http://paloaltoonline.com/print/story/print/2013/03/01/school-district-critics-lawyer-clash-on-federal-probe


Palo Alto Weekly

News - March 1, 2013

School district critics, lawyer clash on federal probe

Office for Civil Rights investigation was 'collaborative, fruitful' process, lawyer says

by Chris Kenrick

A lawyer for the Palo Alto Unified School District and critics of Superintendent Kevin Skelly presented clashing perspectives Tuesday, Feb. 26, on a recent probe by a federal agency of a Palo Alto middle-school bullying case.

Lawyer Laurie Reynolds characterized the investigation by the U.S. Department of Education's Office for Civil Rights (OCR) as a "very productive, collaborative fruitful process," ending with an agreement by the district to revise its bullying policies.

"What it isn't is adversarial — not a court proceeding, not punitive," said Reynolds, who is based in the Oakland office of the firm Fagen Friedman & Fulfrost.

But representatives of the parent group We Can Do Better Palo Alto disputed Reynolds' description, charging that Skelly's failure to take advantage of "early complaint resolution" procedures offered by Office for Civil Rights led to Palo Alto being among just 1 percent of the 1,513 recipients of disability harassment complaints between 2009 and 2012 to end with "letters of finding" by the Office for Civil Rights.

Critic Ken Dauber, who ran unsuccessfully last November for a seat on the board, also disputed Reynolds' assertion that the early complaint resolution is available only if the complaining family is willing to pursue it.

"There are clear misstatements of the actual situation by Ms. Reynolds," Dauber said.

"Early complaint resolution is in fact available upon request of the school district. ... The idea that this agreement wasn't punitive is technically true, but it neglects the last paragraph that says if the district fails to comply there will be a sanction.

"It's simply not true that this is a commonplace event."

Dauber cited a section of the OCR's Processing Manual that reads, "A complaint may be resolved at any time when, before the conclusion of an investigation, the recipient expresses an interest in resolving the complaint."

Dauber's group has called for an independent investigation of "what went wrong" in the case, which resulted in findings in December that the district violated a middle-school student's civil rights by failing to properly and fully investigate persistent complaints of bullying related to the student's disability.

While agreeing that Skelly should have informed them far earlier about details of the investigation, school board members Tuesday did not take up the call for a new probe.

"We did have an independent organization do an investigation here. It was the OCR — that was their job," board member Melissa Baten Caswell said.

"There's been a lot of discussion and work by staff on what went wrong and why we need to do more than we've been doing to resolve this kind of situation."

Skelly said he would return to the board March 12 with a draft of a new bullying policy.

Staff members assured Caswell the policy would contain clear instructions for parents and children on how to make a bullying complaint, including instructions for anonymous reporting.

Board member Barb Mitchell said she had questions about the "legal footing for students and families" raised by what Reynolds described as an Office for Civil Rights definition of bullying that is broader than the definition in the California Education Code.

"According to the OCR, bullying need not include an intent to harm, be directed to a specific target or involve repeated incidents — and that's quite a departure from other definitions we've read and come to expect as school board members," Mitchell said.

"And OCR, the federal government — they're big guys. I can safely say we'd all embrace that standard for student learning purposes if we can find language that assures us it's not disciplinary or punitive," Mitchell said.

As for the collaborative or adversarial nature of the district's dealings with the Office for Civil Rights, Mitchell said she would welcome a "short description from the Office for Civil Rights lawyers who were working with the district.

"There will remain in doubt until we can produce a person from OCR to describe the collaborative nature of this," she said.

READ MORE ONLINE

Documents relating to the Office for Civil Rights investigation and the school district's response have been posted on Palo Alto Online. Search for "District submits responses in bullying case."

Staff Writer Chris Kenrick can be emailed at ckenrick@paweekly.com.

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