Palo Alto Weekly
News - July 12, 2013
In secret, school board weighs not cooperating with federal agency
Board vice-president says Office for Civil Rights is 'strong arming' district into adopting new policies
by Palo Alto Weekly staff
Palo Alto Board of Education members and their attorneys have discussed in closed session and in emails how they might challenge the legal authority of the federal Department of Education to impose on the district new policies on bullying and other issues and possibly even to conduct investigations, the Weekly has learned.
The possible strategy, a far cry from the cooperative and collegial relationship described by district officials and their attorneys in public session, was revealed in emails written by school board Vice President Barbara Mitchell and school district attorney Chad Graff of the Oakland law firm of Fagen Freidman and Fulfrost dated June 7 and June 10.
Mitchell's email, directed to board President Dana Tom, Superintendent Kevin Skelly and the attorneys representing the district, expresses her view that the U.S. Department of Education's Office for Civil Rights (OCR) is "strong arming policy 'agreements' at the school district" and asked questions about what legal means the district might have to counter it.
"Your perspectives on this information would be valuable as we plan next steps," Mitchell wrote. "Please share responses with all board members in ways you see fit."
She asked what could be done to protect the district from "expansive federal requests for information or investigations, and/or protections from subsequently discovered 'violations' unrelated to the complaint, or when there is no complaint at all?" (The timing of Mitchell's email coincides with the notification by the Office for Civil Rights that it was launching a compliance review of the district's policies and procedures on sexual harassment and discrimination, which was initiated without a complaint. See related story on page 3.)
Her email also reveals that the district has made its own Freedom of Information Act request to the Office for Civil Rights for all the evidence compiled, including the agency's written records of interviews in all the civil-rights investigations it has conducted in the district.
Mitchell's email was forwarded on June 10 by Skelly to other board members, with her name removed, along with an email from Graff, indicating they were "in preparation for our discussion tomorrow" (June 11) in a closed meeting of the board.
Graff's email said he would review Mitchell's questions and "bring them into Tuesday's discussion of the District's steps to question OCR actions that are not legally directed and to obtain oversight of OCR actions that are overstepping their authority." He also indicated his law firm had been "pressing OCR for concrete identification of the legal issues that are the bases for their investigations."
The emails, which were posted on the district's website June 26 along with dozens of others among attorneys, board members and staff at the school district, were labeled "Privileged & Confidential Attorney Client Correspondence" and were intended to be redacted from public view, according to both Mitchell and Skelly, who learned they were visible when the Weekly sought their comments on Tuesday.
Mitchell and Skelly both responded by email stating that the emails were "inadvertently" posted on the district's website and requested that the Weekly "refrain from reviewing and/or using these communications for any reason" and delete or destroy any copies. By late Tuesday afternoon, copies had been removed from the district's website.
Mitchell, Tom, Skelly and a spokesperson for the Office for Civil Rights in Washington, D.C., all declined to comment on the contents of the emails or the district's strategies.
It is unclear whether a board majority has authorized the district's lawyers to research ways the district might challenge the authority of the Department of Education, what legal actions were under consideration and what decisions, if any, were reached by the board.
Board members Melissa Baten Caswell and Heidi Emberling both told the Weekly they support cooperating with the Office for Civil Rights and working with it to improve district practices. They would not discuss the June 11 closed session nor speak for the board as a whole. Camille Townsend was unavailable for comment.
In an email to the Weekly, Tom stated that the board's June 11 closed meeting was proper.
"The board's closed session discussion on June 11 of two cases with significant exposure to litigation was properly agendized, and the board's conference with legal counsel was in complete compliance with the agenda item," Tom wrote.
The posted agenda for that closed session stated the board would discuss two cases of "anticipated litigation" that involved facts and circumstances that the district believed were not known to the potential plaintiffs, one of the allowable reasons for a closed session.
Jim Ewert, general counsel of the California Newspaper Publishers Association, speculated that this stated exception could be based on reasoning that if the district were to decide to renege on one of its resolution agreements with the Office for Civil Rights or refused to cooperate with current investigations it could expose itself to legal action by the federal government.
Since the district voluntarily entered into a settlement agreement that committed it to developing and submitting discriminatory harassment policies for Office for Civil Rights approval, it would appear the district's primary option would be to stop complying with the agreement and essentially force the government to either back down or cut off the approximately $5.3 million in federal funds received by the district each year.
Another possibility is that the district is considering not cooperating with a new federal investigation into how Palo Alto High School has complied with laws dealing with peer sexual harassment and assault.
Terry Francke, general counsel of Californians Aware, a citizens' public-access advocacy group, questioned the appropriateness of the closed-session discussion.
"What I think makes the case for hush-hush discussion particularly weak is that this is a controversy purely of law. ... There are no surprise witnesses, experts or evidence to be kept under wraps. And the district's legal theory is precisely what it will lead with, possibly even fully articulating it in a letter to (OCR) announcing its intention to withdraw (from a resolution agreement) if things get that far," Francke said.
Former school board candidate Ken Dauber, co-founder of the parent group We Can Do Better Palo Alto and a regular advocate of more transparency in the operations of the school district, said he found the emails "very distressing."
"The reason that We Can Do Better Palo Alto has been calling for full, prompt, transparent and public discussion of this issue is precisely in order to avoid this kind of inappropriate behind-closed-doors discussion. It now appears that the board is telling the public that it is cooperating with OCR, while at the same time planning in closed sessions to evade federal civil-rights law. The board and district leadership should instead be focusing their attention on ensuring that all of our children receive the fair and equal treatment that they are entitled to," Dauber said in a statement.
In her email, Mitchell suggested that the federal agency didn't currently have the legal authority to mandate district policies on discriminatory harassment because there are two pending bills in Congress that would create that authority with little chance of passage.
"If the prospect of these bills passing is as slim as speculated here, it could explain the interest OCR has in strong arming policy 'agreements' at the school district and state level. It also provides a highly legitimate reason for school districts to avoid acting on policy language before Congress does," Mitchell wrote.
A review of the two bills Mitchell referenced, however, shows that they are unrelated to the legislative authority under which Office for Civil Rights operates. They would enact requirements for bullying policies and grievance procedures to protect all students. Under current federal law, the agency's jurisdiction is limited to allegations of discriminatory harassment based on gender, race, national origin, disability and other so-called "protected" classes. The Palo Alto district's dealings with the Office for Civil Rights have all revolved around cases of discriminatory bullying and harassment.
TALK ABOUT IT
Do you think the Office for Civil Rights is overstepping its authority in investigating school districts for civil-rights violations or imposing new policies? Share your opinion on Town Square on PaloAltoOnline.com.
Posted by Peter Carpenter,
a resident of Atherton
on Jul 12, 2013 at 6:43 pm
Peter Carpenter is a registered user.
Here is the Attorney General's guidance on Closed sessions:
"There are three types of "notice" obligations that accompany the conduct of a closed-session
as a part of a duly noticed meeting. First, each item to be transacted or discussed in a closed
session must be briefly described on an agenda for the meeting. (§ 54954.2(a).) Second, prior
to adjourning into closed session, a representative of the legislative body must orally announce
the items to be discussed in closed session. (§ 54957.7(a).) This requirement may be satisfied
by merely referring to the relevant portion of the written agenda for the meeting. However, the
Act contains specific additional requirements for closed sessions regarding pending litigation
where the body believes it is subject to a significant exposure to potential litigation. (§
54956.9(b)(3).) Third, once the closed session has been completed, the agency must reconvene
in open session, where it may be required to report votes and actions taken in closed session.
"In the case of pending litigation, the legislative body must make
reference in the agenda or publicly announce the specific subsection of section 54956.9
under which the closed session is being held. (§ 54956.9(c).)"
"Oral Announcement Prior to Closed Sessions
In addition to the agenda requirement for regular and special meetings, the Act requires
a representative of the legislative body to orally announce the items to be discussed in
closed session prior to any closed-session meeting. (§ 54957.7(a).) This requirement
may be satisfied by referring to the item by number as it appears on the agenda.
However, such a referral usually would not be sufficient in the case of a closed session
concerning significant exposure to litigation.
Pursuant to section 54956.9, a closed session may be conducted in order to permit an
agency to receive advice from its legal counsel. When the impetus for such a closed
session is the agency's exposure to potential litigation, the Act carefully regulates the
circumstances under which a closed session may be called, and the types of
announcement which must accompany such a meeting. (§ 54956.9(b)(3).) These
required disclosures may be made as a part of the written agenda or as a part of the oral
announcement made prior to any closed session. These requirements do not mandate
disclosure of privileged communications exempt from disclosure under the Public
Records Act. (§ 54956.9(b)(3)(F).) A summary of the disclosure requirements
surrounding closed sessions based on an agency's exposure to potential litigation is set
• Where the agency believes that facts creating significant exposure to
litigation are not known to potential plaintiffs, the facts need not be
disclosed. (§ 54956.9(b)(3)(A).)
• Where facts (e.g., an accident, disaster, incident, or transaction) creating
significant exposure to litigation are known to potential plaintiffs, the
facts must be publicly stated on the agenda or announced. (§
• Where the agency receives a claim or other written communication
threatening litigation, reference to the claim or communication must be
publicly stated on the agenda or announced, and the claim or
communication must be available for public inspection pursuant to
section 54957.5. (§ 54956.9(b)(3)(C).)
• Where a person makes a statement in an open and public meeting
threatening litigation, reference to the statement must be publicly stated
on the agenda or announced. (§ 54956.9(b)(3)(D).)
• Where a person makes a statement outside of an open and public
meeting threatening litigation, the agency may not conduct a closed
session unless an agency official having knowledge of the threat makes
a contemporaneous or other record of the statement prior to the
meeting. Reference to the statement must be publicly stated on the
agenda or announced, and the record must be available for public
inspection pursuant to section 54957.5. However, the record, or the
disclosable part thereof, need not identify the alleged victim of unlawful
or tortious sexual conduct or anyone making a threat on their behalf, or
identify a public employee who is the alleged perpetrator of any such
conduct, unless the identity of the person has been publicly disclosed.
C. Report at the Conclusion of Closed Sessions
Once a closed session has been completed, the legislative body must convene in open
session. (§ 54957.7(b).) If the legislative body took final action in the closed session,
the body may be required to make a report of the action taken and the vote thereon to
the public at the open session. (§ 54957.1(a).) The report may be made either orally
or in writing. (§ 54957.1(b).) In the case of a contract or settlement of a lawsuit,
copies of the document also must be disclosed as soon as possible. (§ 54957.1(b) and
(c).) If final action is contingent upon another party, the legislative body is under no
obligation to release a report about the closed session. Once the other party has acted,
making the decision final, the legislative body is under an obligation to respond to
inquiries for information by providing a report of the action. (§ 54957.1(a).)
With respect to litigation, approval given to the body's legal counsel to defend, to seek
or refrain from seeking appellate review, or to appear as amicus curiae in any case
resulting from a closed-session meeting held pursuant to section 54956.9 shall be
reported in open session. (§ 54957.l(a)(2).) The report shall identify the adverse
parties and the substance of the litigation. Where the body has decided to initiate
litigation or intervene in an existing case, the report shall indicate that fact but need not
identify the action, the parties, or other particulars. The report shall specify that once
the litigation or intervention has been formally commenced, the body must, upon
inquiry, disclose such information, unless to do so would jeopardize service of process
or existing settlement negotiations. (§ 54957.l(a)(2).)"
This topic clearly does NOT meet the closed meeting exemption standard and the manner in which the topic was discussed did not conform to the Closed Meeting notice and reporting requirements.
Posted by Edmund Burke,
a resident of Another Palo Alto neighborhood
on Jul 14, 2013 at 9:02 am
There are many problems with PAUSD going down the path advocated by Ms. Mitchell of challenging the authority of the federal government.
Mitchell evidently has persuaded PAUSD to challenge not only particular policy recommendations or remedies suggested by OCR (itself bad enough), but the entire authority of the federal government to enter into the sphere of school civil rights. As articulated by her surrogate, "Saw", Ms. Mitchell is questioning "what in that letter [the April 4, 2011 DCL on sexual violence] is consistent with the US Constitution and Congress' Civil Rights Act, which the Board will follow, and what is not," which it presumably will take upon itself to disregard.
Congress delegated to the Department of Education the authority to ensure that recipients of federal funds, which includes PAUSD, comply with the civil rights laws of the United States. (Schools that do not wish to accept federal funds still must comply with certain civil rights mandates, such as those by the US Constitution or Section 1983). This is called a "conditional spending" regime and means that in exchange for federal funding, the districts agree to follow the laws, regulations, and other requirements set by the Office for Civil Rights of the Department.
Under our system of federalism, following these rules and engaging with OCR is optional. If a district does not wish to follow them, it can merely stop receiving the federal funding. Therefore, no district is forced to do anything. It's relationship to DoE and to OCR is entirely voluntary. PAUSD opted into that relationship.
The idea that the Dear Colleague Letter offering guidance on how districts are to implement Title IX violates the Constitution or exceeds statutory authority is specious and is based on a fundamental misconception about the nature of Dear Colleague Letters and what the government calls "significant guidance documents."
The Department of Education has determined that the 4/4/11 DCL on sexual assault is a "significant guidance document." This means that it falls under the Office of Management and Budget's Final Bulletin for Agency Good Guidance Practices. Such documents are issued by OCR "to provide recipients with information to assist them in meeting their obligations, and to provide members of the public with information about their rights under the civil rights laws and implementing regulations" enforced by OCR. Dear Colleague Letters do not add requirements to applicable law, but "provide information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations."
Under the OMB Bulletin governing "significant guidance documents (see: Web Link) issued in 2007 under President George W. Bush, guidance such as the DCL are considered essential to the operation of government. Far from condemning such guidance, OMB found that there is "enormous value" in agency guidance documents. "Well-designed guidance documents serve many important or even critical functions in regulatory programs. Agencies may provide helpful guidance to interpret existing law through an interpretive rule or to clarify how they tentatively will treat or enforce a governing legal norm through a policy statement. Guidance documents, used properly, can channel the discretion of agency employees, increase efficiency, and enhance fairness by providing the public clear notice of the line between permissible and impermissible conduct while ensuring equal treatment of similarly situated parties."
In order to ensure uniformity and good practices, OMB prescribed procedures applicable to such guidance documents, including requiring an opportunity for public feedback on such documents. OCR met these requirements with the 4/4/11 DCL and it was lawfully issued as a helpful guidance document designed to ensure that schools understand that sexual violence is a form of sexual harassment. This determination -- that sexual violence, and related bullying -- is a form of sexual harassment prohibited by Title IX is a longstanding holding from court decisions. See, e.g., See, e.g., Jennings v. Univ. of N.C., 444 F.3d 255, 268, 274 n.12 (4th Cir. 2006) (acknowledging that while not an issue in that case, a single incident of sexual assault or rape could be sufficient to raise a jury question about whether a hostile environment exists, and noting that courts look to Title VII cases for guidance in analyzing Title IX sexual harassment claims); Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 259 n.4 (6th Cir. 2000) ("'[w]ithin the context of Title IX, a student's claim of hostile environment can arise from a single incident'" (quoting Doe v. Sch. Admin. Dist. No. 19, 66 F. Supp. 2d 57, 62 (D. Me. 1999))); Soper v. Hoben,195 F.3d 845, 855 (6th Cir. 1999) (explaining that rape and sexual abuse "obviously qualif[y] as…severe, pervasive, and objectively offensive sexual harassment"); see also Berry v. Chi. Transit Auth., 618 F.3d 688, 692 (7th Cir. 2010) (in the Title VII context, "a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment"); Turner v. Saloon, Ltd.,595 F.3d 679, 686 (7th Cir. 2010) (noting that "'[o]ne instance of conduct that is sufficiently severe may be enough,'" which is "especially true when the touching is of an intimate body part" (quoting Jackson v. Cnty. of Racine,474 F.3d 493, 499 (7th Cir. 2007))); McKinnis v. Crescent Guardian, Inc., 189 F. App'x 307, 310 (5th Cir. 2006) (holding that "'the deliberate and unwanted touching of [a plaintiff's] intimate body parts can constitute severe sexual harassment'" in Title VII cases (quoting Harvill v. Westward Commc'ns, L.L.C., 433 F.3d 428, 436 (5th Cir. 2005))).
Despite the fact that courts have long considered sexual violence and related bullying to be a violation of Title IX in the school context, schools have been slow to implement appropriate policies. Therefore, in 2011, the Department issued a guidance document to assist schools in understanding the law, and the obligations that fall on recipients of federal funding in this regard.
These requirements may in certain instances exceed those imposed by courts in the context of lawsuits for money damages. For example, in a suit for money damages, a district must have actual knowledge of a sexually hostile environment, while OCR requires recipients of federal funding to act when they "know or reasonably should know." In many cases, this will be a distinction without a difference. In the case of PAUSD, the district did have actual knowledge via the Verde articles and the prior disclosures to teachers, counselors, the principal, and other district staff. Another difference is that OCR recommends that districts receiving federal funds use a "preponderance of the evidence" standard rather than a "clear and convincing evidence" standard for making determinations in sexual assault investigations, often another distinction without a difference.
But in every case, the decision about whether or not to follow OCR guidance is voluntary and with the district because the district always has the option to refuse the federal funding and go its own way.
Barbara Mitchell is advocating a third way, easily recognizable to those who have experience with far-right fringe interpretations of the Constitution. That is to assert that these requirements are "unconstitutional conditions" on the grant of federal money and that the district, in being required to comply with Title IX, is being required to do things in exchange for the money, that violate "state's rights" and local control.
Saw articulates this fringe theory when she says that the Dear Colleague Letter "tromps on the constitutional rights of US citizens and reach far beyond what Congress intended when it wrote the Civil Rights Act. Requirements in it that violate the constitution are illegal and would be illegal for school districts to implement and follow."
This is an argument with a long Constitutional history. It was advanced unsuccessfully in the 1920s against the Maternity Act, then against unemployment insurance, farm price supports and other programs of the New Deal in the 1930s. It gained new life when southern states, enraged by the federal government's use of conditional federal funding to enforce school desegregation in the 1960s, argued that it was illegal for the federal government, through OCR, to enforce civil rights laws on funding recipients. Such arguments have been repeatedly rejected by courts however that has not diminished their lustre for far-right fringe theorists.
Recently, of course, some of those far right fringe advocates have gained seats on the Supreme Court and that has breathed new life into the idea that Title IX is a particular problem. Chief Justice Roberts is known to be an enemy of Title IX, for example. Web Link
At their limit, of course, these arguments have been used to attempt to dismantle the entire U.S. Department of Education, a policy goal long on the wish-list of far-right ideologues.
So now the question is, should Palo Alto, California be a hospitable home for such arguments? Should Palo Alto Unified School District go to federal court arguing that it should not have to prevent, remediate, or address sexual assault and bullying based on sexual violence, but it should still be entitled to receive federal education dollars? That is precisely the argument that Barb Mitchell is suggesting, when she asks whether the district has a right to bar the federal government from ensuring that our students' civil rights are protected at school.
Why would we want to advance such an argument? Why would Palo Alto, California wish to become the test case for whether or not OCR guidance interpreting Title IX as requiring sound sexual violence policies somehow violate state's rights, the Tenth Amendment (never mind that the State of California will not agree), local control, or any other principle of right-wing legal theory?
Why we want Palo Alto to stand for the principle that sexual assault is a local issue and the federal government cannot require us to do anything about it, but must continue to give us the money regardless?
What is to gain here for our district? The right to continue to maintain a sexually hostile environment and to not implement sound policies in response to cases of sexual harassment? And how much of local tax dollars should be expended in payments to Fagen, Friedman and Fulfrost (Web Link) and their attorneys Chad Graff (Web Link) and Lenore Silverman (Web Link) in an almost certainly fruitless effort to overturn the US Government's authority to protect our female students from sexual harassment?
Once framed in this way it is obvious why this discussion is occurring in secret. The electorate of Palo Alto would not support a quixotic legal campaign in the service of right-wing, Tea Party-inspired quasi-constitutional theories. Nevertheless, that is the theory being advanced under the cover of closed meetings and redacted communications by this school board.
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