue to teach my students that their democratic duty is to criticize their elected and paid leaders to ensure that they are representing us. My union president may be silent right now, but I will not be."
I wished you, then, that you voice will be heard. I decided, then, to try to follow up with you.
I want to think that you also teach the virtues of free speech, First Amendment etc.

"teachers too" ended her/his comment here ( Web Link) saying: "… they are the people we pay to care for our kids, and they are all part of the problem. Until they recognize that and stop playing the game of silence, then only then will we be on the way to improvement."

All correlates nicely to your July's comment, above.

Wishing you that your voice will be heard and inspire your students. Many agree that teachers' personal modeling can go a long way.
Happy New year!


 +  Like this comment
Posted by village fool, a resident of another community,
on Jan 28, 2014 at 12:51 am

@Edmund Burke -
Thank you for your incredible research delivered in a clear, down to earth way.
I am very curious about your take of the latest, leading to tomorrow's agenda. All tightly connected to the issues you addressed.
I am pretty sure that I am not the only one interested in your perspective. I think that the increasing views of this blog (you started this thread more than a month ago) is quite likely a clear indication of a broader interest.

(and Thank you, again, for providing a space free of editing/censoring).


 +  Like this comment
Posted by village fool, a resident of another community,
on Jan 31, 2014 at 4:48 pm

@Edmund Burke - I understood the the Jan 28th meeting was suppose to address the bullying policies. I watched it until almost mid-night. I was appalled by the girl incident. The fact that the incident was not mentioned in the article covering that meeting had me post on my blog on Wednesday, Jan 29th.
Ms. Gaona Mendoza, the adult who accompanied the girl who was shut up in the meeting, honored me and commented - Web Link

Her detailed comment adding info I could not know had me respond to her yesterday, Jan 30th - Web Link

As it turns out, today's editorial supports my yesterday's post. My response yesterday to Ms. Gaona - Mendoza had me relate to same of the issues addressed by today's editorial. Similar issues, very different writing capability, unfortunately. All was clear for the longest time.

(And - it seems to me that it turns out that my comment, above, from Jan 16th turned out to be not an "off topic" comment. )


 +  Like this comment
Posted by village fool, a resident of another community,
on Feb 1, 2014 at 10:49 am

The power of the Watchdog of Democracy. Better late than never, I hope. It is a starting point, I hope.
Ms. Gaona-Mendoza honored me and commented on a post I dedicated to the issue of the Watchdog of Democracy (link #1).
Now that the recording of the Jan 28th PAUSD board meeting became available, the faces tell the story. One picture s worth thousand words.

"I'll Get You My Pretty" commented in the great editorial (link #4) that triggered all this that - "… they are staring straight ahead, eyes slightly downcast, carefully not looking at the child. That look, is the look of a bystander… ".

Anyone who was bullied knows this look.

I was appalled by the way Ms. Gaona – Medzoa was treated on the Oct 8Th meeting. I wrote an open letter to her, including the exact timing of her talk to the board. I wish It was watched, then. (link #2).
May I suggest to watch also the beginning of the meeting – a long celebration of Unity… Compare that to the response to Ms. Gaone-Mendiza.

Both appearances of Ms. Gaona – Mendoza were not mentioned in the articles coverings the PAUSD board meeting. I must admit that I did not watch all board meetings. I suspect that my sampling reflects a pattern – both of the way the board responds and the coverage.

As it turned out, PAUSD was under CDE invertigation on Oct 8th. I related to this issue in (link #3).

@Edmund Burke – The new policies? I have no clue. I did not stay up to 2:00 AM, and I think you may agree that this issue calls for a serious discussion. I guess it is OK to wait a bit, after more than a year has past.

THANK you, again, for your on going dedication and the time you take to educate us in a clear, eye level, graceful way.

Better late than never. I hope.

(I posted the above on my blog - Web Link)


 +  Like this comment
Posted by village fool, a resident of another community,
on Feb 11, 2014 at 1:21 am

Thank you, again.
I think it is important to note that some of the loudest, engaged supporters of policies protecting ALL children are mostly those whose personal kids "belong" to one of the protected subgroups.

While this may be a trivial observation, I think it points to the scars bullying leave. Those who experienced bullying believe, strongly, that ALL should be protected. One can never know the circumstances where bullying will present it's ugly face.


 +  Like this comment
Posted by observation, a resident of Another Palo Alto neighborhood,
on Mar 7, 2014 at 12:43 am

@Skung
" If Skelly were gone, would you want Young leading this district?"

I wish it was Young leaving and not Skelly. Skelly leaving Young before he goes is going to look like some kind of sick revenge on us.



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